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 UCSB LIBRARY
 
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 Extract of a Letter from Chancellor Kent to the Author, 
 
 NEW YORK, August 27, 1840. 
 DEAR SIR : 
 
 " I am much pleased with the ability, fidelity and accuracy with which you have stated 
 the Answers as drawn from the Text. I approve of the work and wish it success, for I think 
 it is well calculated to facilitate and promote the study and diffusion of the elementary prin- 
 ciples of constitutional and municipal law embodied in the commentaries." 
 
 JAMES KENT.
 
 
 THE 
 
 MOST IMPORTANT PARTS 
 
 OF 
 
 KENT'S COMMENTARIES, 
 
 REDUCED TO 
 
 QUESTIONS AND ANSWERS. 
 
 BY 
 
 ASA KINNE. 
 
 SECOND EDITION. 
 
 NEW YORK: 
 PUBLISHED BY W. E. DEAN, 2 ANN STREET, 
 
 COLLINS, KEESE, & CO., 254 PEARL STREET. 
 PHILADELPHIA : THOMAS, COWPERTHWAITE & CO., 255 MARKET STREET. 
 
 1840.
 
 DISTRICT OF COLUMBIA, TO WIT : 
 
 Be it remembered, that on the twenty-sixth day of October, Anno Domini, eighteen hundred 
 and thirty-eight, Asa Kinne of the said District, deposited in this office the title of a book, the 
 title of which is in the words following : " The most important parts of Kent's Commen- 
 taries, reduced to questions and answers ; by Asa Kinne :" the right whereof he claims as 
 proprietor. In conformity with an Act of Congress, entitled " An act to amed the several 
 acts respecting Copy Rights." 
 
 EDM. J. LEE, Clerk of the District. 
 In conformity that the above is a true copy, 
 from the records of the District Court for the 
 District of Columbia, I, Edtn. J. Lee, the 
 Clerk thereof, have hereunto set my hand 
 and affixed the seal of my office, this twenty- 
 sixth day of October, eighteen hundred and 
 thirty-eight. 
 
 EDM. J. LEE, C. D. C. 
 
 Entered according to an Act of Congress, in the year 1838, by Asa Kinne, in the Clerk's 
 Office of the District Court for the District of Columbia. 
 
 DEAN, PRINTER.
 
 TO THE 
 
 HON. JAMES KENT, L.L.D. 
 
 LATE CHANCELLOR OF THE STATE OF NEW YORK, 
 
 THIS VOLUME IS INSCRIBED, 
 
 WITH SENTIMENTS OF THE MOST PROFOUND RESPECT AND ESTEEM 
 FOR HIS TALENTS AND INTEGRITY, AND THE RARE 
 COMBINATION OF VIRTUES WHICH GUIDED HIM 
 IN THE DISCHARGE OF HIS DUTIES AS 
 A PUBLIC OFFICER, AND ADORN 
 HIS CHARACTER IN 
 PRIVATE LIFE.
 
 PREFACE. 
 
 To demonstrate the usefulness of the following work, which is now 
 offered to the public generally, as well as to the legal profession, a pre- 
 face might be deemed a work of supererogation, as its utility must be ob- 
 vious to the general reader. 
 
 The few remarks which follow, are given more out of a compliance to 
 custom, than as an apology for the work itself. 
 
 A writer in the British Register very judiciously observes, that " Of 
 the subjects of human knowledge, law is far from being the least impor- 
 tant ; within the last fifty years, not only general law, but the law of the 
 country in which we live, has been considered as an object of liberal in- 
 quiry, and well deserving the attention of the general scholar." 
 
 The labours of the venerable chancellor Kent, have contributed in no 
 small degree to disseminate this branch of useful knowledge ; through his 
 unwearying exertions and untiring zeal, this beautiful, but abstruse and 
 difficult study has been rendered at once pleasing and instructive. 
 
 " The work of Sir William Blackstone, by the elegance of its style, its 
 lucid arrangement and finished execution, is so well adapted to render 
 the study of the law attractive, and to give a knowledge of the constitu- 
 tion and laws of England, well deserving the attention of every liberal 
 mind, that it has been, (though for many years, more from necessity than 
 choice,) very properly placed in the hands of every law student, but as 
 much of those admirable Commentaries relate to the political constitution 
 of England, so different from our own, to its peculiar institutions, and to 
 rights and duties, public and private, not existing in this country ; an 
 American work, exhibiting our own constitution, laws, usages, and civil 
 relations, had long been wanted. In the full maturity of his understand- 
 ing, with a mind long habituated to legal investigations and researches, 
 and with sound and enlightened views of jurisprudence, no man, perhaps, 
 could have been better fitted, than chancellor KENT to execute such a 
 work, and it may diminish, in some degree, the regret felt for the loss 
 sustained by the public and the legal profession, in being deprived of his
 
 VI PREFACE. 
 
 valuable services on the bench, to know how usefully to the world, and 
 honourably to himself, he has employed his time and talents in its per- 
 formance."* 
 
 Since its publication the demand for it has been very great. I will 
 even presume to say, that no work of the kind ever attained so great a 
 circulation in so short a time,t the masterly production of judge Black- 
 stone not excepted. In the southern and western portions of our repub- 
 lic it is to be found in almost every family, and indeed its circulation has 
 become so general, as to warrant the assertion that there are few indi- 
 viduals of polished education, who have not read "Kent's Commentaries ;" 
 and in the libraries of the learned of every profession, they will ever hold 
 a conspicuous place. 
 
 It will be seen that the present work is intended to be a companion to, 
 and not a substitute for, the Commentaries themselves, and it is obvious 
 to the most superficial observer, that it does not contain all that is neces- 
 sary to be known of the original ; on the contrary, its object is to assist 
 the student in the perusal of the Commentaries. The compiler has found 
 the manuscript to be of incalculable benefit to himself, in the progress of 
 his studies, and the advantages which he has himself derived from it, he 
 now wishes to extend to his professional friends, and to the literati in 
 general. 
 
 * American Portrait Gallery, No. XVII., p. 10. 
 
 t The first volume appeared November, 1826; the second volume was published 
 in November, 1827 ; the third in 1828, and the fourth in 1830.
 
 PREFACE 
 
 TO THE SECOND EDITION. 
 
 IN publishing the present edition of his compendium of the Commen- 
 taries on American Law, the compiler deems it proper to state that the 
 first edition which consisted of a few copies only and which was hastily 
 printed from old manuscript, has (owing to the unprecedented popularity 
 of the Commentaries themselves and the great and well earned fame of 
 the Commentator, which renders every thing in law literature with which 
 it is connected an object of interest to the American public,) met with an 
 unexpected demand. In consequence of which a larger edition is now 
 published, and in which is incorporated more than one hundred pages of 
 important matters not contained in the former edition. An Index and 
 Glossary are also affixed, referring to question and page, which it is hoped 
 will be some addition to the general utility of the work. 
 
 N. B. The Commentaries referred to are the third edition, published 
 in 1836.
 
 CONTENTS. 
 
 LECTURE I. 
 
 Of the foundation and history of the law of nations, . . . 9 
 
 LECTURE II. 
 
 Of the rights and duties of nations in a state of peace, . 15 
 
 LECTURE III. 
 Of the declaration and other early measures of a state of war, . . 19 
 
 LECTURE IV. 
 Of the various kinds of property liable to capture^ .... 23 
 
 LECTURE V. 
 Of the rights of belligerent nations in relation to each otherj * -. 24 
 
 LECTURE VI. 
 Of the general rights and duties of neutral nations, . . .27 
 
 LECTURE VII. 
 Of restrictions upon neutral trade, ...... 30 
 
 LECTURE VIII. 
 
 Of truces, passports, and treaties of peace, .... 34 
 
 LECTURE IX. 
 Of offences against the law of nations, ...... 37 
 
 LECTURE X. 
 Of the history of the American union, ...... 39 
 
 LECTURE XI. 
 Of congress, ......... 39 
 
 LECTURE XII. 
 Of the judicial constructions of the powers of congress, . 41
 
 X CONTENTS. 
 
 LECTURE XIII. 
 
 Of the president, . . . . . . . ' . . 44 
 
 LECTURE XIV. 
 Of the judiciary department, ....... 45 
 
 LECTURE XV. 
 Of the original and appellate jurisdiction of the supreme court, . 48 
 
 LECTURE XVI. 
 
 in respect to the parties, . . . . 
 
 i law, aim 
 
 . . 49 
 
 LECTURE XVII. 
 
 
 Of the district and territorial courts of the United States, 
 
 51 
 
 LECTURE XIX. 
 
 
 Of constitutional restrictions on the powers of the several states, 
 
 54 
 
 LECTURE XX. 
 Of the statute law, ..... 
 
 Fift 
 
 LECTURE XXI. 
 
 
 Of reports of judicial decisions, . . . 
 
 61 
 
 LECTURE XXIII. 
 
 
 LECTURE XXIV. 
 
 
 Of the absolute rights of persons, .... 
 
 LECTUR! xxv. 
 
 63 
 
 Of aliens and natives, . . 
 
 67 
 
 LEC PURE XXVI. 
 
 
 Of the law concerning marriage, .... 
 
 69 
 
 LECTURE XXVII. 
 
 
 Of the law concerning divorce, .... 
 
 72 
 
 LECTURE XXVIII. 
 
 
 Of husband and wife, . .- . . .' . 
 
 75 
 
 LECTURE XXIX. 
 
 
 Of parent and child, . .. ..';. 
 
 82 
 
 LECTURE XXX. 
 
 
 Of guardian and ward, . , , .......' 
 
 . 83 
 
 LECTURE XXXI. 
 
 
 Of infants, . . . . . 
 
 86 
 
 LECTURE XXXII. 
 
 
 Of master and servant, ...... 
 
 ; ss
 
 CONTENTS. XI 
 
 Page 
 LECTURE XXXIII. 
 
 Of corporations, ........ 89 
 
 LECTURE XXXIV. 
 Of the history, progress and absolute rights, of property, , .93 
 
 LECTURE XXXV. 
 Of the nature and various kinds of personal property, . . .93 
 
 LECTURE XXXVI. 
 Of title to personal property by original acquisition, . . . .95 
 
 LECTURE XXXVII. 
 Of title to personal property by transfer and by act of law, . . .97 
 
 LECTURE XXXVIII. 
 Of title to personal property by gift, ...... 99 
 
 LECTURE XXXIX. 
 Of contracts, ......... 100 
 
 LECTURE XL. 
 Of bailment, ......... 106 
 
 LECTURE XLI. 
 Of principal and agent, . . . . . . . 108 
 
 LECTURE XLII. 
 Of the history of maritime law, . . . . . . 117 
 
 LECTURE XLIII. 
 Of the law of partnership, ....... 120 
 
 LECTURE XLIV. 
 Of negotiable paper, ........ 128 
 
 LECTURE XLV. 
 Of title to merchant vessels, ....... 136 
 
 LECTURE XLVI. 
 Of the persons employed in the navigation of merchant ships, . . 140 
 
 LECTURE XLVII. 
 Of the contract of affreightment, . . . . . 145 
 
 LECTURE XL VIII. 
 Of the law of marine insurance, ...... 151 
 
 LECTURE XLIX. 
 Of maritime loans, ........ 163 
 
 LECTURE L. 
 Of insurance of lives and against fire, . . . . . . 166
 
 Xll CONTENTS. 
 
 Paga 
 LECTURE LI. 
 
 Of the foundation of title to lands, ...... 167 
 
 LECTURE LII. 
 Of incorporal hereditaments, . ..... 168 
 
 LECTURE LIII. 
 Of the history of feudal tenure, ...... 172 
 
 LECTURE LIV. 
 Of estates in fee, ........ . 175 
 
 LECTURE LV. 
 
 Of estates for life, . ... 183 
 
 LECTURE LVI. 
 
 Of estates for years, at will, and at sufferance, .... 194 
 
 LECTURE LVII. 
 Of estates upon condition, ..... . 195 
 
 LECTURE LVIII. 
 Of the law of mortgage, ... .... 196 
 
 LECTURE LIX. 
 Of estates in remainder, ....... 'Ml 
 
 LECTURE LX. 
 Of executory devises, . ..... 205 
 
 LECTURE LXI. 
 Of uses and trusts, . .... 208 
 
 LECTURE LXII. 
 Of powers, . . . ..... 211 
 
 LECTURE LXIII. 
 Of estates in reversion, ..... . 213 
 
 LECTURE LXIV. 
 
 Of a joint interest in estates, ^ ".'*'. ...... 214 
 
 LECTURE LXV. 
 
 Of title by descent, . . . . . 217 
 
 LECTURE LXVI. 
 
 Of title by escheat, by forfeiture, and by execution, . . . 220 
 
 LECTURE LXVII. 
 
 Of title by deed, . ... .'.''. . 222 
 
 LECTURE LXVIII. 
 
 Of title by will or devise, ... . , . 233
 
 KENT'S COMMENTARIES, 
 
 REDUCED TO 
 
 QUESTIONS AND ANSWERS. 
 
 LECTURE I. 
 
 OF THE FOUNDATION AND HISTORY OF THE 
 LAW OF NATIONS. 
 
 1. When the United States ceased to be a part of the British empire, 
 and assumed the character of an independent nation, to what rules did 
 they become subject ? 1 
 
 They became subject to that system of rules which reason, morality, 
 and custom, had established among the civilized nations of Europe, as 
 their public law. 
 
 2. What did congress claim, and.to what did they profess obedience, 
 during the war of the American revolution ? 1 
 
 They claimed cognizance of all matters arising upon the law of na- 
 tions, and they professed obedience to that law, according to the general 
 usages of Europe. 
 
 3. What are we to understand by that law 1 1 
 
 That code of public instruction which defines the rights, and pre- 
 scribes the duties of nations in their intercourse with each other. The 
 faithful observance of this law is essential to national character, and to 
 the happiness of mankind. 
 
 4. Upon what, " according to the observation of Montesquieu," is it 
 founded ? 1 
 
 It is founded on the principle that different nations ought to do as 
 much good in peace 1 , and as little harm in war as possible, without in- 
 jury to their true interests. 
 
 5. What difference of opinion has existed between writers concerning 
 the foundation of international law ? 2 
 
 2
 
 10 KENT'S COMMENTARIES, [VOL. i. 
 
 It has been considered by some as a mere system of positive institu- 
 tions, founded upon consent and usage ; while others have insisted that it 
 was essentially the same as the law of nature applied to the conduct of 
 nations in the character of moral persons, susceptible of obligations and 
 laws. But it would be improper to separate this law entirely from natural 
 jurisprudence, and not to consider it as deriving much of its force, and dig- 
 nity, and sanction, from the same principles of right reason, and the same 
 views of the constitution and nature of man, as those from which the 
 science of morality is deduced. We ought not, therefore, to separate the 
 science of public laws from that of ethics, nor encourage the dangerous 
 suggestion, that governments are not so strictly bound by the obligations 
 of truth, justice, and humanity, in relation to other powers, as they are in 
 the management of their own local concerns. 
 
 6. How is the law of nations divided? 2 
 Into natural and positive. 
 
 7. How are states, or bodies politic, to be considered ? 3 
 
 As having a public will, capable and free to do right or wrong. 
 
 8. Of what does the law of nations consist? 3 
 
 It is a complex system, composed of various ingredients. It consists 
 of general principles of right and justice, equally suitable to the govern- 
 ment of individuals in a state of natural equality, and to the relation and 
 conduct of nations ; of, a collection of usages and customs, the growth of 
 civilization and commerce ; and a code of conventional or positive law. 
 In the absence of these latter regulations, the intercourse and conduct of 
 nations are to be governed by principles fairly to be deduced from the 
 rights and duties of nations, and the nature of moral obligation. 
 
 9. Is international law of ancient or modern origin? 4 
 
 As understood by the European world, and by us, it is the offspring 
 of modern times. The most refined states among the ancients, seem to 
 have had no conception of the moral obligations of justice and humanity 
 between nations, and there was no such thing in existence as the science 
 of international law. They regarded strangers and enemies as nearly 
 synonymous, and considered foreign persons and property as lawful prize. 
 Their laws of war and peace were barbarous and deplorable. So little 
 were mankind accustomed to regard the rights of persons or property, or to 
 perceive the beauty of public order, that, in the most enlightened ages of 
 the Grecian republics, piracy was regarded as an honourable employment. 
 There were powerful Grecian states that avowed its practice ; and the 
 fleets of Athens, the best disciplined and most respectable naval force in 
 all antiquity, were exceedingly addicted to piratical excursions. 
 
 10. What was the received opinion among the Greeks as to the recip- 
 rocal rights and duties of their own cities and states between them- 
 selves ? 4
 
 I,EC. I.] REDUCED TO QUESTIONS AND ANSWERS. 11 
 
 That they were bound to no duties, nor by any moral law, without 
 compact, and that prisoners taken in war had no rights, and might law- 
 fully be put to death, or sold into perpetual slavery, with their wives and 
 children. There were, however, many feeble efforts, and some success- 
 ful examples are to be met with in Grecian history, in favour of national 
 justice. The object of the Amphictyonic council was to institute a law of 
 nations among the Greeks, and settle contests between Grecian states by 
 a pacific adjustment. 
 
 1 1 . What was the practice of the Romans, in their intercourse with 
 foreign states ? 5 
 
 They exhibited much stronger proofs than the Greeks of the influ- 
 ence of regular law, and there was a marked difference between those na- 
 tions in their intercourse with foreign powers. It was a principle of 
 the Roman government, that none but a sworn soldier might lawfully fight 
 the enemy. The institution of the college of heralds and the fecial law, 
 were proofs of a people considerably advanced in the cultivation of the 
 law of nations as a science ; and yet with what little attention they were 
 accustomed to listen to the voice of justice and humanity, appears but 
 too plainly in their haughty triumphs, their cunning interpretation of trea- 
 ties, their continual violation of. justice, their cruel rules of war, and the 
 whole series of their wonderful successes, in the steady progress of the 
 conquest of the world. 
 
 12. What was the Roman jurisprudence in its most cultivated state? 8 
 
 It was a very imperfect transcript of the precepts of natural justice, 
 on the subject of national duty. It retains strong traces of ancient rude- 
 ness, from the want of the Christian system of morals, and civilizing re- 
 straints of commerce ; we find the barbarous doctrine still asserted, that 
 prisoners of war became slaves jure gentium, and even in respect to for- 
 eign nations with whom the Romans were at peace, but had no particu- 
 lar alliance, it is laid down in the digests, that 1 whoever passed from one 
 country to another, became immediately a slave. 
 
 13. What was the state of international law during the early part of the 
 middle ages? 8? 
 
 The irruption of the northern tribes of Scythia and Germany, over- 
 turned all that was gained by the Roman law, annihilated every restraint, 
 and all sense of national obligation, and civil society relapsed into violence 
 and confusion. Mankind seemed to be doomed to live once more in con- 
 stant distrust or hostility, and to regard a stranger and an enemy as al- 
 most the same. Piracy, rapine, and ferocious warfare, deformed the an- 
 nals of Europe. The manners of the nations were barbarous, and their 
 maxims of war cruel. 
 
 14. What nations are spoken of as early exceptions to this general bar- 
 barity ? 8 
 
 The Visigoths, Saxons, Cicilians and Bavarians, whose laws are cited
 
 12 KENT'S COMMENTARIES, VOL. i. 
 
 by Mr. Barrington, as restraining, by the severest penalties, the plunder of 
 shipwrecked goods, and the abuse of shipwrecked seaman, and as ex- 
 tending the rights of hospitality to strangers. But notwithstanding a few 
 efforts of this kind to introduce order and justice, and though municipal 
 law had undergone great improvement, the law of nations remained in the 
 rudest and most uncultivated state down to the period of the 16th century. 
 
 15. By what means did the Emperor Charlemagne endeavour to im- 
 prove the condition of Europe ? 9 
 
 By the introduction of order, and the propagation of Christianity; 
 and we have cheering examples, during the darkness of the middle ages, 
 of some recognition of public laws, by means of alliances, and the submis- 
 sion of disputes to the arbitrament of a neutral power. 
 
 16. What five institutions are enumerated by Mr. Ward, existing about 
 the period of the llth century, and which in a very essential degree con- 
 tributed to improve the lav/ of nations ? 9 
 
 1. The feudal system. 2. The concurrence of Europe in one form 
 of religious worship. 3. The establishment of chivalry. 4. The nego- 
 tiations and treaties forming the conventional law of Europe. 5. The 
 settlement of a scale of political rank and precedency ; but of all the 
 causes of reformation, the most weight is to be attributed to the intimate 
 alliance of the great powers as one Christian community. 
 
 17. What was the influence of Christianity ? 10 
 
 It was very efficient toward the introduction of a better and more 
 enlightened sense of right and justice among the governments of Europe. 
 It taught the duty of benevolence to strangers, of humanity to the van- 
 quished, of the obligation of good faith, and of the sin of murder, revenge, 
 and rapacity. 
 
 18. What were the principal means by which the church acquired and 
 exercised its authority ? 10 
 
 By its councils, or convocations of clergy, which formed the nations 
 professing Christianity into a connection resembling a federal alliance ; 
 and those councils sometimes settled the titles and claims of princes and 
 regulated the temporal affairs of the Christian powers. The confederacy 
 of the Christian nations was bound together by a sense of common duty 
 and interest, in respect to the rest of mankind. 
 
 19. What was then the general principle of belief and action ? 10 
 
 That it was not only right, but a duty, to reduce to obedience, for the 
 sake of conversion, every people who professed a different faith from their 
 own. To make war upon infidels, was, for many ages, a conspicuous 
 part of European law ; apd this gross perversion of the doctrines and 
 spirit of Christianity, had at least one propitious effect upon the Christian 
 powers, inasmuch as it led to the cultivation of peace and union be-
 
 LIC. I.J REDUCED TO QUESTIONS AND ANSWERS. 13 
 
 tween them, and to a more free and civilized intercourse. The notion that it 
 was lawful to invade and subdue Mahometan and pagan countries, con- 
 tinued very long to sway the minds of men ; and it was not till after the 
 age of Grotius and Bacon, that this error was entirely eradicated. Lord 
 Coke held, that an alliance for mutual defence was unlawful between 
 Christians and Turks ; and Grotius was very cautious as to the admission 
 of the lawfulness of alliances with infidels, and he had no doubt that all 
 Christian nations were bound to assist each other against the attacks of 
 the infidels. Even Lord Bacon thought it a matter of so much doubt, as 
 to propound it seriously as a question, whether a war with infidels was 
 not the first in order of dignity, and to be preferred to all just temporal 
 quarrels ; and whether a war with infidels might not be undertaken mere- 
 ly for the propagation of the Christian faith, without other cause of hos- 
 tility. 
 
 20. What influence had chivalry upon the laws of war ? 1 1 
 
 It introduced declarations of war by heralds ; and to attack an ene- 
 my by surprise was deemed cowardly and dishonourable. It dictated hu- 
 mane treatment to the vanquished, courtesy to enemies, and the virtues of 
 fidelity, honour, and magnanimity, in every species of warfare. 
 
 21. What influence had the introduction of the civil law ? 11 
 
 It contributed largely to more correct and liberal views of the rights 
 and duties of nations. This grand monument of the embodied wisdom of 
 the ancients, when once known and examined, must have reflected a 
 broad stream of light upon the feudal institutions, and the public councils 
 of the European nations. We accordingly find that the rules of the civil 
 law were applied to the government of national rights, and they hare 
 contributed very materially to the erection of the modern international 
 laws of Europe. From the 13th to the 16th century, all controversies be- 
 tween nations were adjudged by the rules of the civil law. 
 
 22. What effect had treaties, conventions, and commercial ordinances, 
 upon the law of nations 1 12 
 
 They gave to it a new character, and rendered it more and more a 
 positive or instituted code. 
 
 23. What was the object of commercial ordinances and conventions t 
 12 
 
 To improTe and refine public law and the intercourse of nations, by 
 protecting the persons and property of merchants in cases of shipwreck, 
 and against piracy, and against seizure, and arrest upon the breaking out 
 of war. 
 
 24. What is understood by an auxilliary treaty ? 12 
 A defensive treaty.
 
 14 KENT'S COMMENTARIES, [VOL. i. 
 
 25. What effect was given to those treaties? 12 
 
 One nation was allowed to be an enemy to a certain extent only. 
 Thus, if, in time of peace, a defensive treaty had been made between one 
 of the parties to a subsequent war and a third power, by which a certain 
 number of troops were to be furnished in case of war, a compliance with 
 this engagement implicated the auxiliary as a party to the war, only so 
 far as her contingent was concerned. The nations of Europe had ad- 
 vanced to this extent in diplomatic science so early as the beginning of 
 the 1 3th century, and such a refinement was wholly unknown to the an- 
 cients. 
 
 26. What was understoood by a treaty of subsidy ? 12 
 
 It was a treaty by which the troops of one nation, to a definite ex- 
 tent, could be hired for the service of one of the belligerents, without 
 affording ground for hostility with the community which supplied the 
 specific aid. 
 
 27. What does the efforts that were made upon the revival of com- 
 merce, to suppress piracy, and protect shipwrecked property, show ? 13 
 
 They show a returning sense of the value and obligations of national 
 justice. The case of shipwrecks may be cited as a particular and strong 
 instance of the feeble beginnings, the slow and interrupted progress, and 
 final and triumphant success, of the principles of public right. 
 
 28. What two emperors had the honour of having first renounced their 
 claim to shipwrecked property, in favour of the owners 1 13 
 
 Hadrian and Antonius. 
 
 29. What contributed gradually to suppress the criminal practice of 
 plundering or confiscating all shipwrecked property, and of treating mari- 
 ners, who were thus unfortunate, as pirates? 13 
 
 The revival of commerce, and with it a sense of the value of order, 
 commercial ordinances, particular conventions, and treaties between sov- 
 ereigns, by rendering the regulations upon that subject a branch of the 
 public law of nations. 
 
 30. To what is imputed the progress of humanity in the treatment of 
 prisoners ? 14 
 
 To the influence of conventional law, establishing a general and in- 
 discriminate exchange of prisoners, rank for rank, and giving protection to 
 cartel ships for that purpose. 
 
 31 . What effect was produced by the admission of resident ambassadors 
 at each sovereign's court 1 15 
 
 It was an important improvement in the security and facility of na- 
 tional intercourse ; and this led to the settlement of a great question, which
 
 LEC. II.] REDUCED TO QUESTIONS AND ANSWERS. 15 
 
 was frequently discussed in the 15th and 16th centuries, concerning the 
 inviolability of ambassadors. It became at last to be a definitive principle 
 of public law, that ambassadors were exempt from all local jurisdiction, 
 civil and criminal. 
 
 LECTURE II. 
 
 OF THE RIGHTS AND DUTIES OF NATIONS IN A 
 STATE OF PEACE. 
 
 1. How do nations, in a state of peace, stand in relation to each 
 other ? 21 
 
 They are equal, and entitled to claim equal consideration for their 
 rights, whatever may be their relative dimensions or strength, or however 
 greatly they differ in government, religion, or manners. This perfect 
 equality, and entire independence of all distinct states, is a fundamental 
 principle of public law. It is a necessary consequence of this equality, 
 that each nation has a right to govern itself as it may think proper, and no 
 one nation is entitled to dictate a form of government, or religion, or a 
 course of internal policy, to another. No state is entitled to take cogni- 
 zance or notice of the domestic administration of another state, or of what 
 passes within, as between the government and its own subjects. 
 
 2. What circumstances may justify an interference ? 23 
 
 An impending danger arising from the domestic policy of another 
 state. A rational fear is said to be a justifiable cause of war. The dan- 
 ger must be great, distinct, and imminent, and not rest on vague and uncer- 
 tain suspicion. The British government officially declared to the allied 
 powers in 1821, that no government was more prepared than their own, 
 " to uphold the right of any state or states to interfere where their own 
 security or essential interests were seriously endangered by the internal 
 transactions of another ; that the assumption of the right was only to be 
 justified by the strongest necessity, and to be limited and regulated there- 
 by; that it could not receive a general and indiscriminate application to 
 all revolutionary movements, without reference to their immediate bearing 
 upon some particular state or states ; that its exercise was an exception 
 to general principles of the greatest value and importance, and as one that 
 only properly grows out of the circumstances of the special case ; and ex- 
 ceptions of this description could never, without the utmost danger, be so 
 far reduced to rule, as to be incorporated into the ordinary diplomacy of 
 states, or into the institutes of the law of nations." No form of civil gov-
 
 16 KENT'S COMMENTARIES, [VOL. i. 
 
 eminent which a nation may think proper to prescribe for itself, can be 
 admitted to create a case of necessity, justifying an interference by force. 
 
 3. How are treaties affected by a change of government ? 25 
 
 It is well understood that treaties are not affected, nor positive obli- 
 gations of any kind with other powers, or creditors, weakened by any such 
 mutations. A state neither loses any of its rights, nor is discharged from 
 any of its duties, by a change of government. 
 
 4. What if a state be divided in respect to territory ? 25 
 
 Its rights and obligations are not impaired ; and if they have not been 
 apportioned by special agreement, those rights are to be enjoyed, and those 
 obligations fulfilled, by all the parts in common. 
 
 5. What extent of jurisdiction may a nation exercise over adjoining 
 seas 126 
 
 That is often a difficult question, and of dubious right. As far as a 
 nation can occupy, and that occupancy is acquired by prior possession or 
 treaty, the jurisdiction is exclusive. Navigable rivers which flow through 
 a territory, and the sea-coast adjoining it, and navigable waters included 
 in bays and between headlands and arms of the sea, belong to the sover- 
 eign of the adjoining territory. The open sea is not capable of being pos- 
 sessed as private property. 
 
 6. How does the law of nations regard the freedom of trade ? 32 
 
 As an imperfect right, and necessarily subject to such regulations and 
 restrictions, as each nation may think proper to prescribe for itself. Every 
 state may monopolize as much as it pleases of its own internal and colo- 
 nial trade, or grant to other nations, with whom it deals, such distinctions 
 and particular privileges as it may deem conducive to its interest. 
 / 
 
 7. How far does the right to make commercial treaties extend ? 34 
 
 Every nation may enter into such commercial treaties, and grant 
 such special privileges as they may think proper ; and no nation to whom 
 the like privileges are not conceded, has a right to take offence, provided 
 those treaties do not affect their perfect rights. A state may enter into a 
 treaty, by which it grants exclusive privileges to one nation, and deprives 
 itself of the liberty to grant similar privileges to any other. 
 
 8. What is the law of nations, upon the right of passage over foreign 
 * territory ? 34 
 
 That every nation is bound in time of peace to grant a passage for 
 lawful purposes, over their lands, rivers, and seas, to the people of other 
 states, whenever it can be permitted without inconvenience ; and burthen- 
 some conditions ought not to be annexed to the transit of persons and 
 property. If, however, the government deems the introduction of foreign-
 
 LEC. II.] REDUCED TO QUESTIONS AND ANSWERS. 17 
 
 ers, or their merchandise, injurious to those interests of their own people, 
 which they are bound to protect and promote, they are at liberty to with- 
 hold the indulgence. The entry of foreigners and their effects is not an 
 absolute right, but only one of imperfect obligation, and it is subject to the 
 discretion of the government which tolerates it. 
 
 9. What if a nation possess only the upper parts of a navigable river ? 
 35 
 
 She is entitled to descend to the sea without being embarrassed with 
 useless and oppressive duties or regulations. It is doubtless a right of an 
 imperfect obligation, but one that cannot justly be withheld without good 
 
 10. What is the opinion as to the obligation of states to deliver up crimi- 
 nals fleeing from justice ? 36 
 
 It is declared by some of the most distinguished public jurists, that 
 every state is bound to deny an asylum to criminals, and upon application 
 and due examination of the case, to surrender the fugitive to the foreign 
 state where the crime was committed. It is the duty of government to 
 surrender up fugitives upon demand after the civil magistrate shall have 
 ascertained the existence of reasonable grounds for the charge, and suffi- 
 cient to put the accused upon his trial. The guilty cannot be tried and 
 punished by any other jurisdiction than the one whose laws have been 
 violated. 
 
 The only difficulty in the absence of positive agreement, consists in 
 drawing the line between the class of offences to which the usage of na- 
 tions does, and to which it does not apply, inasmuch as it is understood 
 in practice, to apply only to crimes of great atrocity, or deeply affecting 
 the public safety. 
 
 P. Voet. de statutis,p. 297, says, that the surrender of criminals is de- 
 nied according to the usage of almost all Christian nations, except in cases 
 of humanity. Some foreign jurists hold that crimes committed in one 
 state, may, if the criminal be found in another state, be, upon demand, 
 punished there. 
 
 11. Why are ambassadors allowed to form an exception to the general 
 case of foreigners resident in the country ? 38 
 
 By reason of their being the representatives of their sovereigns, and 
 requisite for negotiations and friendly intercourse. 
 
 12. What if ambassadors insult, or openly attack the laws or govern- 
 ment of the nation to whom they are sent ? 38 
 
 Their functions may be suspended by a refusal to treat with them, 
 or application can be made to their own sovereign for their recall, or they 
 may be dismissed and required to depart within a reasonable time ; and 
 every government has a right to judge for itself, whether the language or 
 conduct of a foreign minister is admissible. The writers on public law 
 go still further, and allow force to be applied to confine or send away an 
 3
 
 18 KENT'S COMMENTARIES, [VOL. 1, 
 
 ambassador, when the safety of the state, which is superior to all other 
 considerations, absolutely requires it. This is all that can be done, for 
 ambassadors cannot, in any case, be made amenable to the civil or crimi- 
 nal jurisdiction of the country. 
 
 13. To what does the distinction, between ambassadors, ministers pleni- 
 potentiary, envoys extraordinary, and resident ministers, relate? 39 
 
 Only to diplomatic precedence and etiquette, and not to their essen- 
 tial powers and privileges. 
 
 14. Maya government refuse to receive an ambassador or minister? 
 40 
 
 It may, and without affording any just cause of war, though the act 
 would, probably, excite unfriendly dispositions, unless accompanied with 
 conciliatory explanations. 
 
 15. How far is a government bound by an act of its minister ? 40 
 
 This will depend upon the nature and terms of his authority. It is 
 now the usual course for every government to reserve to itself the right to 
 ratify or dissent from the treaty agreed to by its ambassador. A general 
 letter of credence is the ordinary letter of attorney, or credential of the 
 minister ; and it is not understood to confer a power upon the minister 
 to bind his sovereign conclusively. 
 
 16. What are consuls ? 41 
 
 Commercial agents, appointed to reside in the seaports of foreign 
 countries, with a commission to watch over the commercial rights and 
 privileges of the nation deputing them. 
 
 17. At what time were consuls first appointed ? 41 
 
 About the 12th century, in the opulent states of Italy, such as Pisa, 
 Lucca, Genoa, and Venice. 
 
 18. Are nations bound to receive foreign consuls ? 43 
 
 Not unless they have agreed to do so by treaty; and a refusal is no 
 violation of the peace and amity between nations. 
 
 19. Are consuls considered as public ministers ? 43 
 
 Not so as to be entitled to the privileges appertaining to that charac- 
 ter, nor are they-under the special protection of the law of nations.
 
 LEC. III.] REDUCED TO QUESTIONS AND ANSWERS. 19 
 
 LECTURE III. 
 
 OF THE DECLARATION AND OTHER EARLY MEA- 
 SURES OF A STATE OF WAR. 
 
 1. What amounts to a just cause of war ? 48 
 
 An injury, either done or threatened, to the perfect rights of a nation, 
 or any of its members, and susceptible of no other redress. War is not to 
 be resorted to without absolute necessity, nor unless peace would be more 
 dangerous and more miserable than war itself. 
 
 2. What is the rule where one nation is bound by treaty to afford as- 
 sistance, in a case of war between its ally and a third power ? 49 
 
 The assistance is to be given whenever the casusfoederis occurs ; but 
 a question will sometimes arise whether the government which is to af- 
 ford the aid, is to judge for itself of the justice of the M r ar on the part of 
 the ally ; and to make the right to assistance depend upon its own 
 judgment. 
 
 Grotius is of opinion, that treaties of that kind do not oblige us to parti- 
 cipate in a war, which appears to be manifestly unjust on the part of the 
 ally; and it is said to be a tacit condition annexed to every treaty made 
 in peace, and stipulating to afford succours in war, that the stipulation is 
 only to apply to a just war. To give assistance to an unjust war, on the 
 ground of the treaty, would be contracting an obligation to do injustice, 
 and no such contract is valid. 
 
 3. What if to grant the succour stipulated would expose the state grant- 
 ing to imminent danger 1 50 
 
 A nation which has agreed to render assistance to another, is not 
 obliged to furnish it when the case is hopeless. Such extreme cases are 
 tacit exceptions to the obligation of the treaty ; but the danger must not 
 be slight, remote, or contingent, for this would be to seek a frivolous cause 
 to violate a solemn engagement. 
 
 4. In what case is not the contract to furnish assistance in a defensive 
 alliance, obligatory upon the parties ? 50 
 
 The condition of the contract does not call for assistance unless the iflfc 
 ally be engaged in a defensive war, for in a defensive alliance the nation 
 engages only to defend its ally, in case he be attacked, and even then we 
 are to inquire whether he be not justly attacked. The defensive alliance 
 applies only to a war first commenced in point of fact against the ally; 
 and the power that first declares, or actually begins the war, makes what 
 is deemed, in the conventional law of nations, an offensive war.
 
 20 KENT'S COMMENTARIES, [VOL. r. 
 
 5. With whom resides the right to declare war? 51 
 
 In ancient Greece and Italy, the right of declaring war resided 
 with the people, who retained, in their collective capacity, the exercise of 
 a large portion of sovereign power. Among the ancient Germans it be- 
 longed also to popular assemblies. But in the monarchies of Europe, 
 which arose upon the ruins of the feudal system, this important preroga- 
 tive was generally assumed by the king. Many publicists consider the 
 power as a part of the sovereign authority of the state, of which the legis- 
 lative department is an essential branch. There are, however, several 
 exceptions to this general position ; for in the limited monarchies 
 of England, France, and Holland, the king alone declares war. In these 
 United States the power to declare war is confided to the legislature of 
 the Union. 
 
 6. What effect has a war, duly declared, upon the private citizens of 
 the belligerent parties ? 55 
 
 Every man is, in judgment of law, a party to the acts of his own 
 
 ' government, and a war between the governments of two nations, is a war 
 
 between all the individuals of the one, and all the individuals of which 
 
 the other nation is composed. Government is the representative of the 
 
 will of all the people, and acts for the whole society. 
 
 7. What is the rule as to the capture of enemy's property found within 
 the territory upon t he breaking out of war ? 56 
 
 According to strict authority, a state has a right to deal as an enemy 
 with persons and property so found within its power, and to confiscate the 
 property, and to detain the persons as prisoners of war. No one, says 
 Bynkershoeck, ever required that notice should be given to the subjects 
 of the enemy to withdraw their property, or it would be forfeited. The 
 practice of nations is to appropriate it at once, without notice, if there be 
 no special convention to the contrary. But, though Bynkershoeck lays 
 down this, as well as other rules of war, with great harshness and severi- 
 ty, he mentions several instances arising in the 17th, arid one as early as 
 the 15th century, of stipulations in treaties, allowing foreign subjects a 
 reasonable time after a war breaks out, to recover and dispose of their ef- 
 fects, or to withdraw them. Such stipulations have now become an estab- 
 lished formula in commercial treaties. 
 
 8. What is the effect of an embargo ? 60 
 
 It is an implied declaration of war, though liable to be explained 
 ' away and annulled by a subsequent accommodation between the nations. 
 The seizure is at first an act equivocal as to the effect, though hostile in 
 the mere execution, and if the matter in dispute terminates in reconcilia- 
 tion, the seizure becomes a mere civil embargo; but if it terminate other- 
 wise, the subsequent hostilities have a retroactive effect, and render the 
 embargo a hostile measure ab initio. The property detained is deemed 
 enemy's property, and liable to condemnation.
 
 LEG. III.] REDUCED TO QUESTIONS AND ANSWERS. 21 
 
 9. In what case may letters of marque and reprisal be granted, accord- 
 ing to the law of nations ? 61 
 
 When one nation has committed some direct or palpable injury to 
 another, as by withholding a just debt, or by violence to persons or pro- 
 perty, and has refused to give any satisfaction. The reprisals may be 
 made in support of the rights of a subject as well as for those of the sove- 
 reign. The commission is not to be issued except in a case clearly just. 
 
 10. What is the law as to the right to confiscate debts, contracted by 
 individuals in time of peace, and which remain due to subjects of the ene- 
 my at the declaration of war ? 62 
 
 In former times the right to confiscate debts was admitted as a doc- 
 trine of nationallaw, and Grotius, PufTendorffand Bynkershoeck pronounced 
 in favour of it. Down to the year 1737, the general opinion of jurists 
 was in favour of the right ; but Vattel says, that a relaxation of the rigour of 
 the rule has since taken place among the sovereigns of Europe. There 
 has frequently been a stipulation in modern treaties, that debts should not 
 be confiscated in the event of war. The treaties between the United 
 States and Colombia in 1 825, and Chili in 1 832, contain such a provision ; 
 but the treaty between the United States and Great Britain in 1795, went 
 further, and contained the explicit declaration that it was "unjust and im- 
 politic " that debts of individuals should be impaired by national dif- 
 ferences. 
 
 11. What if property have been wrongfully taken by the state before the 
 war, and be in the country at the opening of the war ? 65 
 
 Such property cannot be seized, but must be restored. 
 
 12. What is the rule as to trading with the enemy? 66 
 
 That the declaration of war is an absolute interruption and interdic- 
 tion of all commercial correspondence, intercourse, and dealing between 
 subjects of the two countries. This is equally the doctrine of all the au- 
 thoritative writers on the law of nations, and the maritime ordinances of 
 the great powers of Europe, and the received law of this country. 
 
 13. What is the rule as to contracts made with the enemy ? 67 
 
 They are utterly void. The insurance of enemy's property is an il- 
 legal contract. The drawing of a bill of exchange by an alien enemy, on 
 a subject of*the adverse country, is an illegal contract. The remission 
 
 of funds, in money or bills, to subjects of the enemy, is unlawful. 
 
 
 
 14. What are the rules governing ships of war and cartel ships ? 68 
 
 The same interdiction applies to them, and therefore all trade, by 
 means of such vessels, is unlawful, without the consent of both govern- 
 ments concerned. 1 1 is equally illegal for an ally of one of the belligerents, 
 and who carries on the war conjointly, to have any commerce with the
 
 22 KENT'S COMMENTARIES, [VOL. i. 
 
 enemy. A single belligerent may grant licenses to trade with the enemy, 
 and dilute and weaken his own rights at pleasure, but it is otherwise when 
 allied nations are pursuing a common cause. 
 
 LECTURE IV. 
 
 OF THE VARIOUS KINDS OF PROPERTY LIABLE TO 
 
 CAPTURE. 
 
 1. Into what two classes are alien enemies distinguished ? 72 
 
 Into permanent and temporary. A man is said to be permanently an 
 , alien enemy, when he owes a permanent allegiance to the adverse bellige- 
 rent. But he who does not owe a permanent allegiance to the enemy, is 
 an enemy only during the existence and continuance of certain circum- 
 stances. Possession of the soil impresses upon the owner the character of 
 the country, so far as the products of the soil are concerned, wherever the 
 local residence of the owner may be. The produce of a soil bears a hos- 
 tile character for the purpose of capture, and is the subject of legitimate 
 prize, when taken in the course of transportation to any other country. 
 
 2. What if a person have a settlement in a hostile country by the main- 
 tenance of a commercial establishment there ? 74 
 
 He will be considered a hostile character, and a subject of the enemy, 
 in regard to his commercial transactions connected with that establishment. 
 
 3. What facts are requisite to constitute a commercial domicil ? 76 
 
 It has been a question admitting of much discussion and difficulty, 
 arising from the complicated character of commercial speculations. The 
 animus manendi appears to have been the point to be settled. The pre- 
 sumption arising from actual residence in any place, is, that the party is 
 animo manendi, and it lies upon him to remove the presumption. If the 
 intention to establish a permanent residence be ascertained, the recency 
 of the establishment, though it may have been for a day only, is immaterial. 
 
 f 4.^What is the rule in Asia and Africa? 77 
 
 An immiscible character is kept up, and Europeans trading under the 
 protection of a factory, take the national character of the establishment un- 
 der which they live and trade. 
 
 5. What if a person having his domicil in a neutral country, connects
 
 LEC. IV.] REDUCED TO QUESTIONS AND ANSWERS. 23 
 
 himself with a house of trade in the enemy's country, in time of war, or 
 continues, during war, a connexion formed in time of peace ? 80 
 
 He is considered as impressed with a hostile character, in reference 
 to so much of his commerce as may be connected with that establishment. 
 The rule is the same whether he maintains the establishment as a partner 
 or a sole trader. 
 
 6. What if there be a partnership between two persons, the one residing 
 in a neutral, and the other in a belligerent country ? 81 
 
 The trade of one of them, with the enemy, will be held lawful, and 
 that of the other unlawful ; and, consequently, the share of one partner in 
 the joint traffic will be condemned, while the other will be restored. 
 
 7. What is the rule as regards the colonial trade of the enemy ? 81 
 
 That a special license, granted by a belligerent to a neutral vessel, to 
 trade to her colony,in those branches of commerce which were before con- 
 fined to native subjects, will warrant the presumption that such vessel is 
 adopted and naturalized, or that such permission was granted in fraud of 
 the belligerent right of capture, and the property so covered may reasona- 
 bly be regarded as enemy's property. 
 
 8. What is the effect of sailing under the flag and pass of the enemy ? 
 -85 
 
 The English rule is, to hold the ship bound by the character imposed 
 upon it by the authority of the government from which all the documents 
 issue. But goods which have no such dependence upon the authority of 
 the state, may be differently considered ; and if the cargo be laden in 
 time of peace, though documented as foreign property, in the same manner 
 as the ship, the sailing under a foreign flag and pass has not been held 
 conclusive as to the cargo. The doctrine of the courts in this country has 
 been very strict on this point, and it has been very frequently decided, that 
 sailing under the license and passport of protection of the enemy, in 
 furtherance of his views and interests was, without regard to the object of 
 the voyage, or the port of destination, such an act of illegality as to sub- 
 ject both ship and cargo to confiscation as prize of war. 
 
 9. What is the law concerning property in transitu ? 86 
 
 That property which has a hostile character at the commencement 
 of the voyage, cannot change that character by assignment while it is in 
 transitu, so as to protect it from capture. During peace, a transfer in tran- 
 situ may be made. 
 
 10. What if property be shipped from a neutral to an enemy's country, 
 under a contract to become the property of the enemy upon arrival ? 86 
 
 It may be taken in transitu as enemy's property ; for capture is con- 
 sidered as delivery.
 
 24 KENT'S COMMENTARIES, [VOL. r. 
 
 LECTURE V. 
 
 OF THE RIGHTS OF BELLIGERENT NATIONS IN 
 RELATION TO EACH OTHER. 
 
 1. What is the rule as to the right* to plunder by land and sea ? 91 
 
 There is a marked difference in the rights of war carried on by land 
 and at sea. The object of a maritime war is the destruction of the enemy's 
 commerce and navigation, in order to weaken and destroy the foundations 
 of his naval power. The capture or destruction of private property is es- 
 sential to that end ; and it is allowed in maritime wars by the law and 
 practice of nations. But there are a great many limitations imposed upon 
 the operations of war by land, though depredations upon private property, 
 and despoiling and plundering the enemy's territory are still too prevalent. 
 Such conduct has been condemned in all ages by the wise and virtuous, 
 and is usually severely punished by those commanders of disciplined 
 troops, who have studied war as a science, and are animated by a sense 
 of duty, or the love of fame. Vattel condemns very strongly the spoliation 
 of a country without palpable necessity; and he speaks with a just indig- 
 nation of the burning of the Palatinate by Turenne, under the cruel in- 
 structions of Louvois, the war minister of Louis XIV. The general usage 
 now is, not to touch private property upon land, without making compen- 
 sation, unless in special cases, dictated by the necessary operations of war, 
 or when captured in places carried by storm, and which repelled all the 
 overtures for a capitulation. Contributions are sometimes levied upon a 
 conquered country, in lieu of confiscation of property, and as some indem- 
 nity for the expense of maintaining order and affording protection. 
 
 2. What is the law concerning retaliation ? 93 
 
 That retaliation, to be just, ought to be confined to the guilty indi- 
 viduals who may have committed some enormous violation of public law. 
 
 3. When were commissions to cruise first held necessary ? 95 
 
 It was not until the 15th century that subjects were forbidden to cruise 
 against enemies without a license. Vessels are now fitted out and equip- 
 ped by private adventurers at their own expense, to cruise against the 
 common enemy. They are duly commissioned, and it is said not to be 
 lawful to cruise without a regular commission. 
 
 4. What if vessels do cruise without a commission ? 95 
 
 If they depredate upon the enemy without a commission, they act 
 upon their peril, and are liable to be punished by their own sovereign ; 
 but the enemy are not warranted to consider them as criminals, and, as 
 respects the enemy, they violate no right by capture.
 
 LEC. V.] REDUCED TO QUESTIONS AND ANSWERS. 25 
 
 5. How far are the owners and officers of private armed vessels liable 
 in damages, for illegal conduct? 99 
 
 The rule is liable to the modifications of municipal regulations. 
 Bynkershoeck has discussed the question quite at large, and he concludes 
 that the owner, master, and sureties, are jointly and severally liable, in so- 
 lido, for the damages incurred. The French law of prize was formerly 
 the same as the rule laid down by Bynkershoeck ; yet the new commer- 
 cial code of France exempts the owners of private armed vessels in time 
 of war from responsibility for trespasses at sea, beyond the amount of the 
 security they may have given, unless they were accomplices in the tort. 
 The English statute, 7 Geo. II. c. 15, is to the same effect, in respect to 
 embezzlements in the merchants' service. It limits the responsibility to the 
 amount of the vessel and freight, but it does not apply to privateers in time 
 of war, and where there is no positive local law on the subject, (and there 
 is none with us,) the general principle is, that the liability is commensu- 
 rate with the injury. 
 
 6. What is the law upon the subject of foreign commissions ? 100 
 
 Vattel holds it to be inexcusable and base, for an individual to take 
 a commission from a foreign prince, to prey upon the subjects of a state 
 in amity with his native country. The laws of the United States have 
 made ample provision on this subject, and they may be considered as in 
 affirmance of the law of nations, and as prescribing specific punishment 
 for acts which were before unlawful. An act of congress prohibits citi- 
 zens to accept, within the jurisdiction of the United States, a commission, 
 or for any person, not transiently within the United States, to consent to 
 be retained, or enlisted, to serve a foreign state in war against a govern- 
 ment in amity with us. It likewise prohibits American citizens from be- 
 ing concerned, without the limits of the United States, in fitting out, or 
 otherwise assisting, any private vessel of war, to cruise against the sub- 
 jects of friendly powers. 
 
 7. What if a vessei have a commission from two different powers ? 100 
 
 The better opinion is, that she is liable to be treated as a pirate ; for 
 though the two powers may be allies, yet one of them may be in amity 
 with a state with whom the other is at war. 
 
 8. What is the law governing prizes ? 101 
 
 That the right to all captures vests primarily in the sovereign, and no 
 individual can have any interest in a prize, whether made by a public or 
 private armed vessel, but what he receives under the grant of the state. 
 But the general practice under the laws and ordinances of belligerent 
 governments, is, to distribute the proceeds of captured property, when duly 
 passed upon, and condemned as prize, (and whether captured by public or 
 private commissioned vessels) among the captors, as a reward for bravery, 
 and to stimulate exertion. 
 4
 
 26 KENT'S COMMENTARIES, [VOL. i, 
 
 9. By what means only, can prizes taken at sea, become vested in the 
 captors ? 102 
 
 By judicial inquiry ; and the present 'enlightened practice of the com- 
 mercial nations, has subjected all such captures to the scrutiny of judicial 
 tribunals, as the only sure way to furnish due proof that the seizure was 
 lawful. The property is not changed in favour of a neutral vendee, or re- 
 captor, so as to bar the original owner, until a regular sentence of con- 
 demnation has been pronounced by some court of competent jurisdiction, 
 belonging to the sovereign of the captor ; and the purchaser must be able 
 to show documentary evidence of the fact, to support his title. 
 
 10. May the prize court of the csiptor sit in the territory of an ally ? 103 
 
 It may not. Neutral ports are not intended to be auxiliary to the 
 operations of the powers at war, and the law of nations has clearly ordained 
 that a prize court of a belligerent captor cannot exercise jurisdiction in a 
 neutral country. 
 
 11. May a prize court exercise jurisdiction over prizes lying in a neu- 
 tral port? 104 
 
 It may. 
 
 12. How do the prize courts consider a ransom bill ? 104 
 
 As a war contract, protected by good faith and the law of nations ; 
 and notwithstanding that the contract is considered in England as tending 
 to relax the energy of war, and deprive cruisers of the chance of re-cap- 
 ture, it is in many views highly reasonable and humane. Other maritime 
 nations regard ransoms as binding, and to be classed among the few 
 legitimate commercia balli. They have never been prohibited in this country, 
 
 13. What is the effect of a ransom? 105 
 
 It is equivalent to a safe conduct granted by the authority of the 
 state to which the captor belongs, and it binds the commanders of other 
 cruisers to respect the safe conduct thus given. The safe conduct implied 
 in the ransom bills, requires that the vessel should be found within the 
 course prescribed, and within the time limited by the contract, unless 
 forced out of her course by stress of weather, or unavoidable necessity. 
 
 14. What if the ransomed vessel perishes by a peril of the sea, before 
 arrival in port ? 105 
 
 The ransom is, nevertheless, due, for the captor has not insured the 
 prize against the perils of the sea, but only against re-capture by cruisers 
 of his own nation, or the allies of his country. 
 
 15. What was the jus postliminii of the Romans ? 108 
 
 It was a fiction of law by which persons or things taken from the 
 enemy, were restored again to their former state, upon coming again un-
 
 LEC. VI.] REDUCED TO QUESTIONS AND ANSWERS. 27 
 
 der the power of the nation to which they formerly belonged. It is a 
 right recognised by the law of nations, and contributes essentially to miti- 
 gate the calamities of war. 
 
 16. What if a captor bring his prisoners into a neutral port? 109 
 
 He may, perhaps, confine them on board his ship, as being by fiction 
 of law part of the territory of his sovereign, but he has no control over 
 them on shore. 
 
 LECTURE VI. 
 
 OF THE GENERAL RIGHTS AND DUTIES OF 
 NEUTRAL NATIONS. 
 
 1, What are the chief rights and duties of neutrals ? 115 
 
 They shall be permitted to carry on their accustomed trade, under a 
 few necessary restrictions. They are to furnish no aids to one party, 
 which they are not equally ready to furnish to the other ; even a loan of 
 money to one of the belligerent parties, is considered, to be a violation of 
 neutrality. But the neutral duty does not extend so far as to prohibit the 
 fulfilment of antecedent engagements. But if a neutral power be under a 
 contract to furnish succours to one party, he is said not to be bound, if his 
 ally was the aggressor ; and in this solitary instance the neutral may ex- 
 amine into the merits of the war, so far as to see whether the casusfoede- 
 ris exists. A neutral has a right to pursue his ordinary commerce, and 
 may become the carrier of the enemies' goods, without being subject to 
 any confiscation of the ship, or of the neutral articles on board ; though 
 not without the risk of having the voyage interrupted by the seizure of the 
 hostile property. 
 
 2, What if neutral property be found in the vessels of the enemy ? 117 
 
 It is inviolable. But the general inviolability of the neutral charac- 
 ter goes farther than merely the protection of neutral property. It pro- 
 tects the property of the belligerents when within the neutral jurisdiction. 
 
 3, What if the enemy be attacked, or any capture made under neutral 
 protection ? 117 
 
 The neutral is bound to redress the injury, and effect restitution. 
 The books are full of cases recognising this principle of neutrality. No 
 act of hostility is to be commenced on neutral ground.
 
 28 KENT'S COMMENTARIES, [VOL. i. 
 
 4. What if a belligerent cruiser inoffensively passes over a portion of 
 water lying within the neutral jurisdiction? 119 
 
 That fact is not usually considered such a violation of the territory as 
 to effect and invalidate a capture made beyond it. It has been held, in 
 this country, that foreign ships, offending against our laws, within our 
 jurisdiction, may be pursued and seized upon the ocean, and rightfully 
 brought into our ports for adjudication. 
 
 5. What were the rules of neutrality established by congress in 1793 1 
 122 
 
 That the original arming or equipping of vessels in our ports, by any 
 of the powers at war, for military service, was unlawful, and no such ves- 
 sel was entitled to an asylum in our ports. The equipment by them of 
 government vessels of war, in matters which, if done to other vessels, 
 would be applicable either to commerce or war, was lawful. The equip- 
 ment by them of vessels fitted for merchandise and war, and applicable to 
 either, was lawful ; but if it were of a nature solely applicable to war, it 
 was unlawful. And if the armed vessel of one nation should depart from 
 our jurisdiction, no armed vessel being within the same, and belonging to 
 an adverse belligerent power, should depart until twenty-four hours after 
 the former, without being deemed to have violated the law of nations. 
 
 6. What are the principal provisions made by congress on the subject 
 of neutrality? 123 
 
 It is declared to be a misdemeanor for any citizen of the United States, 
 within the territory or jurisdiction thereof, to accept and exercise a com- 
 mission to serve a foreign prince, state, colony, district, or people, in war, 
 by land or by sea, against any prince, state, colony, district, or people, 
 with whom the United States are at peace ; or for any person, except a 
 subject or citizen of any foreign prince, state, colony, district, or people, 
 transiently within the United States, on board of any foreign armed ves- 
 sel, within the territory or jurisdiction of the United States, to enlist or 
 enter himself, or hire or retain another person to enlist or enter himself, 
 or go beyond the limits of the United States, with intent to be enlisted or 
 entered in the service of any foreign prince, state, colony, district or peo- 
 ple, as a soldier, mariner or seaman; or to fit out and arm, or to increase 
 or augment the force of any armed vessel, with intent that such vessel be 
 employed in the service of any foreign power at war with another power, 
 with whom we are at peace ; or to begin, or set on foot, provide, or 
 prepare the means for any military expedition or enterprise, to be carried 
 on from thence against the territory or dominions of any foreign prince, or 
 state, or of any colony, district, or people, with whom we are at peace ; 
 or to hire or enlist troops or seamen, for foreign military or naval service ; 
 or to be concerned in fitting out any vessels to cruise or commit hostilities 
 in foreign service, against a nation at peace with us ; and the vessel in the 
 latter case is made subject to forfeiture. It has been decided, that captures 
 made by a vessel so illegally fitted out, whether a public or private armed 
 ship, were torts, and that the original owner was entitled to restitution, if
 
 LEC. VI.] REDUCED TO QUESTIONS AND ANSWERS. 29 
 
 the property was brought within our jurisdiction ; but that an illegal out- 
 fit did not affect a capture made after the cruise to which the outfit had 
 been applied, had terminated. 
 
 7. What is the rule as to carrying prizes into neutral ports for sale ? 
 123 
 
 That a belligerent cruiser may, consistently with a state of neutrality, 
 until prohibited by the neutral power, bring her prize into a neutral port, 
 and sell it. 
 
 8. What if enemy's property be found on board of neutral ships ? 124 
 
 It is not protected, if the neutral vessel be beyond the neutral jurisdic- 
 tion. It was formerly a question \vhether the neutral ship conveying ene- 
 my's property, was not liable to confiscation for that cause. This was 
 the old law of France, in cases in which the master of the vessel know- 
 ingly took on board the enemy's property ; but Bynkershoeck truly ob- 
 serves, that the master's knowledge is immaterial in the case, and that the 
 rule in the Roman law, making the vessel liable for the fraudulent act of 
 the master, was merely a fiscal regulation, and did not apply ; and for 
 the neutral to carry enemy's goods, is not unlawful. 
 
 9. What is the rule if neutral property be found on board of enemy's 
 ships? 128 
 
 It is to be restored without any compensation for the detention and 
 other necessary inconveniences attending the capture. A neutral flag 
 constitutes no protection to enemy's property, and a belligerent flag com- 
 municates no hostile character to neutral property. 
 
 10. Is the captor of the enemy's vessel entitled to freight from the owner 
 of neutral goods found on board, and restored? 131 
 
 Under certain circumstances, the captor has been considered to be 
 entitled to freight, even though the goods were carried to the claimant's 
 own country and restored ; and he clearly is entitled to freight, if he per- 
 forms the voyage, and carries the goods to the port of destination. 
 
 11. Is neutral property onboard of an armed belligerent vessel, protect- 
 ed by its neutral character? 132 
 
 In this country the Supreme Court has decided that it is. In Eng- 
 land the High Court of Admiralty has made a contrary decision.
 
 30 KENT'S COMMENTARIES, [VOL. 
 
 LECTURE VII. 
 OF RESTRICTIONS UPON NEUTRAL TRADE. 
 
 1. What are the principal restrictions imposed by the law of nations 
 upon the trade of neutrals ? 135 
 
 The prohibition to furnish the belligerent parties with warlike stores, 
 and other articles which are directly auxiliary to warlike purposes. Such 
 goods are denominated contraband of war, but in the attempt to define 
 them the authorities vary, or are deficient in precision, and the subject has 
 long been a fruitful source of dispute between neutral and belligerent 
 nations. 
 
 2. How does Grotius define contraband of war ? 135 
 
 He distinguishes between things which are useful only in war, as 
 arms and ammunition, and things which serve merely for pleasure, and 
 things which are of a mixed nature, and useful both in peace and war. 
 He agrees with other writers in prohibiting neutrals from carrying articles 
 of the first kind to an enemy, as well as permitting the second kind to be 
 carried. As to articles of the third class, which are of indiscriminate use 
 in peace and war, such as money, provisions, ^hips, and naval stores, he 
 says they are sometimes lawful articles of neutral commerce, and some- 
 times not. They would be contraband if carried to a besieged town, camp 
 or port. 
 
 3. How do writers in general define contraband of war 1 136 
 
 In a naval war it is admitted, that ships become contraband, and 
 horses and saddles may be included. Vattel speaks with some want of 
 precision, and only says in general terms : that commodities particularly 
 used in war are contraband, such as arms, military and naval stores, tim- 
 ber, horses, and even provisions, in certain junctures, when there are 
 hopes of reducing the enemy by famine. Locenius and some other author- 
 ities referred to by Valin, consider provisions as generally contraband ; 
 but Valin and Pothier insist that they are not so, either by the law of 
 France, or by the common law of nations, unless carried to besieged or 
 blockaded places. The marine ordinance of Louis XIV. included 
 horses and their equipage, transported for military service. They are in- 
 cluded in the restricted list of contraband articles mentioned in the treaty 
 between theUnited States and Colombia in 1825. Valin, says, that naval 
 stores have been regarded as contraband from the beginning of the last 
 century, and the English prize law is very explicit on this point. Naval 
 stores, and materials for ship building, and even corn, grain, and victuals 
 of all sorts going to the dominions of the enemy were declared contraband 
 by an ordinance of Charles I. in 1626. Sail-cloth is now held to be uni-
 
 LEC. VII.] REDUCED TO QUESTIONS AND ANSWERS. 31 
 
 versally contraband, even on a destination to ports of mere mercantile na- 
 val equipment ; and in the case of the Maria, it was held that tar, pitch, 
 and hemp, and whatever materials went to the construction and equipment 
 of vessels of war, were contraband by the modern law of nations. The 
 executive government of this country has frequently conceded, that ma- 
 terials for the building, equipment, and armament of ships of war, as tim- 
 ber and naval stores, were contraband. But it does not seem that timber 
 is, in se, in all cases to be considered a contraband article, though destined 
 to an enemy's port. 
 
 The modern established rule is, that provisions are not generally con- 
 traband, but may become so, under circumstances arising out of the par- 
 ticular situation of the war, or the condition of the parties engaged in it. 
 
 4. What are the principal circumstances which tend to preserve pro- 
 visions from being liable to be treated as contraband 1 139 
 
 One is, that they are the growth of the country which produces them. 
 Another circumstance to which some indulgence is shown by the practice 
 of nations, is, when the articles are in their native and unmanufactured 
 state. Thus, iron is treated with indulgence, though anchors and other 
 instruments fabricated out of it, are directly contraband. Hemp is more 
 favourably considered than cordage, and wheat is not considered as so 
 noxious a commodity, when going to an enemy's country, as any of its 
 final preparations for human use. The 'most important distinction, is 
 whether the articles were intended for the ordinary use of life, or even 
 for mercantile ships' use, or whether they were going with a highly pro- 
 bable destination to military use. 
 
 5. What if part of a cargo be contraband, and part neutral ? 143 
 
 The contraband articles are said to be of an infectious nature, and 
 they contaminate the whole cargo belonging to the same owners. The 
 innocence of any particular article is not usually admitted to exempt it 
 from the general confiscation. 
 
 6. What is the law concerning blockades 1 144 
 
 That neutrals forfeit the immunities of their national character by 
 violations qf blockade ; and among the rights of belligerents, there is none 
 more clear and uncontrovertible, or more just and necessary in the appli- 
 cation, than that which gives rise to the law of blockade. Bynkershoeck 
 says, it is founded on the principles of natural reason, as well as upon the 
 usage of nations; and Grotius considers the carrying of supplies to a be- 
 sieged town, or blockaded port, as an offence exceedingly aggravated and 
 injurious. They both agree that a neutral may be dealt with severely ; 
 and Vattel says, he may be treated as an enemy. The law of blockade 
 is, however, so harsh and severe in its operation, that, in order to apply 
 it, the fact of the actual blockade must be established by clear and unequi- 
 vocal evidence, and the neutral must have had due previous notice of it ; 
 and the squadron allotted for the purpose of its execution, must be compe- 
 tent to cut off all communication with the interdicted place or port ; and
 
 32 KENT'S COMMENTARIES, [YOL. i. 
 
 the neutral must have been guilty of some violation, either by going in, or 
 attempting to enter, or by coming out with a cargo, laden after the com- 
 mencement of the blockade. 
 
 A blockade must be existing in point of fact ; and in order to constitute 
 that existence, there must be a power present to enforce it. The defini- 
 tion of a blockade given by the convention of the Baltic powers in 1780, 
 and again in 180], and by the ordinance in congress in 1781, required 
 that there should be actually a number of vessels stationed near enough to 
 the port to make the entry apparently dangerous. 
 
 7. What if the blockading squadron be occasionally absent ? 145 
 
 If the absence be produced by accident, as in the case of a storm, 
 and when the station is resumed with due diligence, it does not suspend 
 the blockade, provided the suspension, and the reason of it, be known ; 
 and the law considers an attempt to take advantage of such an accidental 
 removal, as an attempt to break the blockade, and a mere fraud. 
 
 8. In what way may notice of blockade be communicated ? 147 
 
 Either actually by a formal notice from the blockading power ; or 
 constructively by notice to his government, or by the notoriety of the fact. 
 It is immaterial in what way the neutral comes to the knowledge of the 
 blockade. If the blockade actually exists, and he has knowledge of it, he 
 is bound not to violate it. 
 
 9. What is the effect of notice to a foreign government? 147 
 
 It is a notice to all the individuals of that nation, and they are not 
 permitted to aver ignorance of it, because it is the duty of the neutral gov- 
 ernment to communicate the notice to their people. 
 
 10. What is the difference of a blockade regularly notified, and one 
 without such notice 1 147 
 
 In the former case, the act of sailing for the blockaded place, with 
 an intent to evade it, or to enter contingently, amounts, from the very com- 
 mencement of the voyage, to a breach of the blockade, for the port is to 
 be considered as closed up, until the blockade be formally revoked, or ac- 
 tually raised ; whereas in the latter case of a blockade de facto, the igno- 
 rance of the party, as to its continuance, may be received as an excuse for 
 sailing to the blockaded place, on a doubtful and provisional destination. 
 
 
 12. What is the consequence of a breach of blockade ? 151 
 
 The confiscation of the ship and goods. If a ship has contracted 
 guilt by a breach of blockade, the offence is not discharged until the end 
 of the voyage. The penalty never travels on with the vessel further 
 than to the end of the voyage ; and if she is taken in any part of that voy- 
 age, she is taken in delicto. The penalty for a breach of blockade is also 
 held to be remitted, if the blockade had been raised before the capture.
 
 LEG. VII.] REDUCED TO QUESTIONS AND ANSWERS. 33 
 
 12. What is the law upon the subject of carrying enemy's despatches ? 
 152 
 
 That it is an act of illegal assistance afforded to the enemy. The carry- 
 ing two or three cargoes of stores, is necessarily an assistance of a 
 limited nature ; but in the transmission of despatches may be conveyed the 
 entire plan of a campaign, and it may lead to a defeat of all the projects 
 of the other belligerent in that theatre of the war. The appropriate reme- 
 dy for this offence, is the confiscation of the ship ; and if any privity sub- 
 sists between the owners of the cargo and the master, they are involved 
 by implication in his delinquency If the cargo be the property of the 
 proprietors of the ship, then, by the general rule, ob continentiam delicti, the 
 cargo shares the same fate. 
 
 13. What is the law of nations upon the belligerent right to visitation 
 and search of neutral merchant ships ? 153 
 
 In order to enforce the rights of belligerent nations against ihe delin- 
 quencies of neutrals, and to ascertain the real, as well as the assumed 
 character of all vessels upon the high seas, the law of nations gives them 
 the practical power of visitation and search. It is founded on necessity, 
 and is strictly a war right, and does not exist in time of peace. If upon 
 making the search, the vessel be found employed in contraband trade, or 
 in carrying enemy's despatches, she is liable to be taken and brought in 
 for adjudication, before a prize court. 
 
 14. What if the neutral resists this right ? 154 
 
 The penalty for the violent contravention of this right, is the confis- 
 cation of the property so withheld from visitation. Upon this principle, a 
 fleet of Swedish merchant ships, sailing under convoy of a Swedish man- 
 of-war, and under the instructions of the Swedish government to resist, 
 by force, the right claimed by the British lawfully commissioned cruisers, 
 was condemned. The resistance of the convoying ship was a resistance 
 of the whole convoy. The doctrine of the British admiralty on the right 
 of visitation and search, and on the limitation of the right, has been re- 
 cognised in its fullest extent by the courts of justice in this country. 
 
 15. What is the rule as to neutral documents? 157 
 
 That a neutral is bound not only to submit to search, but to have his 
 vessel duly furnished with genuine documents requisite to support her 
 neutral character. The most material of these documents are. the register, 
 passport, sea letter, muster roll, log book, charter party, invoice, and bill 
 of lading. 
 
 16. What if a ship conceals her papers ? 157 
 
 It will justify a capture, and carrying into port for adjudication, 
 
 though it does not absolutely require a condemnation. The spoliation of 
 
 papers is a still more aggravated and inflamed circumstance of suspicion. 
 
 That fact may exclude further proof, and be sufficient to infer guilt ; but it 
 
 5
 
 34 KENT'S COMMENTARIES, [vol. r, 
 
 does not in England, as it does by the maritime laws of other countries, 
 create an absolute presumption juris et de jure. The supreme court of the 
 United States have followed the less rigorous English rule, and held that 
 spoliation of papers was not, of itself, sufficient ground for condemnation. 
 
 LECTURE VIII. 
 
 OF TRUCES, PASSPORTS, AND TREATIES 
 OF PEACE. 
 
 1. What is the effect of a truf e ? 159 
 
 It does not terminate the war, but it is one of the commercia belli 
 which suspends its operations. A particular truce is only a partial cessa- 
 tion of hostilities, as between a town and an army besieging it. But a 
 general truce applies to the operations of the war, and. if it be for a long 
 or indefinite period of time, it amounts to a temporary peace. 
 
 2. By whom may a truce be made ? 159 
 
 A partial truce may be made by a subordinate commander, and it is a 
 power necessarily implied in his trust ; but it is requisite to a general 
 truce, or suspension of hostilities throughout the nation, or for a great 
 length of time, that it be made by the sovereign of the country, or by his 
 special authority. The general principle on the subject is, that if a com- 
 mander makes a compact with the enemy, and it be of such a nature that 
 the power to make it could be reasonably implied from the nature of the trust, 
 it would be valid and binding, though he abused his trust. A truce binds 
 the contracting parties from the time it is concluded, but it does not bind 
 the individuals of the nation so as to render them personally responsible 
 for a breach of it, until they have had actual or constructive notice of it. 
 
 3. What are the rights of the parties under the truce ? 160 
 
 Each party may do, within his own territories, whatever he would 
 have a right to do in time of peace. He may continue active preparations 
 for war, by repairing fortifications, levying or disciplining troops, and col- 
 lecting provisions, and articles of war. But in the case of a truce between 
 the governor of a fortified town, and the army besieging it, neither party 
 is at liberty to continue the works, constructed either for attack or defence, 
 and which could not safely be done if hostilities had continued. The 
 meaning of every such compact is, that all things should remain as they 
 were in the places contested, and of which the possession was disputed 
 at the moment of the conclusion of the truce.
 
 LEG. VIII.] REDUCED TO QUESTIONS AND ANSWERS. 35 
 
 At the expiration of the truce, .hostilities may recommence without any 
 fresh declaration of war ; but if it be for an indefinite time, justice and 
 good faith would require due notice of an intention to terminate it. 
 
 4. What is a passport ? 162 
 
 It. is a privilege granted in warj and exempting the party from the ef- 
 fect of its operations, during the time, and to the extent prescribed in the 
 permission. 
 
 5. Who may grant passports ? 162 
 
 They flow from the sovereign authority ; but the power may be dele- 
 gated by the sovereign to persons in subordinate command, and they 
 are vested with that power, either by an express commission, or by the 
 nature of, their trust. The general of an army, from the very nature of his 
 power, can grant safe conducts ; but the permission is not transferable by 
 the person named in the passport. 
 
 6. What is the effect of a license to trade, given by the enemy to the 
 subjects of the a Iverse party ? 163 
 
 It is the resumption of a state of peace to the extent of the license. 
 In the country which grants them, licenses to carry on a pacific commerce 
 are strict i juris, as being exceptions to the general rule ; though they are 
 not to be construed with pedantic accuracy, nor will every small deviation 
 be held to vitiate the fair effect of them. 
 
 7. What is the effect given to treaties of peace ? 165 
 
 When made by the competent power, they are obligatory upon the 
 whole nation. If the treaty requires the payment of money to carry it 
 into effect, and the money cannot be raised but by an act of the legisla- 
 ture, the treaty is morally obligatory upon the legislature to pass the law, 
 and to refuse it would be a breach of public faith. The department of the 
 government that is intrusted with the treaty-making power, is competent 
 to bind the national faith in its discretion ; for the power to make treaties 
 of peace must be co-extensive with the exigencies of the nation. All 
 treaties made by that power become of absolute efficacy, because they 
 are the supreme law of the land. 
 
 8. What is the rule as to the right to alienate the public domain by trea- 
 ty ? 166 
 
 There can be no doubt that the power competent to bind the nation by 
 treaty may alienate the public domain and property by treaty. A power 
 to make treaties of peace necessarily implies a power to decide the terms 
 upon which they shall be made, and foreign states could not deal safely 
 with the government upon any other presumption. The power that is 
 intrusted generally and largely with the authority to make valid treaties of 
 peace, can of course bind the nation by alienation of part of its territory ; 
 and this is equally the case, whether that territory be already in the occupation
 
 36 KENT'S COMMENTARIES, [VOL. i, 
 
 of the enemy, or remains m the possession of the nation, and whether the 
 property be public or private. 
 
 " Vattel admits that the fundamental laws of a nation may withhold the 
 power of alienation by treaty ; and it would seem, by necessary inference, 
 to be a violation of fundamental law, for the treaty-making power, acting 
 under such an instrument as the constitution of the United Slates, to agree 
 by treaty for the abolition or alteration of any part of it. The stipulation 
 would go to destroy the very authority for making the treaty." 
 
 9. What is the rule as regards allies? 167 
 
 That the principal party in whose name the war is made, cannot 
 justly make peace without including those defensive allies in the pacifi- 
 cation who have afforded assistance, though they may not have acted as 
 principals. The ally is, however, to be no further a party to the stipula- 
 tions and obligations of the treaty, than he has been willing to consent. All 
 that the principal can require, is, that the ally be restored to a state of 
 peace. 
 
 The effect of peace is to put an end to the war, and to abolish the sub- 
 ject of it. Peace relates to the war which it terminates. It is an agree- 
 ment to waive all discussion concerning the respective rights of the par- 
 ties, and to bury in oblivion all the original causes of the war. It forbids 
 the revival of the same war, by taking up arms for the cause which at first 
 kindled it, though it is no objection to subsequent pretensions to the same 
 thing on other foundations. 
 
 10. At what time do treaties usually take effect ? 169 
 
 They bind the contracting parties from the moment of their conclu- 
 sion, and that is understood to be from the day on which they are signed. 
 
 11. How far are treaties obligatory upon the parties? 174 
 
 Treaties of every kind, when made by the competent authority, are 
 as obligatory upon nations as private contracts are binding upon individuals; 
 and they are to receive a fair and liberal construction, and to be kept with 
 the most scrupulous faith. 
 
 12. What is the distinction made by writers on public law, between a 
 new war, for new cause, and a breach of a treaty of peace ? 175 
 
 In the former case the rights acquired by the treaty subsist, notwith- 
 standing the new war ; but in the latter case they are annulled by the 
 breach of the treaty of peace upon which they are founded. 
 
 13. What is the effect of a violation of one article of a treaty? 175 
 It is a violation of the whole treaty.
 
 LEC. IX.] REDUCED TO QUESTIONS AND ANSWERS. 37 
 
 LECTURE IX. 
 OF OFFENCES AGAINST THE LAW OF NATIONS. 
 
 1. What are the principal offences against the law of nations ? 182 
 
 The violation of safe conducts, infringements of the rights of ambassa- 
 dors, and piracy. To these we may add the slave trade, which may now 
 be considered, not indeed as a piratical trade, absolutely unlawful by 
 the law of nations, but as a trade condemned by the general principles of 
 justice and humanity, openly professed and declared by the powers of 
 Europe. 
 
 2. What is the statute law of the United States upon the violation of 
 safe conducts ? 182 
 
 That if any person shall violate any safe conduct or passport, granted 
 under the authority of the United States, he shall, upon conviction, be im- 
 prisoned not exceeding three years, and fined at the discretion of the court. 
 The same punishment is inflicted upon those persons who infringe the law 
 of nations, by offering violence to ambassadors, and other public ministers, 
 or by being concerned in prosecuting or arresting them. 
 
 3. What is piracy? 183 
 
 It is robbery, or a forcible depredation upon the high seas, without 
 lawful authority, and done animo furandi, and in the spirit and intention 
 of universal hostility. 
 
 4. How are pirates every where punished ? 184 
 
 They are every where pursued and punished with death. 
 
 5. What is the rule as to the right to pursue and take them ? 184 
 
 That every nation has a right to attack and exterminate them without 
 any previous declaration of war; for though pirates may form a loose and 
 temporary association among themselves, and re-establish in some de- 
 gree those laws of justice which they had violated with the rest of the 
 world, yet they are not considered as a national body, or entitled to the 
 laws of war, as one of the community of nations. They acquire no rights 
 by conquest, and the law of nations and the municipal laws of every 
 country authorize the true owner to reclaim his property taken by pirates, 
 wherever it may be found; and they do not recognise any title to be de- 
 rived from an act of piracy. 
 
 6. What acts have the laws of the United States declared to be piracy? 
 185
 
 38 KENT'S COMMENTARIES, [VOL. i. 
 
 Murder or robbery committed on the high seas, or in any river, haven, 
 or bay, out of the jurisdiction of any particular state, or any other offence, 
 which if committed within the body of a county, would, by the laws of the 
 United States be punishable with death, shall be adjudged piracy and 
 felony, and punishable with death. It was further declared that if any 
 captain or mariner should piratically and feloniously run away with any 
 vessel, or any goods or merchandise to the value of fifty dollars ; or 
 should yield up any such vessel voluntarily to pirates ; or if any seaman 
 should forcibly hinder his commander from defending the ship or goods 
 committed to his trust, or should make a revolt in the ship ; every such 
 offender should be adjudged a pirate and felon, and punishable with death. 
 Accessaries to such piracies before the fact, are punishable in like man- 
 ner. If any person engaged in any piratical enterprise, or belonging to 
 the crew of any piratical vessel, should land and commit robbery on shore, 
 such an offender shall also be adjudged a pirate. 
 
 7. What is the law as to the right of jurisdiction in cases of piracy ? 
 186 
 
 That it is of no importance for the purpose of giving jurisdiction, on 
 whom or where a piratical offence has been committed. A pirate who is 
 one by the law of nations, may be tried and punished in any country where 
 he may be found. 
 
 8. What would be the effect of a plea of autrefois acquit, resting on a 
 prosecution in any civilized state? 188 
 
 It would be a good plea in any other civilized state. 
 
 9. What if an alien, under a national commission, commit an act of piracy 
 in pursuance of his authority ? 188 
 
 His acts may be hostile, and his nation responsible for them. They may 
 amount to a lawful cause of war, but they are never regarded as piracy. 
 
 10. What penalties have the United States prescribed against the im- 
 portation or exportation of slaves for traffic ? 194 
 
 The act of May, 1820, declared, that if any citizen of the United 
 States, being of the crew of a foreign vessel, engaged in the slave trade, 
 or any person whatever, being of the crew of any vessel armed in whole 
 or in part, or navigated for, or on behalf of any citizen of the United States, 
 should land on any foreign shore, and seize any negro or mulatto, with 
 intent to make him a slave, or should decoy, or forcibly bring, or receive 
 such negro on board of such vessel, with like intent ; or should forcibly 
 confine or detain on board, any negro or mulatto not lawfully held to ser- 
 vice, with intent to make him a slave, or should, on the high seas, or on 
 any tide water, transfer or deliver to any other vessel, any such negro or 
 mulatto, with intent to make him a slave, or should deliver on shore, from 
 on board any such vessel, any negro or mulatto with like intent, such citi- 
 zen or person should be adjudged a pirate, and upon conviction, suffer 
 death.
 
 LEC. XI.] REDUCED TO QUESTIONS AND ANSWERS. 39 
 
 LECTURE X. 
 OF THE HISTORY OF THE AMERICAN UNION. 
 
 1. For what purpose was the government of the United States erected 1 
 201 
 
 It was erected by the free voice and joint will of the people of Amer- 
 ica for their common defence and general welfare. 
 
 2. To what do its powers apply ? 201 
 
 They apply to those great interests which relate to this country in 
 its national capacity, and which depend, for stability and protection, on 
 the consolidation of the Union. It is clothed with the principal attributes 
 of political sovereignty, and is justly deemed the guardian of our best 
 rights, the source of our highest civil and political duties, and the sure 
 means of national greatness. 
 
 LECTURE XI. 
 
 OF CONGRESS. 
 
 1. Of what does Congress consist ? 222 
 Of a senate and house of representatives. 
 
 2. What was the chief object of a separation of the legislature into two 
 houses acting separately, and with co-ordinate powers ? 222 
 
 To destroy the evil effects of sudden and strong excitement, and of 
 precipitate measures springing from passion, caprice, prejudice, party in- 
 trigue, and personal influence, which have been found by sad experience 
 to exercise a potent and dangerous sway in single assemblies. 
 
 3. How is the senate of the United States formed ? 224 
 
 It is composed of two senators from each state, chosen by the legis- 
 lature thereof, for six years, and each senator has one vote. 
 
 4. How are vacancies, occurring from death or otherwise, filled ? 225
 
 40 KENT'S COMMENTARIES, [VOL. i. 
 
 If they happen during the recess of the legislature of any state, the 
 executive thereof may make temporary appointments, until the next meet- 
 ing of the legislature, which shall fill the vacancies. The vice-president 
 of the United States is president of the senate, but has no vote, unless they 
 be equally divided. 
 
 5. What qualifications are requisite in a senator ? 228 
 
 The constitution * requires that each senator shall be thirty years of 
 age, and nine years a citizen of the United States, and at the time of his 
 election, an inhabitant of the state for which he is chosen. 
 
 6. How is the house of representatives formed ? 228 
 
 It is composed of members chosen every second year by the people 
 of the several states, who are qualified to vote for the most numerous 
 branch of the legislature of the state to which they belong. 
 
 7. What are the necessary qualifications of a representative ? 228 
 
 That he hath attained the age of twenty-five years, and hath been 
 seven years a citizen of the United States, and is, at the time of his elec- 
 tion, an inhabitant of the state in which he is chosen. 
 
 8. How are the representatives apportioned among the states ? 230 
 
 According to the number of free persons, including those who are 
 bound for years, and excluding Indians not taxed, and three-fifths of all 
 other persons. The number of representatives cannot exceed one for 
 every thirty thousand, but each state is entitled to one representative. 
 
 9. What are the powers of territorial delegates ? 230 
 They have a right to debate, but not to vote. 
 
 10. What are the privileges of the two houses of congress ? 234 
 
 Each house is made the sole judge of the election returns and quali- 
 fications of its members. A majority of each house constitutes a quorum 
 to do business, but a smaller number may adjourn from day to day, and 
 compel the attendance of absent members, in such manner, and under 
 such penalties as each house may provide. Each house likewise deter- 
 mines the rules of its proceedings, and can punish its members for disor- 
 derly behaviour; and with a concurrence of two-thirds expel a member. 
 Each house is likewise bound to keep a journal of its own proceedings, and 
 from time to time publish such parts as do not require secrecy, and to enter 
 the ayes and nays on the journal, on any question when desired by one- 
 fifth of the members present. The members of both houses are likewise 
 privileged from arrest during their attendance on congress, and in going to 
 and returning from the same, except in cases of treason, felony, and breach 
 of the peace. No member can be questioned out of the house for any 
 speech or debate therein. There is no power expressly given to either
 
 LEC. XII.] REDUCED TO QUESTIONS AND ANSWERS. 41 
 
 house of congress to punish for contempts, except when committed by 
 their own members, but the supreme court decided in the case of Ander- 
 son, that they had the power to commit for contempt, and that it was an 
 implied power, and of vital importance to the safety, character and dignity 
 of the house. 
 
 LECTURE XII. 
 
 OF JUDICIAL CONSTRUCTIONS OF THE POWERS OF 
 
 CONGRESS. 
 
 1. What are the judicial constructions put ifpon the acts of congress 
 giving to the United States a right to priority of payment over all private 
 creditors, in cases of insolvency, and in the distribution of the estates of 
 deceased debtors ? 244 
 
 In Fisher v. Slight, (2 Crunch, 358,) the supreme court decided, that 
 the acts of congress, giving that general priority to the United States, were 
 constitutional. It was a power founded on the authority to make all laws 
 which should be necessary and proper to carry into effect the powers 
 vested by the constitution in the government of the United States. The 
 government is to pay the debts of the Union, and must be authorized to 
 use the means most eligible to effect that object. It has a right to make 
 remittances by bills or otherwise, and to take those precautions which will 
 render these transactions safe. The principle settled, was that the United 
 States are entitled to secure to themselves the exclusive privilege of being 
 preferred as creditors to private citizens, and even to the state authorities. 
 In the United States v. Hooe, (3 Crunch, 73,) it was held, that the priority 
 to which the United States were entitled, did not partake of the character 
 of a lien on the property of public debtors. A bona fide conveyance of 
 part of the property of the debtor, not for the fraudulent purpose of evading 
 the law, but to secure a fair creditor, is not a case within the act of con- 
 gress. 
 
 Afterwards, in Harrison v. Sterry, (5 Craned, 289,) it was held, that 
 in the distribution of a bankrupt's effects, the United States were entitled 
 to their preference, although the debt was contracted by a foreigner in a 
 foreign country, and the United States had proved their debt under a com- 
 mission of bankruptcy. Though the law of the place where the contract 
 is made, be, generally speaking, the law of the contract, yet the right of 
 priority forms no part of the contract. The insolvency which was to en- 
 title the United States to a preference, was declared, in Prince v. Eaf,t- 
 lett, (8 Cranch, 431,) to mean a legal and known insolvency, manifested 
 by some notorious act, according to law. A private creditor acquires a 
 6
 
 42 KENT'S COMMENTARIES, [VOL. i. 
 
 lien by attachment, which cannot be divested by process subsequently is- 
 sued on the part of the United States. Nor will the lien of a judgment 
 creditor, be displaced by the mere priority of the United States. The 
 word insolvency, in the acts of congress, means a legal insolvency, and a 
 a mere state of insolvency, or inability in a debtor to pay all his debts, 
 gives no right of preference to the United States. 
 
 2. In what four cases, according to the preceding decisions, will the 
 United States be entitled to a preference as creditors ? 247 
 
 1. In the case of the death of the debtor without sufficient assets ; 
 2. bankruptcy, or legal insolvency, manifested by some act pursuant to 
 law ; 3. a voluntary assignment by the insolvent of all his property, to 
 pay his debts ; 4. in the case of an absent, concealed, or absconding 
 debtor whose effects are attached. 
 
 3. What is the law as to the fiscal lien of the United States? 248 
 
 It was held, in Harris v. Dennie, (3 Pet. U. S. Rep. 292,) that the 
 government had a lien on goods imported, for the payment of duties accru- 
 ing on them, and not secured by bond ; and that the United States were enti- 
 tled to the custody of the goods until the duties were paid or secured, 
 and any attachment of the goods under state process, during the custody, 
 was void. On the other hand, it was decided, that the government had 
 no general lien on the goods of the importer held for duties due by him 
 for other importations. 
 
 4. What is the judicial construction upon the act of Congress creating 
 a bank ? 254 
 
 That the law creating the bank of the United States, was one made 
 in pursuance of the constitution ; and that the branches of the national 
 bank, proceeding from the same stock, and being conducive to the com- 
 plete accomplishment of the object, were equally constitutional. The 
 supreme court was afterwards led, in some degree, to review this deci- 
 sion, in the case of Osborn v. The United States Bank, (9 Wheaton, 859,) 
 and they there admitted that congress could not create a corporation for 
 its own sake, or for private purposes. The whole opinion, in the case of 
 M'Citlloch v. The State of Maryland, was founded on, and sustained by, 
 the idea, that the bank was an instrument which was necessary and proper 
 for carrying on the government. It was created for a national purpose 
 only, though it was undoubtedly capable of transacting private as well as 
 public business. 
 
 5. What is the construction of the powers of congress relative to taxa- 
 tion ? 256 
 
 It was decided in Loughborough v. Blake, (5 Wheaton, 317,) that the 
 power to tax extended equally to all places over which the government 
 extended. But the court held, that congress are not bound, though they 
 may, in their discretion, extend a direct tax to all the territories as well as
 
 LEG. XII.] REDUCED TO QUESTIONS AND ANSWERS. 43 
 
 to the states. A direct tax, if laid at all, must be laid on every state con- 
 formably to the census, and therefore congress has no power to exempt 
 any state from its due share of the burthen. But it is understood that 
 congress are under no necessity of extending a tax to the unrepresented 
 District of Columbia, and the territories ; though, if they be taxed, then 
 the constitution gives the rule of assessment. 
 
 6. What is the rule as to the national right of domain ? 257 
 
 That congress have the exclusive right of pre-emption to all Indian 
 lands lying within the territories of the United States. The Indians 
 have the right of occupancy, and the United States possess the legal 
 title, subject to that occupancy, and with an absolute right to extinguish 
 the Indian title of occupancy either by conquest or purchase. 
 
 7. Upon what was the title of the European nations, which passed to 
 the United States, founded ? 258 
 
 Discovery, and conquest ; and, by the European customary law of 
 nations, prior discovery gave this title to the soil, subject to the possessory 
 right of the natives. The principle is, that the Indians are to be consid- 
 ered merely as occupants, to be protected while in peace in the possess- 
 ion of their lands, but to be deemed incapable of transferring the absolute 
 title to any other than the sovereign of the country. 
 
 8. What is the effect given to public records ? 260 
 
 In pursuance of the constitution of the United States, congress by 
 the act of May 26, 1790, provided the mode by which records and judicial 
 proceedings should be authenticated, and then declared, that they should 
 have such faith and credit given to them in every court within the United 
 States, as they had by law or usage in the courts of the state from whence 
 the records were taken. Under this act it was decided, in the case of 
 Mills v. Duryee, (7 Cranch, 481,) that if a judgment, duly authenticated, 
 had, in the state court from whence it was taken, the faith and credit of 
 the highest nature, viz. record evidence, it must have the same faith and 
 credit in every other court. A judgment is, therefore, conclusive in every 
 other state, if a court of the particular state where it was rendered, would 
 hold it conclusive. 
 
 9. What is the law respecting the militia ? 261 
 
 That congress have authority to provide for calling forth the militia 
 to execute the laws of the Union, to suppress insurrections, and to repel 
 invasions ; and to provide for organizing and disciplining the militia, and 
 for governing such part of them as may be employed in the service of 
 the United States ; reserving to the states, respectively, the appointment of 
 the officers, and the authority of training the militia, according to the dis- 
 cipline prescribed by congress. The president of the United States is 
 the commander of the militia, when called into actual service.
 
 44 KENT'S COMMENTARIES, [VOL. i. 
 
 10. What was the decision in the case of Martin v. Mott, (12 Wheaton, 
 19,) in 1827? 265 
 
 In that case it was decided and settled by the supreme court of the 
 United States, that it belonged exclusively to the president to judge when 
 the exigency arises, in which he had authority under the constitution to 
 call forth the militia, and that his discretion was conclusive upon the 
 subject. 
 
 LECTURE XIII. 
 OF THE PRESIDENT. 
 
 1. What personal qualifications must the president possess? 273 
 
 The constitution requires that he should be a natural born citizen of 
 the United States, or a citizen at the time of the adoption of the consti- 
 tution, and that he have attained the age of thirty-five years, and have 
 been fourteen years a resident within the United States. 
 
 2. In what manner is the president appointed ? 275 
 
 The constitution has confided the power of electing the president to 
 a small body of electors, appointed in each state, under the direction of 
 the legislature. It has declared that congress may determine the time of 
 choosing the electors, and the day on which they shall vote, and that the 
 day of election shall be the same in every state. It has also declared that 
 the number of electors in each state shall be equal to the whole number 
 of senators and representatives which the state is entitled to send to con- 
 gress. The electors meet in their respective states, at a place appointed 
 by the legislature thereof, on the first Wednesday in December, in every 
 fourth year succeeding the last election, and vote by ballot for president 
 and vice-president. They name in their ballots the person voted for as 
 president, and, in distinct ballots, the person voted for as vice-president ; 
 and they make distinct lists of all persons voted for as president, and of 
 all persons voted for as vice-president, and of the number of votes for 
 each, which lists they sign, and certify and transmit, sealed, to the seat of 
 government of the United States, directed to the president of the senate. 
 The votes must be delivered to the president of the senate before the first 
 Wednesday of January next ensuing the day of election. The president 
 of the senate, on the second Wednesday of February succeeding every 
 meeting of the electors, in the presence of both houses of congress, 
 opens all the certificates, and the votes are then to be counted. The presi- 
 dent of the senate counts the votes. The person having the greatest
 
 LEG. XIV.] REDUCED TO QUESTIONS AND ANSWERS. 45 
 
 number of votes of the electors for president, is president, if such number 
 be a majority of the whole number of electors appointed ; but if no person 
 have such majority, then, from the persons having the highest number, not 
 exceeding three, on the list of those voted for as president, the house of 
 representatives shall choose immediately, by ballot, the president. But 
 in choosing the president, the votes shall be taken by states, the represen- 
 tation of each state having one vote. The person having the greatest 
 number of votes as vice president, is vice-president, if such number be a 
 majority of the whole number of the electors appointed ; and if no per- 
 son have a majority, then, from the two highest numbers on the list, the 
 senate shall choose the vice-president. 
 
 3. What are the powers of the president ? 282 
 
 He is commander in chief of the army and navy of the United States, 
 and of the militia of the several states, when called into actual service of 
 the Union. The president has also power to grant reprieves and pardons 
 for offences against the United States, except in cases of impeachment. 
 He has also the power, by and with the advice and consent of the senate, 
 to make treaties, provided two-thirds of the senators present concur. The 
 president is the efficient power in the appointment of the officers of the 
 government. He is to nominate, and, with the advice and consent of *he 
 senate, to appoint ambassadors, or public ministers and consuls, the judges^ 
 of the supreme court, and all other officers whose appointments are not 
 otherwise provided for in the constitution. 
 
 4. How may the president be removed from office ? 289 
 
 By impeachment. The president as well as all other officers of the 
 United States, may be impeached by the house of representatives, for 
 treason, bribery, and other high crimes and misdemeanors, and, upon con- 
 viction by the senate, removed from office. 
 
 LECTURE XIV. 
 OF THE JUDICIARY DEPARTMENT. 
 
 1. What power interferes more visibly and uniformly, than any other 
 part of government, with all the interesting concerns of social life ? 290 
 
 The judiciary power. Personal security and private property, rest 
 entirely upon the wisdom, the stability, and the integrity of the courts 
 of justice.
 
 46 KENT'S COMMENTARIES, [VOL. i. 
 
 2. In what does the constitution declare the judicial power of the 
 United States shall be vested ? 290 
 
 In one supreme court, and such inferior courts as congress may from 
 time to time ordain and establish. 
 
 3. What is the term during which the judges hold their office ? 292 
 During good behaviour. 
 
 4. What is the extent of the judicial power ? 295 
 
 It extends to all cases in law and equity arising under the constitu- 
 tion, the laws and treaties of the Union ; to all cases affecting ambassa- 
 dors, or other public ministers, and consuls ; to all cases of admiralty and 
 maritime jurisdiction ; to controversies between two or more states ; to 
 controversies between a state, when plaintiff, and the citizens of another 
 state, or to foreign citizens or subjects ; to controversies between citizens 
 of different states, and between citizens of the same state, claiming lands 
 under grants of different states ; and between a state, or citizens thereof, 
 and foreign states, and between citizens and foreigners. 
 
 5. What is provided in the amendment of 1794 ? 297 
 
 That the judicial power of the United States should not be construed 
 to extend to any suit in law or equity, commenced or prosecuted against 
 one of the United States, by citizens of another state, or by citizens or 
 subjects of any foreign state. The inhibition applies only to citizens or 
 subjects, and does not extend to suits by a state, or foreign states or 
 powers. 
 
 6. Of how many judges does the supreme court consist? 298 
 
 Of one chief justice, and six associate justices, any four of whom 
 make a quorum ; and it holds one term annually, at the seat of government, 
 commencing on the second Monday in January. 
 
 7. In what cases has the supreme court exclusive jurisdiction ? 298 
 
 In all controversies of a civil nature, where a state is a party, except 
 in suits by a state against one or more of its citizens, or against citizens 
 of other states, or aliens, in which cases it has original, but not exclusive 
 jurisdiction. It has also, exclusively, all such jurisdiction of suits, or 
 proceedings against ambassadors, or other public ministers, or their do- 
 mestics or servants, as a court of law can have or exercise, consistently 
 with the law of nations ; and original, but not exclusive jurisdiction, of all 
 suits brought by ambassadors or other public ministers, or in which a 
 consul or vice-consul shall be a party. The supreme court was also 
 clothed by the constitution " with appellate jurisdiction, both as to law 
 and fact, with such exceptions and regulations as congress should make."
 
 LEG. XIV.] REDUCED TO QUESTIONS AND ANSWERS. 47 
 
 8. In what cases has the supreme court appelate jurisdiction ? 299 
 
 By the judiciary act of 1789, appeals lie to this court from the cir- 
 cuit courts, and the courts of the several states. Final judgments and 
 decrees, in civil actions, and suits in equity in the circuit courts of the 
 United States, whether brought by original process, or removed there, 
 from the state courts, or by appeal from the district courts, in cases where 
 the matter in dispute exceeds 2,000 dollars, exclusive of costs, may be 
 re-examined, by writ of error, and reversed or affirmed, by the supreme 
 court. Final judgments and decrees in the circuit courts, in cases of 
 admiralty and maritime jurisdiction, and of prize or no prize, where the 
 matter in dispute exceeds 2,000 dollars, exclusive of costs, may be re- 
 viewed on appeal in the supreme court. 
 
 9. Into how many circuits are the United States divided ? 301 
 Seven. 
 
 10. In what cases have the circuit courts original jurisdiction ? 302 
 
 They have original cognizance, concurrent with the state courts, of all 
 suits of a civil nature at common law or in equity, where the matter in 
 dispute exceeds 500 dollars, exclusive of costs, and the United States are 
 plaintiffs, or an alien is a party, or the suit is between a citizen of the 
 state where the suit is brought, and a citizen of another state. They 
 have likewise exclusive cognizance, except in certain cases, of all crimes 
 and offences cognizable under the laws of the United States, exceeding 
 the degree of ordinary misdemeanors, and of them they have concurrent 
 jurisdiction with the district courts. They have also, original jurisdiction 
 in equity and at law of all suits arising under the law of the United States 
 relative to copyrights, and those growing out of inventions and discoveries, 
 and to protect such rights by injunction. The jurisdiction in the case of 
 copyrights applies, without regard to the character of the parties, or the 
 amount in dispute. 
 
 1 1 . In what cases have the circuit courts appelate jurisdiction ? 302 
 
 From all final decrees and judgments in the district courts, where 
 the matter in dispute, exclusive of costs, exceeds 50 dollars. If the 
 remedy be on final decrees in the district courts, in cases of admiralty 
 and maritime jurisdiction, it is by appeal ; and if on final judgments in 
 civil cases, it is by writ of error. And if any suit be commenced in a 
 state court against an alien, or by a citizen of the state in which the suit 
 is brought against a citizen of another state, or against a citizen of the 
 same state claiming lands under a grant from another state, and the matter 
 in dispute exceeds 500 dollars, exclusive of costs, the defendant, on 
 giving security may remove the cause to the next circuit court. 
 
 12. In what cases have the district courts jurisdiction ? 304 
 
 They have exclusive of the state courts, cognizance of all the lesser
 
 48 KENT'S COMMENTARIES, [VOL. i. 
 
 crimes and offences cognizable under the authority of the United States, 
 and committed within their respective districts, or upon the high seas, 
 and which are punishahle by fine not exceeding 500 dollars, by imprison- 
 ment not exceeding 6 months, or when corporal punishment, not exceed- 
 ing 30 stripes, is to be inflicted. They have also exclusive original cog- 
 nizance of all civil causes of admiralty and maritime jurisdiction of sei- 
 zures under impost, navigation, or trade laws of the United States, 
 where the seizures are made upon the high seas, or on waters within 
 their districts navigable from the sea with vessels of ten or more tons 
 burthen ; and also of all seizures made under the laws of the United 
 States ; and also of all suits for penalties and forfeitures incurred under 
 those laws. They have also cognizance, concurrent with the circuit courts 
 and state courts, of causes where an alien sues for a tort committed in vio- 
 lation of the law of nations, or a treaty of the United States ; and of all 
 suits at common law, in which the United States are plaintiffs, and the 
 matter in dispute amounts, exclusive of costs, to 100 dollars. They have 
 jurisdiction likewise, exclusive of the courts of the several states., of all 
 suits against consuls, except for offences above the magnitude which has 
 been mentioned. They have also cognizance of complaints, by whom- 
 soever instituted, in cases of captures made within the waters of the 
 United States, or within a marinele ague of its coasts ; and to repeal pa- 
 tents unduly obtained. 
 
 13. What authority have the superior courts of the several territories ? 
 305 
 
 In those territories in which there is no district court established, they 
 have the enlarged authority of the circuit courts, subject to revision by 
 writ of error, and appeal to the supreme court. 
 
 14. What restrictions are placed upon the judges of the federal courts ? 
 305 
 
 The district and territorial judges are required to reside within their 
 respective jurisdictions, and no federal judge can act as counsel, or be 
 engaged in the practice of the law. 
 
 LECTURE XV. 
 
 OF THE ORIGINAL AND APPELLATE JURISDICTION 
 OF THE SUPREME COURT. 
 
 1. What is the rule, laid down by the supreme court, on the subject of 
 jurisdiction on account of the interest that a state has in the controversy ? 
 323
 
 LEC. XVI.] REDUCED TO QUESTIONS AND ANSWERS. 49 
 
 That it must be a case in which a state is nominally the party ; and 
 it is not sufficient that the state may be consequentially affected, as 
 being bound to make retribution to her grantee upon the event of eviction. 
 
 2. What is the rule as to the appellate jurisdiction of the supreme court ? 
 324 
 
 That it exists only in cases in which it is affirmatively given. In 
 the case of Wiscart v. Dauchy, (3 Dallas, 321,) the supreme court consid- 
 ered that its whole appellate jurisdiction depended upon the regulations of 
 congress, as that jurisdiction was given by the constitution in a qualified 
 manner. 
 
 LECTURE XVI. 
 
 OF THE JURISDICTION OF THE FEDERAL COURTS, 
 
 IN RESPECT TO THE COMMON LAW, AND IN 
 
 RESPECT TO PARTIES. 
 
 1. What are the decisions upon the right of the federal courts to com- 
 mon law jurisdiction, in criminal matters 1 339 
 
 The decisions are, that they have no such jurisdiction. 
 
 2. How far have the supreme court admitted the application of the 
 common law to civil cases in the federal courts? 341 
 
 In Robinson \. Campbell, (3 Wheaton, 212,) the supreme court went 
 far toward the admission of the existence and application of the common 
 law to civil cases in the federal courts. 
 
 3. What is it necessary to set forth on the record in order to give 
 jurisdiction where an alien is a party ? 343 
 
 In Bingham v. Cabot, (3 Dallas, 382,) the supreme court held, that it 
 was necessary to set forth the citizenship of the respective parties, or the 
 alienage where a foreigner was concerned, by positive averments ; and 
 that if there was not a sufficient allegation for that purpose on the record, 
 no jurisdiction of the suit would be sustained. It is necessary, therefore, 
 where the defendant appears to be a citizen of one state, to show, by 
 averment, that the plaintiff is a citizen of some other state, or an alien ; 
 or, if the suit be upon a promissory note, by the endorsee, to show that the 
 original payee was so. 
 7
 
 50 KEXT'S COMMENTARIES, [VOL. I. 
 
 4. What is the rule in cases of joint plaintiffs or defendants ? 345 
 
 In Strawbridge v. Curtiss, (3 Cranch, 267,) that where the interest 
 was joint and two or more persons concerned in that interest, as joint 
 plaintiffs, or joint defendants, each of them must be competent to sue, or 
 be liable to be sued, in the federal courts ; and the suit was dismissed 
 in that case, because some of the plaintiffs and defendants were citizens 
 of the same state. 
 
 5. What is the rule where a corporation is a party? 346 
 
 It was decided in the cases of the Hope Insurance Company v. 
 Boardman, and of the Bank of the United States v. Deveaux, (5 Crunch, 
 57, 61,) that a corporation aggregate was not, in its corporate capa- 
 city, a citizen, and that its right to litigate in the federal courts depend- 
 ed upon the character of the individuals who composed the body politic, 
 and which character must appear by proper averments upon the record. 
 If any of the stockholders are citizens of the same state with the defen- 
 dant, the federal courts have no jurisdiction. 
 
 6. What is the rule in regard to trustees ? 348 
 
 That a trustee who holds the legal interest, is competent to sue in 
 right of his own character as a citizen or alien, as the case may be, in 
 the federal courts, and without reference to the character of his cestui que 
 trust, unless he was created trustee for the fraudulent purpose of giving 
 jurisdiction. This rule applies to executors and administrators, who are 
 considered as the real parties in interest ; but it does not apply to the gen- 
 eral assignee of an insolvent debtor. The llth section of the judiciary 
 act will not permit jurisdiction to vest by the assignment of a chose in 
 action, (cases of foreign bills of exchange excepted.) A vested jurisdic- 
 tion is not devested by a subsequent change of domicil. 
 
 7. What is the rule of proceeding where a state is interested, and not 
 a party on record ? 350 
 
 In the case* of Osborn v. The Bank of the United States, (9 Wheaton, 
 783) the court decided, that the circuit courts had lawful jurisdiction, un- 
 der the act of congress incorporating the national bank, of a bill in equity 
 brought by the bank for the purpose of protecting its franchises, which 
 were threatened by the state of Ohio ; and that as the state itself could 
 not be made a party defendant, the suit might be maintained against the 
 officers and agents of the state who were intrusted with the execution of 
 such laws.
 
 LEG. XVII.] REDUCED TO QUESTIONS AND ANSWERS. 51 
 
 LECTURE XVII. 
 
 OF THE DISTRICT AND TERRITORIAL COURTS OF 
 THE UNITED STATES. 
 
 1 . What is the distinction in England between the instance and the 
 prize court of admiralty ? 353 
 
 The former is the ordinary admiralty court, but the latter is a special 
 and extraordinary jurisdiction ; and although it be exercised by the same 
 person, it is in no way connected with the former, either in its origin, its 
 mode of proceeding, or the principles which govern it. To constitute the 
 prize court, or to call it into action in time of war, a special commission 
 issues, and the court proceeds summarily, and is governed by general prin- 
 ciples of policy, and the law of nations. 
 
 2. Over what cases have the prize courts jurisdiction ? 356 
 
 The ordinary prize jurisdiction extends to all captures in war, made 
 on the high seas. I know of no other definition of prize goods, said Sir 
 Willian Scott, in the case of the Two Friends, (1 Rob. Rep. 228,) than 
 that they are goods taken on the high seas, jure belli, out of the hands of 
 the enemy. The prize jurisdiction also extends to captures in foreign 
 ports and harbours, and to captures made on land by naval forces, and upon 
 surrenders to naval forces, either solely, or by joint operation with land 
 forces. It extends to captures made in rivers, ports, and harbours, of the 
 captor's own country. The prize court extends also to all ransom bills 
 upon captures at sea, and to money received as a ransom or commutation, 
 on a capitulation to naval forces alone, or jointly with land forces. 
 
 3. What is the rule in cases of freight 1 359 
 
 That prize courts have exclusive jurisdiction, and an enlarged discre- 
 tion, as to the allowance of freight, damages, expenses, and costs, in all 
 cases of captures, and as to all torts, and personal injuries, and ill treat- 
 ments, and abuse of power, connected with capture jure belli ; and the 
 courts will frequently award large and liberal damages in those cases. 
 
 4. How far does the criminal jurisdiction of the district courts extend ? 
 360 
 
 To the cognizance of all crimes and offences cognizable under the 
 authority of the United States, and committed within their districts, or 
 upon the high seas, where only a moderate corporal punishment, or fine, 
 or imprisonment is to be inflicted. 
 
 5. What forms the dividing line between the admiralty and common 
 law jurisdiction of the district court 1 375
 
 52 KENT'S COMMENTARIES, [VOL. i. 
 
 In seizures made on land, the district court proceeds as a court of 
 common law, according to the course of the English exchequer, on infor- 
 mation in rem, and the trial of issues of fact is to be by jury. But in 
 cases of seizures on waters navigable from the sea, by vessels of ten or 
 more tons burthen, the court proceeds as an instance court of admiralty, 
 by libel in rem, and the trial is by the court. 
 
 6. How far does the jurisdiction of the admiralty, as an instance court 
 extend ? 378 
 
 In England, the instance court of admiralty, takes cognizance only 
 of crimes committed, and things done, and contracts not under seal, made 
 super ahum mare, and without the body of a county. The admiralty has 
 cognizance of maritime hypothecations of vessels and goods in foreign 
 ports, for repairs done, or necessary supplies furnished. Suits for sea- 
 men's wages, are cognizable in the admiralty, though the contract be made 
 upon land, provided it be not a contract under seal. 
 
 LECTURE XVIII. 
 
 OF THE CONCURRENT JURISDICTION OF THE 
 STATE GOVERNMENTS. 
 
 1. What is the observation of the Federalist upon the subject of con- 
 current rights ? 387 
 
 That the state governments would clearly retain all those rights of 
 sovereignty which they had before the adoption of the constitution of the 
 United States, and which were not by that constitution exclusively dele- 
 gated to the Union. 
 
 2. What is the doctrine of the supreme court on that point ? 388 
 
 In Sturges \. Crowninshield, (3 Dallas, 386,) the chief justice ob- 
 served, that the powers of the states remained, after the adoption of the 
 constitution, what they were before, except so far as they had been 
 abridged by that instrument. The mere grant of a power to congress did 
 not imply a prohibition on the states to exercise that power. Thus, con- 
 gress are authorized to establish uniform laws on the subject of bankruptcy, 
 but the states may pass bankrupt laws, provided there be no act of con- 
 gressi in force establishing a uniform law on that subject. It is not the 
 mere resistance of the power, but it is the exercise of that power, which 
 is incompatible with the exercise of the same by the states. In Houston
 
 LEG. XVIII.] REDUCED TO QUESTIONS AND ANSWERS. 53 
 
 v. Moore, (5 Wheaton, 1,) the doctrine of the court was, that when con- 
 gress exercised their powers upon any given subject, the states could not 
 enter upon the same ground, and provide for the same objects. The will 
 of congress may be discovered as well by what they have not declared, as 
 by what they have expressed. It is not a true and constitutional doctrine, 
 that in cases where the state governments have a concurrent power of 
 legislation with the national government, they may legislate upon any 
 subject on which congress have acted, provided the two laws are not in 
 their operation contradictory and repugnant to each other. 
 
 3. How far can the process of the federal courts be controlled by the 
 laws of the several states ? 394 
 
 In Weyman v. Southard, (10 Wheaton, 1,) it was decided, that con- 
 gress had exclusive authority to regulate proceedings and executions in the 
 federal courts, and that the states had no authority to control such process ; 
 and, therefore, executions by fieri facias, in the federal courts, were not 
 subject to the checks created by the Kentucky statute, forbidding sales 
 on execution of land for less than three-fourths of its appraised value. 
 
 4. What is the rule laid down by the Federalist, as to concurrent judi- 
 cial jurisdiction of the states ? 395 
 
 That the state courts retained all pre-existing authority, or the juris- 
 diction they had before the adoption of the constitution, except where it 
 was taken away, either by an exclusive authority granted in express terms 
 to the Union, or in a case where a particular authority was granted to the 
 Union, with which a similar authority in the states would be utterly in- 
 compatible. 
 
 5. In what cases do the state courts not have concurrent jurisdiction ? 
 398 
 
 They can exercise no jurisdiction whatever over crimes and offences 
 against the United States, and all suits, penalties, and forfeitures unless 
 where, in particular cases, the laws otherwise provide. 
 
 6. What is the effect of a sentence in one jurisdiction in cases of con- 
 current jurisdiction ? 399 
 
 That the sentence of either court, whether of conviction or acquittal, 
 may be pleaded in bar of a prosecution before the other. 
 
 7. What is the doctrine as to the power of congress to compel a state 
 court to entertain jurisdiction ? 402 
 
 That congress cannot compel a state court to entertain jurisdiction in 
 any case. It only permits state courts which are competent for the pur- 
 pose, and have an inherent jurisdiction adequate to the case, to entertain 
 suits in the given cases; and they do not become inferior courts in the 
 sense of the constitution, because they are not ordained by congress.
 
 54 KENT'S COMMENTARIES, [VOL. i. 
 
 The state courts are left to infer their own duty from their own state 
 authority and organization ; but if they do voluntarily entertain jurisdiction 
 of causes cognizable under the laws of the United States, they assume it 
 upon the condition that the appellate jurisdiction of the federal courts 
 shall apply. 
 
 LECTURE XIX. 
 
 CONSTITUTIONAL RESTRICTIONS ON THE 
 POWERS OF THE SEVERAL STATES. 
 
 1. What are the principal constitutional restrictions ? 406 
 
 That no state shall enter into any treaty, alliance, or confederation ; 
 grant letters of marque and reprisal ; coin money ; emit bills of credit ; 
 make any thing but gold and silver coin a tender in payment of debts ; 
 pass any bill^of attainder, ex post facto law, or law impairing the obligation 
 of contracts ; or grant any title of nobility. No state shall, without the 
 consent of congress, lay any imposts or duties on imports or exports, except 
 what may be absolutely necessary for executing its inspection laws ; nor 
 lay any duty or tonnage, keep troops or ships of war in time of peace, 
 enter into any agreement or compact with another state, or with a foreign 
 power, or engage in war, unless actually invaded, or in such imminent 
 danger as will not admit of delay. 
 
 2. What is the construction put upon the prohibition to issue bills of 
 credit ? 408 
 
 It is declared to mean promissory notes, or bills issued exclusively 
 on the credit of the state, and for the payment of which the faith of the 
 state is pledged. The prohibition does not, therefore, apply to the notes 
 of a state bank, drawn on the credit of a particular fund set apart for that 
 purpose. According to the case of Craig v. The State of Missouri, (4 
 Peters' U. S. Rep., 410,) bills of credit are defined to be paper issued by a 
 state government, and intended to circulate through the community for its 
 ordinary purposes, as money redeemable at a future day. 
 
 3. What is the construction upon the prohibition to pass ex post facto 
 laws ? 408 
 
 In Colder v. Bull, (3 Dallas, 386,) it was held, that the words ex post 
 facto laws were technical expressions, and meant every law that made an 
 act done before the passing of the law, and which was innocent when 
 done, criminal ; or which aggravated a crime, and made it greater than it
 
 LEG. XIX.] > REDUCED TO QUESTIONS AND ANSWERS. 55 
 
 was when committed ; or which altered the legal rules of evidence, and 
 received less or different testimony than the law required at the time of 
 the commission of he offence, in order to convict the offender. In Fletcher 
 v. Peck, (6 Cranch, 1 38,) it was observed than an ex post facto law was 
 one which rendered an act punishable in a manner in which it was not 
 punishable at the time when it was committed. 
 
 4. What is the rule as to the control of the state cowrts over the federal 
 courts ? 409 
 
 That the state legislatures cannot annul the judgments, nor determine 
 the jurisdiction of the courts of the Union. No state tribunal can inter- 
 fere with seizures of property made by the revenue officers, under the 
 laws of the United States. 
 
 5. How far are persons engaged in the transportation of the mail, exempt 
 from the control of state process ? 411 
 
 In the case of The United States v. Barney, (3 HalVs Law Journal, 
 128,) the district judge of Maryland decided that, an inn-keeper had no 
 lien on a horse which he had fed, and which was employed in the trans- 
 portation of the mail ; and that a claim for debt would not justify the stop- 
 ping of the mail, or the means necessary to transport it ; and that even a 
 stolen horse, found in the mail stage could not be seized ; nor could the 
 driver, being in debt, be arrested in such a way as to obstruct the passage 
 of the mail. 
 
 6. What is the construction put upon the prohibition to pass laws im- 
 pairing the obligation of contracts ? 413 
 
 The case of Fletcher v. Peck, (6 Cranch, 87,) first brought this prohib- 
 tory clause into direct discussion. The legislature of Georgia, by act of 
 7 of January, 1795, authorized the sale of a tract of wild land, and a grant 
 was made by letters patent in pursuance of the act, to a number of indi- 
 viduals, under the name of the Georgia Company. Fletcher held a deed 
 from Peck for a part of this land, under the patent ; and in the deed Peck 
 had covenanted, that the state of Georgia was lawfully seized when the 
 act was passed, and had good right to sell, and that the letters patent were 
 lawfully issued, and the title has not since been legally impaired. The 
 action was for a 'breach of covenant ; and the breach assigned was, that 
 the letters patent were void, for, that the legislature of Georgia by act of 
 the 13th Febuary, 1796, declared the preceding act to be null and void, 
 as being founded in fraud and corruption. One of the questions presented 
 to the supreme courtupon the case was, whether the legislature of Georgia 
 could constitutionally repeal the act of 1795, and rescind the sale made 
 under it. The court declared, that when a law was in its nature a con- 
 tract, and absolute rights have vested under that contract, a repeal of the 
 law could not divest those rights nor annihilate or impair the title so ac- 
 quired. A grant was a contract within the meaning of the constitution. 
 The words of the constitution were construed to comprehend equally ex-
 
 56 KENT'S COMMENTARIES, [VOL. i. 
 
 ecutory and executed contracts, for each of them contains obligations bind- 
 ing on the parties. A grant is a contract executed, and a party is always 
 estopped by his own grant. A party cannot pronounce his own deed in- 
 valid. A grant amounts to an extinguishment of the right of the grantor. 
 A grant from a state is as much protected by the constitution as a grant 
 from one individual to another, and the state is as much inhibited 
 from impairing its own contracts, or a contract to which it is a party, 
 as it is from impairing the obligation of contracts between two individ- 
 uals. It was, accordingly, declared, that the estate held under the act 
 of 1795, having passed into the hands of a bona fide purchaser for a 
 valuable consideration, the state of Georgia was constitutionally disabled 
 from passing any law whereby the estate of the plaintiff could be legally 
 impaired or rendered void. In the case of The State of Neio Jersey v. 
 Wilson, (7 Crunch, 164,) it was held, that if the legislature should declare 
 by law, that certain lands to be thereafter purchased for the use of the In- 
 dians, should not be subject to any tax, such a legislative act amounted to 
 a contract, which could not be recinded by a future legislature. In Terret 
 v. Taylor, (9 Cranch, 43,) it was held that, a legislative grant, compe- 
 tently made, vested an indefeasible and irrevocable title. Nor can the 
 legislature repeal statutes creating private corporations, or confirming to 
 them property already acquired, under the faith of previous laws, and by 
 such repeal vest the property in others, without the consent or default of 
 the corporators. In the case of Dartmouth College v. Woodward, (4 
 Wheaton 518,) it was held, that the charter granted by the British crown 
 to the trustees of Dartmouth college in 1769, was a contract within the 
 meaning of the constitution, and protected by it ; and that the college was 
 a private charitable institution, not liable to the control of the legislature ; 
 and that the act of the legislature of New Hampshire, altering the charter 
 in a material respect, without the consent of the corporation, was an act 
 impairing an obligation of the charter, and consequently unconstitutional 
 and void. 
 
 In Green v. Biddle, (8 Wheaton, 1,) it was observed by the court, that 
 the objection to a law, on the ground of its impairing the obligation of 
 contracts, could not depend upon the extent of the change. Any devia- 
 tion from its terms, by postponing or accelerating the period of perform- 
 ance which it prescribes, imposing conditions not expressed in the con- 
 tract, or dispensing with the performance of those which are expressed, 
 however minute or apparently immaterial in their effect upon the contract, 
 or upon any part of it, impairs its obligation. The material point decided 
 was, that a compact between two states was a contract within the consti- 
 tutional prohibition. In the case of Sturges v. Crowninshield, (4 Wheaton, 
 122,) the defendant was sued in one of the federal courts upon two pro- 
 missory notes given in March, 1811, and he pleaded his discharge under 
 an insolvent act of New York, passed in April, 1811. The chief justice, 
 in the opinion which he delivered on behalf of the court, admitted, that 
 until congress exercise the power to pass uniform laws on the subject of 
 bankruptcy, the individual states might by law discharge debtors from im- 
 prisonment, for imprisonment was no part of the contract, but only a 
 means of coercion. It was also admitted, that they might pass statutes
 
 LEG. XIX.] REDUCED TO QUESTIONS AND ANSWERS. 57 
 
 of limitation, for such statutes relate to the remedy, and not to the obliga- 
 tion of the contract. But a law which discharged the debtor from his 
 contract to pay a debt by a given time, without performance, and released 
 him, without payment, entirely from any future obligation to pay, impaired, 
 because it entirely discharged, the obligation of that contract, and, con- 
 sequently, the discharge of the defendant, under the act of 1811, was no 
 bar to the suit. 
 
 5. How is the prohibition to pass naturalization laws construed ? 424 
 
 In Chirac v. Chirac, (2 Wheaton, 269,) the chief justice of the United 
 States decided, that the power to pass naturalization laws was vested ex- 
 clusively in congress. 
 
 6. How is the inability of the states to tax national property settled ? 
 
 425 
 
 That the state governments have no right to tax any of the consti- 
 tutional means employed by the government of the Union to execute its 
 constitutional powers, nor to retard, impede, burden, or in any manner 
 control the operations of the constitutional laws enacted by congress, to 
 carry into effect the powers vested in the national government. 
 
 A tax on loans made to the United States is unconstitutional. 
 
 7. What is the rule as to state jurisdiction over places ceded to the 
 United States ? 429 
 
 That the state legislatures lose all jurisdiction over places purchased 
 by congress, by the consent of the legislature of the state, for the erection 
 of forts, dock yards, light houses, hospitals, military academies, and other 
 needful buildings. 
 
 8. What is the construction put upon the power of congress to regu- 
 late commerce among the states 1 431 
 
 That non-intercourse and embargo laws are within the powers of 
 congress ; and if congress have the power, for purposes of safety, or pre- 
 paration, or counteraction, to suspend commercial intercouse with foreign 
 nations, they are not limited as to the duration, more than as to the manner 
 and extent of the measure. 
 
 It was decided in the supreme court of the United States in Gibbons 
 v. Ogden, (9 Wheatrm, 1,) that the acts of the legislature of New York, 
 granting to Livingston and Fulton the exclusive navigation of the waters 
 of the state, in vessels propelled by steam, were unconstitutional and void 
 acts, and repugnant to the power given to congress to regulate commerce, 
 so far as those acts went to prohibit vessels licensed under the laws of 
 congress for carrying on the coasting trade, from navigating the waters of 
 New York.
 
 58 KENT'S COMMENTARIES, [VOL. i. 
 
 LECTURE XX. 
 OF THE STATUTE LAW. 
 
 1. What is municipal law ? 447 
 
 It is a rule of civil conduct prescribed by the supreme power in a 
 state. It is composed of written and unwritten, or statute and common law. 
 
 2. What is statute law ? 447 
 
 It is the express or written will of the legislature, rendered authentic 
 by certain prescribed forms and solemnities. 
 
 3. What authority has an act of the English parliament ? 447 
 
 It is a principle of the English law, that an act of parliament, deliv- 
 ered in clear and intelligible terms, cannot be questioned in any court of 
 justice. 
 
 4. What is the observation of Sir William Blackstone on this sub- 
 ject ? 447 
 
 That it is the exercise of the highest authority which the kingdom 
 acknowledges on earth. 
 
 5. How is the principle in the English government, that parliament is 
 omnipotent, received in the United States ? 448 
 
 It does not prevail ; though, if there be no constitutional objection to 
 a statute, it is with us as absolute and uncontrollable as laws flowing 
 from the sovereign power in any foreign country. But in this, as in all 
 other countries where there is a written constitution, designating the pow- 
 ers and duties of the legislative, as well as of the other departments of 
 government, an act of the legislature may be void as being against the 
 constitution. The law with us must conform, in the first place, to the 
 constitution of the United States, and then to the subordinate constitution 
 of its particular state, and if it infringes either, it is void. 
 
 6. By whom is the constitutionality of a law determined ? 449 
 
 By the judiciary. The courts of justice have a right, and are in 
 duty bound, to bring every law to the test of the constitution, first, of the 
 United States, and then of their own state, as the paramount and supreme 
 law, to which every inferior or derivative power and regulation must 
 conform. 
 
 7. How is the constitution defined? 449
 
 LEG. XX.] REDUCED TO QUESTIONS AND ANSWERS. 59 
 
 To be the act of the people, speaking in their original character, and 
 defining the permanent conditions of the social alliance. 
 
 8. What was the argument of the supreme court of the United States, 
 in the case of Marbury v. Madison, (1 Cranch, 137,) on the power and 
 duty of the judiciary to disregard an unconstitutional act of congress ? 
 453 
 
 The question, said the chief justice, was, whether an act repugnant to 
 the constitution, can become a law of the land, and it was one deeply inter- 
 resting to the United States. The powers of the legislature are defined and 
 limited by a written constitution. But to what purpose is that limitation, if 
 those limits may at any time be passed ? The distinction between a govern- 
 ment with limited and unlimited powers is abolished, if those limits do not 
 confine, the persons on whom they are imposed, and if acts prohibited, and 
 acts allowed, are of equal obligation. If the constitution does not control 
 any legislative act repugnant to it, then the legislature may alter the con- 
 stitution by an ordinary act. The theory of every government, with a 
 written constitution, forming the fundamental and paramount law of the 
 nation, must, be, that an act of the legislature repugnant to the constitution 
 is void. If void, it cannot bind the courts, and oblige them to give it 
 effect ; for this would be to overthrow, in fact, what was established in 
 theory, and to make that operative as law which is not law. It is the 
 province and duty of the judicial department, to say what the law is ; and 
 if two laws conflict with each other, to decide on the operation of each. 
 So, if the law be in opposition to the constitution, and both apply to a par- 
 ticular case, the court must either decide the case conformably to the law, 
 disregarding the constitution, or conformably to the constitution, disregard- 
 ing the law. If the constitution be superior to an act of the legislature, 
 the courts must decide between these conflicting rules, and how can they 
 close their eyes on the constitution, and see only the law ? 
 
 9. From what time does a statute take effect ? 454 
 
 From its date, if no time be expressed. But remedial statutes may 
 be of a retrospective nature, provided they do not impair contracts, or 
 disturb absolute vested rights, and only go to confirm rights already 
 existing. 
 
 10. What was the English rule ? 456 
 
 That if no period was fixed by the statute itself, it took effect by 
 relation, from the first day of the session in which it. was passed. By the 
 statute 33 Geo. 3. ch. 13, it was declared, that statutes are to have effect 
 only from the time they receive the royal assent. 
 
 11. What is the rule of the code of Napoleon ? 458 
 
 It declares that laws are binding from the moment their promulgation 
 can be known, and that the promulgation should be considered as known 
 in the department of the imperial residence one day after the promulgation,
 
 60 KENT'S COMMENTARIES, [VOL. i. 
 
 and in each of the other departments of the French empire, after the ex- 
 piration of the same length of time, augmented by as many days as 
 there were twenty leagues between the seat of government and the place. 
 
 12. What is the distinction between public and private acts ? 459 
 
 Generally,, statutes are public ; and a private statute may be consid- 
 ered rather as an exception to a general rule. It operates upon particular 
 individuals, or upon private persons. It is said not to bind, or include 
 strangers in interest to its provisions, and they are not bound to take notice 
 of a private act, even though there be no saving clause of the rights of 
 third persons. 
 
 13. What are the rules for the interpretation of statutes ! 460 
 
 It is an established rule in the exposition of statutes, that the intention 
 of the lawgiver is to be deduced from a view of the whole, and every part 
 of a statute, taken and compared together. The real intention, when ac- 
 curately ascertained, will always prevail over the literal sense of terms, 
 x and the reason and intention of the lawgiver will control the strict letter 
 of the law, when the latter would lead to palpable injustice, contradiction, 
 and absurdity. When the words are not explicit, the intention is to be 
 collected from the context, from the occasion, from the necessity of the 
 law, from the mischief felt, arid the remedy in view. Several acts in par i 
 tnateria, and relating to the same thing, are to be taken together, and 
 compared, in the construction of them. 
 
 14. What is the effect of temporary statutes ? 465 
 
 If an act be penal and temporary by the terms or nature of it, the 
 party offending must be prosecuted and punished before the act expires, 
 or be repealed. Though the offence be committed before the expiration 
 of the act, the party cannot be punished after it has expired, unless a par- 
 ticular provision be made for that purpose. If a statute be repealed, and 
 afterwards the repealing clause is repealed, this revives the original act ; 
 and if an act be temporary, and limited to a number of years, and before 
 the expiration of the time it be continued by another act, all acts civil and 
 criminal are to be charged under the authority of the first act. 
 
 15. What is the effect of a penalty prescribed in a statute ? 467 
 
 If a statute inflicts a penalty for doing an act, the penalty implies a 
 prohibition, and the thing is unlawful.
 
 LEC. XXII.] REDUCED TO QUESTIONS AND ANSWERS. 61 
 
 LECTURE XXI. 
 OF REPORTS OF JUDICIAL DECISIONS. 
 
 1. What does the common law include ? 470 
 
 Those principles, usages, and rules of action, applicable to the gov- 
 ernment and security of persons and property, which do not rest for their 
 authority upon any express and positive declaration of the will of the 
 legislature. 
 
 2. What are the sources of the common law ? 470 
 
 A great proportion of the rules and maxims which constitute the im- 
 mense code of common law, grew into use by gradual adoption, and re- 
 ceived, from time to time, the sanction of the courts of justice, without any 
 legislative act or interference. It was the application of the dictates of 
 natural justice, and of cultivated reason, to particular cases. 
 
 3. What is the language of Sir Matthew Hale respecting the common 
 law ? 470 
 
 That it is not the product of the wisdom of one man, or society of 
 men, in any one age ; but of the wisdom, counsel, experience, and obser- 
 vation, of many ages of wise men. 
 
 4. What is the force of adjudged cases ? 473 
 
 The reports of judicial decisions contain the most certain evidence, 
 and the most authoritative and precise application of the rules of the com- 
 mon law. Adjudged cases become precedents for future cases resting 
 upon analogous facts, and brought within the same reason. A solemn 
 decision upon any point of law, arising in any given case, becomes au- 
 thority in a like case. 
 
 LECTURE XXIII. 
 OF THE CIVIL LAW. 
 
 1. By whose order was the great body of the Roman or civil law col- 
 lected and digested ? 515 
 
 By the order of the Emperor Justinian, in the early part of the sixth 
 century.
 
 62 KENT'S COMMENTARIES, [VOL. i. 
 
 2. Where was this venerable system of the civil law created ? 515 
 
 It was created and gradually matured on the banks of the Tiber, by 
 the successive wisdom of Roman statesmen, magistrates, and sages. 
 
 3. Of what did the twelve tables consist ? 521 
 
 Partly of entire laws transcribed from the institutions of other na- 
 tions, and partly of such as were altered and accommodated to the man- 
 ners of the Romans, partly of new provisions, and partly of the laws and 
 usages of their ancient kings. 
 
 END OF VOLUME FIRST.
 
 LEC. XXIV.] REDUCED TO QUESTIONS AND ANSWERS. 63 
 
 VOLUME II. 
 
 OF THE LAW CONCERNING THE RIGHTS 
 OF PERSONS. 
 
 LECTURE XXIV. 
 OF THE ABSOLUTE RIGHTS OF PERSONS. 
 
 1. How are the rights of persons in private life divided ? 1 
 Into either absolute or relative. 
 
 2. What are absolute rights ? 1 
 
 Such as belong to individuals in a single unconnected state. 
 
 3. What are relative rights ? 1 
 
 Those which arise from the civil and domestic relations. 
 
 4. What three absolute rights are named by the commentator ? 1 
 
 The right of personal security ; the right of personal liberty ; and 
 the right to acquire and enjoy property. These rights have been justly 
 considered, and frequently declared, by the people of this country, to be 
 natural, inherent, and unalienable. 
 
 5. On what does the effectual enjoyment of them depend ? 1 
 
 Upon civil liberty ; and that consists in being protected and governed 
 by laws made, or assented to, by the representatives of the people, and 
 conducive to the general welfare. 
 
 The history of our colonial governments bears constant marks of the 
 vigilance of a free and intelligent people, who understood the best securi- 
 ties for political happiness, and the true foundation of the social ties. The 
 inhabitants of the colonies of Plymouth and Massachusetts, in the infancy 
 of their establishments, declared by law that the free enjoyment of the 
 liberties which humanity, civility, and Christianity called for, was due to 
 every man in his place and proportion, and ever had been, and ever would 
 be, the tranquillity and stability of the commonwealth. They insisted that 
 they brought with them into this country the privileges of English free- 
 men ; and they defined and declared those privileges, with a caution, sa- 
 gacity, and precision, that have not been supassed by their descendants.
 
 64 KENT'S COMMENTARIES, [VOL. n. 
 
 6. What was their fundamental doctrine ? 2 
 
 That no tax, aid, or imposition whatever, could rightfully be assessed 
 or levied upon them, without the act or consent of their own legislature ; 
 and that justice ought to be equally, freely, impartially, and promptly ad- 
 ministered. The right of trial by jury, and the necessity of due proof 
 preceding conviction, were claimed to be undeniable rights ; and it was 
 further expressly ordained, that no person should suffer without express 
 law, either in life, limb, liberty, good name, or estate ; nor without first 
 being brought to answer by due course and process of law. 
 
 7. What are the fifteen provisions named by the commentator, for 
 guarding the right of personal security? 12 
 
 1. That no person except on impeachment, and in the cases arising 
 in the military and naval service, shall be held to answer for a crime above 
 petit larceny, unless he shall have been previously charged, on the pre- 
 sentation or indictment of a grand jury. 
 
 2. No person shall be subject, for the same offence, to be twice put 
 in jeopardy of life or limb. 
 
 3. Nor be compelled in any criminal case, to be a witness against 
 himself. 
 
 4. In all criminal prosecutions, the accused is entitled to a speedy 
 and public trial by an impartial jury. 
 
 5. And upon the trial he is entitled to be confronted with the witnes- 
 ses against him. 
 
 6. To have compulsory process for witnesses in his favour. 
 
 7. To have the assistance of counsel in his defence. 
 
 8. Excessive bail shall not be required, nor excessive fines imposed, 
 nor cruel and unusual punishments inflicted. 
 
 9. No bill of attainder, nor ex post facto law can be passed. 
 
 10. No person can be deprived of life, liberty, or property, unless by 
 the law of the land, or the judgment of his peers. 
 
 11. Every person incase of impending danger, is entitled to the 
 protecting arm of the magistrate, and may require his adversary to be 
 bound to keep the peace. 
 
 12. If violence has been actually offered, the offender is not only lia- 
 ble to a public prosecution and punishment, but is bound also to render the 
 party injured compensation in damages. 
 
 13. Every man may exercise the natural right of self defence, in 
 those cases where the law is either too slow, or too feeble, to stay the 
 hand of violence. 
 
 14. Homicide is justifiable when necessary for self defence, or in de- 
 fence of near relations, against persons attempting to commit a known 
 felony, with force, against one's person, habitation, or property. 
 
 15. Every one is entitled to the enjoyment of his reputation. 
 
 8. Into what two kinds does the law distinguish injuries affecting the 
 reputation of individuals ? 1 6 
 
 Into slander spoken and slander by writing, signs, or pictures. The
 
 LEC. XXIV.] REDUCED TO QUESTIONS AND ANSWERS. 65 
 
 Roman law took this distinction between slander spoken and written, and 
 the same distinction prevails in our law, which considers the slander of a 
 private person by words, in no other light than a civil injury, for which a 
 pecuniary compensation may be obtained. 
 
 9. In what does this injury consist ? 16 
 
 In falsely and maliciously charging another with the commission of 
 some public offence, or the breach of some public trust, or with any matter 
 in relation to his particular trade or vocation, and which, if true, would 
 render him unworthy of employment ; or, lastly, with any other matter or 
 thing, by which special injury is sustained. 
 
 10. What is a libel? 17 
 
 It is a malicious publication, expressed either in printing or writing, 
 or by signs or pictures, tending either to blacken the memory of one dead, 
 or the reputation of one living, and expose him to public hatred, contempt, 
 or ridicule. A malicious intent towards government, magistrates, or indi- 
 viduals, and an injurious or offensive 'tendency, must concur to constitute 
 the libel. i 
 
 11. In what light does the law consider this grievance ? 17 
 
 As a public as well as a private injury ; and has rendered the party 
 not only liable to a private suit at the instance of the party libelled, but 
 answerable to the state by indictment, as guilty of an offence tending di- 
 rectly to a breach of the public peace. But though the law be solicitous 
 to protect every man in his fair fame and character, it is equally careful 
 that the liberty of speech, and of the press, should be duly preserved. 
 The liberal communication of sentiment, and entire freedom of discussion, 
 in respect td the character and conduct of public men, and of candidates 
 for public favour, is deemed essential to the judicious exercise of the right 
 of suffrage, and of that control over their rulers, which resides in the free 
 people of the United States. It has, accordingly become, a constitutional 
 principle in this country, that " every citizen may freely speak, write, and 
 publish his sentiments, on all subjects, being responsible for the abuse of 
 that right, and that no law can rightfully be passed to restrain or abridge 
 the freedom of speech, or of the press." The law of England, even under 
 the Anglo-Saxon line of princes, took severe and exemplary notice of 
 defamation, as an offence against the public peace ; and in the time of 
 Henry III., Bracton adopted the language of the Institutes of Justinian, 
 and held slander and libellous writings to be actionable injuries. 
 
 12. Where is the first private suit, for slanderous words to be met with 
 in the English law? 18 
 
 In the reign of Edward III., and for the high offence of charging 
 another with a crime which endangered his life. Reeve's Hist, of English 
 law, vol. 3, p. 90. 
 9
 
 66 KENT'S COMMENTARIES, [VOL. n. 
 
 13. What is the general rule of evidence in prosecutions for injuries to 
 private reputation ? 18 
 
 That in a private action of slander for damages, even in the action of 
 scandalum magnatum, the defendant may justify, by showing the truth of 
 the fact charged. But in the case of a public prosecution for a libel, it 
 .became the established principle of the English law, as declared in the 
 court of star chamber, about the beginning of the reign of James I., that 
 the truth of the libel could not be shown by way of justification. The 
 English common law doctrine of libel, is the common law doctrine of this 
 country, in all cases in which it has not been expressly controlled by 
 constitutional or legislative provisions. 
 
 14. How far is the common law of England, considered to be the law 
 of the United States ? 28 
 
 In all cases in which it has not been altered or rejected by statute, 
 or varied by local usages, under the sanction of judicial decisions. 
 
 15. What are the principal statute provisions in New York, on the writ 
 of habeas corpus ? 29 
 
 That, all persons restrained of their liberty, under any pretence what- 
 soever, are entitled to prosecute this writ, unless they be persons detained : 
 1. By process from any court or judge of the United States, having ex- 
 clusive jurisdiction in the case. 2. Or by final judgment or decree, or 
 execution thereon, of any competent tribunal of civil or criminal jurisdic- 
 tion, other than in a case of commitment for any alleged contempt. The 
 application for the writ must be to the supreme court, or chancellor, or 
 a judge of the court, or other officer, having the powers of a judge, at 
 chambers ; and it must be by petition in writing, signed by, or on behalf 
 of the party ; and it must state the grounds of the application, and the 
 facts must be sworn to. The penalty of $1000, is given in favour of the 
 party aggrieved, against every officer, and against every member of the 
 court assenting to the refusal, if any court or officer authorized to grant 
 the writ, shall refuse it when legally applied for. If the person to whom 
 the writ is directed, or on whom it is served, shall not promply obey the 
 writ, by making a full and explicit return, and shall fail to produce the 
 party, without a sufficient cause, he is liable to be forthwith attached x and 
 committed, by the person granting the writ, to close custody, until he shall 
 have obeyed the writ. A person discharged upon habeas corpus is not to 
 be re-imprisoned for the same cause, and if any person solely, or as a 
 member of any court, or in execution of any order, knowingly re-imprison 
 such party, he forfeits a penalty of $1250 to the party aggrieved. 
 
 16. What has the constitution of the United States ordained upon the 
 subject of religion ? 35 
 
 That congress shall make no law respecting an establishment of re- 
 ligion, or prohibiting the free exercise thereof, and the same principle 
 appears in all the state constitutions.
 
 LEG. XXV.] REDUCED TO QUESTIONS AND ANSWERS. 67 
 
 LECTURE XXV. 
 OF ALIENS AND NATIVES. 
 
 1. Who are natives ? 39 
 
 All persons born within the jurisdiction of the United States. If 
 they were resident citizens at the time of the declaration of independence, 
 though born elsewhere, and deliberately acceded to it an express or im- 
 plied sanction, they became parties to it, and are to be considered as na- 
 tives ; their social tie being coeval with the existence of the nation. 
 
 2. What is the doctrine of the English law as to the allegiance of nat- 
 ural born subjects ? 42 
 
 That they owe an allegiance which is intrinsic and perpetual, and 
 which cannot be devested by any act of their own. In the case of Mac- 
 donald, who was tried bdjpre Ch. J. Lee, and who, though born in England, 
 had been educated in France, and spent his riper years there ; his coun- 
 sel spoke against the doctrine of natural allegiance as slavish, and repug- 
 nant to the principles of their revolution. The court, however, said, that 
 it had never been doubted, that a subject born, taking a commission from a 
 foreign prince, and committing high treason, was liable to be punished as 
 a subject for that treason. They held, that it was not in the power of any 
 private subject to shake off his allegiance and transfer it to a foreign 
 prince ; nor was it in the power of any foreign prince by naturalizing or 
 employing a subject of Great Britain, to dissolve the bond of allegiance 
 between the subject and the crown. 
 
 3. What is the rule on this subject, in the United States ? 44 
 
 It is not settled, but the better opinion and more authorative doctrine 
 is, that the English common law prevails, subject to the power of congress 
 to regulate by law, but no such power has yet been exercised. 
 
 4. What is the law of France on this point? 50 
 
 The French law will not allow a natural born subject of France, to 
 bear arms, in time of war, in the service of a foreign power, against 
 France ; and yet, subject to that limitation, every Frenchmen is free to 
 abdicate his country. 
 
 5. Who is an alien ? 50 
 
 An alien is a person born out of the jurisdiction of the United States. 
 There are, however, some exceptions to this rule, as the children of am- 
 bassadors, (and other citizens temporarily absent,) born abroad.
 
 68 KENT'S COMMENTARIES, [VOL. n. 
 
 6- What is the rule of the common law as to an alien's right to hold 
 real estate? 53 
 
 That an alien cannot acquire title by descent, or created by other 
 mere operation of law. 
 
 7. What is the^general rule, if an alien purchase land, or if land be 
 devised to him ? 54 
 
 That he may take and hold, until an inquest of office has been had ; 
 but upon his death, the land would instantly, and of necessity, (as the 
 freehold cannot be kept in abeyance,) without any inquest of office, 
 escheat and rest in the state, because he is incompetent to transmit by 
 hereditary descent. 
 
 8. May natural born subjects inherit, through an alien, the estates of 
 their ancestors 1 56 
 
 They may. 
 
 9. What property may aliens acquire? 62 
 
 They may take a lease for years, of a house for the benefit of trade ; 
 and they are capable of acquiring, holding, and transmitting personal 
 property in like manner as our citizens, and they can bring suits for the 
 recovery and protection of that property. They may take a mortgage 
 upon real estate, by way of security for a debt, and are entitled to come 
 into a court of equity, and have the mortgage foreclosed. 
 
 10. In what manner, under the act of May, 1828, may an alien become 
 a citizen of the United States ? 64 
 
 It is required, that he declare, on oath, before a state court, being a 
 court of record, with a seal and clerk, and having common law jurisdic- 
 tion, or before a circuit or district court of the United States, or before a 
 clerk of either of said courts, two years, at least, before his admission, his 
 intention to become a citizen, and to renounce his allegiance to his own 
 sovereign. At the time of his admission, his country must be at peace 
 with the United States, and he must, before one of these courts, take an 
 oath to support the constitution of the United States, and likewise, on oath, 
 to renounce and abjure his native allegiance. He must, at the time of his 
 admission, satisfy the court, by other evidence than his own oath, that he 
 has resided five years at least, within the United States, and one year, at 
 least, within the state where the court is held ; and if he have arrived 
 after the peace of 1815, his residence must have been continued for five 
 years next preceding his admission, without being at any time, during the 
 five years, out of the territory of the United States. He must satisfy the 
 court, that during that time he has behaved as a man of good moral char- 
 acter, attached to the principles of the constitution of the United States, 
 and well disposed to the good order and happiness of the same. He must, 
 at the same time, renounce any title, or order of nobility, if any he hath.
 
 LEC. XXVI.] REDUCED TO QUESTIONS AND ANSWERS. 69 
 
 11. To whom does the act of congress confine the description of aliens 
 capable of naturalization ? 72 
 
 To " free white persons," I presume^ (says the commentator ;) this 
 excludes the inhabitants of Africa, and their descendants, and it may be- 
 come a question to what extent persons of mixed blood are to be excluded, 
 and what shades and degrees of mixture of colour disqualify an alien from 
 application for the benefits of the act of naturalization. Perhaps there 
 might be difficulties also as to the copper-coloured natives of America, or 
 the yellow or tawny races of Asiastics, and it may well be doubted whether 
 any of them are " white persons," within the purview of the law. It is 
 the declared law of New York and South Carolina, that Indians are not 
 citizens, but distinct tribes, living under the protection of government, and, 
 consequently, never can be made citizens under the act of congress. 
 
 9 
 
 LECTURE XXVI. 
 
 OF THE LAW CONCERNING MARRIAGE. 
 
 1. What is the primary and most important of the domestic relations 1 
 74 
 
 That of husband and wife. 
 
 2. In what has it its foundation ? 74 
 
 In nature, and is the only lawful relation by which Providence has 
 permitted the continuance of the human race. 
 
 3. What is its moral influence ? - 74 
 
 In every age it has had a propitious influence on the moral improve- 
 ment and happiness of mankind. It is one of the chief foundations of 
 social order. We may justly place to the credit of the institution of mar- 
 riage, a great share of the blessings which flow from refinement of man- 
 ners, the education of children, the sense of justice, and the cultivation 
 of the liberal arts. 
 
 4. Who are incapable of contracting marriage ? 74 
 
 All persons who have not the regular use of their understanding, suffi- 
 cient to deal with discretion in the common affairs of life, as idiots, and 
 lunatics, (except in their lucid intervals,) are incapable of agreeing to any 
 contract, and of course to that of marriage.
 
 70 KENT'S COMMENTARIES, [VOL. n. 
 
 5. What does the law consider as the basis of the marriage contract ? 
 76 
 
 The consent of the parties, and the ingredient of fraud or duress, is 
 fatal in this as in any other contract, for the free assent of the mind is 
 wanting. The common law allowed divorces a vinculo, causa metus, causa 
 impotentia, and those were cases of a fradulent contract. It is said that 
 error will, in some cases, destroy a marriage, and render the contract void, 
 as if one person be substituted for another. This, however, would be a case 
 of palpable fraud, going to the ground of the contract ; and it would be 
 difficult to state a case, in which error simply, and without any other in- 
 gredient, as to the parties, or one of them, in respect to the other, would 
 vacate the contract. It is well understood that error, and even disinge- 
 nuous representations, in respect to the qualities of one of the contracting 
 parties, as his condition, rank, fortune, manners, and character, would be 
 insufficient. The law makes no provision for the relief of a blind creduility 
 however it may have been produced. 
 
 6. Whatsis the age of consent fixed by the common law ? 78 
 
 Fourteen years in males, and twelve in females. This rule was de- 
 rived from the civil law which established the same periods of twelve and 
 fourteen, as the competent age to render the contract binding, the same 
 rule prevailed in France, before their revolution ; but by the code of Na- 
 poleon, the age of consent was raised to eighteen in males, and fifteen in 
 females, though a dispensation from the rule may be granted for good 
 cause. 
 
 7. How does the law regard a second marriage, while a former husband 
 or wife is living 1- 79 
 
 As absolutely null and void ; and.it is probably an indictable offence 
 in most, if not all of the states of the union. In New York, it is declared 
 by statute, to be an offence punishable by imprisonment in the state prison, 
 in all but certain excepted cases. 
 
 8. What are those cases ? 79 
 
 When the husband or wife, as the case may be, of the party who re- 
 marries, remains continually without the United States for five years to- 
 gether ; or when one of the married parties shall have absented from the 
 other by the space of five successive years, and the one remarrying not 
 knowing the other, who had absented, to be living within that time ; or 
 when the person re-marrying was, at the time of such marriage, divorced 
 by sentence of a competent court, or if the former husband or wife of the 
 person re-marrying had been sentenced to imprisonment for life ; or if the 
 former marriage has been duly declared void, or made within the age of 
 consent. 
 
 9. How does the law regard the intermarriage of relations ? 82
 
 LEG. XXVI.] REDUCED TO QUESTIONS AND ANSWERS. 71 
 
 In most countries of Europe in which the canon law has had authority 
 or influence, marriages are prohibited between near relations by blood or 
 marriage. Prohibitions similar to the canonical disabilities in the English 
 ecclesiastical law, were contained in the Jewish laws ; and they existed 
 also in the laws and usages of the Greeks and Romans, subject to consid- 
 erable alternations of opinion, and various modifications and extent. It is 
 very difficult to ascertain exactly the point at which the laws of nature 
 have ceased to discountenance the union. It is very clearly established 
 that marriages between relations by blood in the lineal, ascending or de- 
 scending lines, are unnatural and unlawful, and they lead to a confusion 
 of rights and duties. On this point, the civil, canon, and the common laws 
 are in perfect harmony. In several of the United States, marriages within 
 the levitical degrees, under some exceptions, are made void. In New 
 York, marriages between relatives of the ascending and descending lines 
 and between brothers and sisters, of the half as well as of the whole blood 
 are declared incestuous and void. So in Massachusetts. In Ohio marri- 
 ages between nearer of kin than first dousins are void. So in Louisiana ; 
 and this according to the civil law. 
 
 10. What is the rule respecting the consent of parents and guardians? 
 
 84 
 
 That it is not requisite to the validy of a marriage. 
 
 11. What are the ceremonies required? 86 
 
 No peculiar ceremonies are requisite by the common law, to the valid 
 celebration of marriage. The consent of the parties is all that is required ; 
 and marriage is said to be a contract jure gentium, that consent is all that 
 is required by natural or public law. If the contract be made per verba 
 de prasenti, and remains without cohabitation, or if made per verba de 
 futuro, and is followed by consummation, it amounts to a valid marriage, and 
 which the parties cannot dissolve, and it is equally binding as if made in 
 facie ecclesicB. 
 
 12. In what light does the law consider marriage ? 87 
 In no other light than as a civil contract. 
 
 13. How must the consent of the parties be declared ? 87 
 
 It may be declared before a magistrate, or simply before witnesses, 
 or subsequently confessed or acknowledged, or the marriage may even be 
 inferred from continual cohabitation, and reputation as husband and wife, 
 except in cases of civil actions for adultery, or public prosecutions for 
 bigamy. This facility in forming the marriage contract by the common 
 and ecclesiastical law, exists in the American states where the common 
 law has not been altered on this point. In the Roman catholic church, 
 by the authority of the council of Trent, marriage was elevated into the 
 dignity of a sacrament, and was clothed with formalities, and made a com- 
 plicated system. But in France, under the revolutionary constitution of
 
 72 KENT'S COMMENTARIES, [VOL. n. 
 
 1791, marriage was declared to be regarded as a mere civil contract. The 
 same principle was adopted in the code Napoleon ; and now, says Toullier, 
 the law separates the civil contract entirely from the sacrament of mar- 
 riage, and does not attend to the forms of the church and the nuptial ben- 
 ediction, which bind only the conscience of the faithful. Marriage valid 
 by the law of the place where it is celebrated is valid every where. The 
 principle is that, with respect to marriage, the lex loci contractus prevails 
 over the lex domicilii, as being the safer rule, and one dictated by just and 
 enlightened views of international jurisprudence. 
 
 14. What are the incidents of marriage respecting property, according 
 to the jus guentium 1 94 
 
 They are drawn by Mr. Justice Story, as follows : 1. That where 
 there is a marriage in a foreign country, and an express nuptial contract 
 concerning personal property, it will be sustained every where, unless it 
 contravenes some positive rule of law or policy. But as to real property, 
 it will be made subservient to the lex rei sitae. 2. Where such a contract 
 applies to personal property, and there is a change afterwards of the ma- 
 trimonial domicil, the law of the actual domicil will govern as to future 
 acquisitions. 3. If there be no such contract, the matrimonial domicil 
 governs all the personal property everywhere, but not the real. 4. The 
 matrimonial domicil governs as to all acquisitions present and future, if 
 there be no change of domicil. If there be, then the law of the actual 
 domicil will govern as to future acquisitions, and the law rei sites as to 
 real property. If the marriage takes place in a foreign country in transitu, 
 and where the parties had no intention of fixing their domicil, the law of 
 the actual or intended domicil of the parties governs the incidents of the 
 marriage ; and it is a general rule that if the husband and wife had differ- 
 ent domicils when they married, the domicil of the husband became the 
 true and matrimonial domicil. 
 
 LECTURE XXVII. 
 OF THE LAW CONCERNING DIVORCE. 
 
 1. What are the provisions made by the revised statutes of New York, 
 on the subject of divorce ? 96 
 
 They have authorized the chancellor, on suit before him, by bill, to 
 declare void the marriage contract : 1. If either of the parties, at the time 
 of the marriage, had not obtained the age of legal consent. 2. If the 
 former husband, or wife 'was living and the marriage in force. 3. If one
 
 LEG. XXVII.] REDUCED TO QUESTIONS AND ANSWERS. 73 
 
 of the parties was an idiot or lunatic. 4. If the consent of one of the 
 parties was obtained by force or fraud. 5. If one of the parties was phys- 
 ically incapable of entering into the marriage state. All issues upon the 
 legality of a marriage, except where it is sought to be annulled on the 
 ground of physical incapacity of one of the parties, are to be tried by a 
 jury upon a feigned issue. 
 
 2. Within what time must the suit be brought for the last cause to annul 
 a marriage ? 97 
 
 Within two years, and by the party injured. 
 
 3. As the law now stands in New York, in what three cases only, can 
 a bill of divorce for adultery be obtained ? 98 
 
 1. If the married parties are inhabitants of the state, at the time of 
 the commission of the adultery. 2. If the marriage took place in the 
 state, and the party injured be an actual resident at the time of the adul- 
 tery committed, and at the time of filing the bill. 3. If the adultery 
 was committed in the state, and the injured party, at the time of filing the 
 bill, be an actual inhabitant of the state. 
 
 4. What is the punishment of a defendant, if guilty ? 98 
 Disability from re-marrying during the life of the other party. 
 
 5. How does it affect children ? 99 
 
 If the wife be the complainant, the legitimacy of any children of the 
 marriage, born or begotten of her before the filing of the bill, are not to 
 be affected by the decree ; and if the husband be the complainant, the 
 legitimacy of the children, born or begotten before the commission of the 
 offence charged, are not to be affected by the decree. The statute further 
 provides, that if the wife be the complainant, the court is to make a suita- 
 ble allowance, in sound discretion, out of the defendant's property, for the 
 maintenance of her and her children, and compel the defendant to abide 
 the decree. The chancellor is also to give to the wife, being the injured 
 party, the absolute enjoyment of any real estate belonging to her, or of 
 any personal property derived by title through her, or acquired by her 
 industry. If, on the other hand, the husband be the complainant, then he 
 is entitled to retain the same interest in the wife's estate, which he would 
 have if the marriage had continued ; and he is also entitled to her per- 
 sonal estate and choses in action which she possessed at the time of the 
 divorce, equally as if the marriage had continued ; and the wife loses her 
 title to dower, and to a distributive share of her husband's personal 
 estate. 
 
 6. In what cases may the court refuse to decree a divorce, though the 
 fact of adultery be established ? 101 
 
 In the four following : 1. If the offence was committed by the pro- 
 10
 
 74 KENT'S COMMENTARIES, [VOL. n. 
 
 curement or with the connivance of the complainant. 2. If it has been 
 forgiven, and the forgiveness proved by express proof, or by the voluntary 
 cohabitation of the parties with knowledge of the fact. 3. Where the 
 suit has not been brought within five years after the adultery. 4. Or 
 where the complainant has been guilty of the same offence. The policy 
 of New York has been against divorces from the marriage contracts, 
 except for adultery. The statute authorizes the court of chancery 
 to allow of qualified divorces a mensa et thoro, founded on the complaint 
 of the wife, of cruel or inhuman treatment, or such conduct as renders it 
 unsafe or improper for her to cohabit with her husband ; or for wilful de- 
 sertion of her, and refusal or neglect to provide for her. The court may 
 decree a separation from bed and board for ever, or for a limited period, in 
 its discretion, and the decree may be revoked at any T time, by the same 
 court, by which it was pronounced, under such regulations and restrictions 
 as the court may impose, upon a joint application of the parties, and upon 
 their producing satisfactory evidence of their reconciliation. To entitle 
 the court to sustain a suit, the parties must be inhabitants of the state, and 
 the wife an actual resident at the time of exhibiting the complaint ; or the 
 parties must have been inhabitants of the state, at least one year, and the 
 wife an actual resident at the time of filing the bill. 
 
 7. What is the effect of a foreign divorce, or how far is a divorce in 
 one state valid in another ? 107 
 
 The question has never been judicially raised and determined in 
 the United States, and it has generally been considered that the state gov- 
 ernments have complete control and discretion in the case. In Harding v. 
 Allen, (9 Greenleafs Rep., 140,) it was adjudged by the supreme judicial 
 court in Maine, that a decree of divorce pronounced according to the law 
 of one jurisdiction, and the new relations thereupon formed, ought to be 
 recognized in the absence of all fraud, as operative and binding every 
 where, so far as related to the dissolution of marriage, though not as to 
 other parts of the decree, such as an order for the payment of money by 
 the husband. This is deemed a correct and valuable decision in this 
 country', though contrary to the English rule which is, that a foreign 
 divorce a vinculo, from an English marriage, between parties domiciled in 
 England at the time of such marriage is null. 
 
 8. What is the effect of a foreign judgment ? 118 
 
 In cases not governed by the constitution and laws of the United 
 States, the doctrine of the English law on that subject, is generally the 
 law of this country ; and there a distinction is taken between a suit 
 brought to enforce a foreign judgment, and a plea of a foreign judgment in 
 bar of a fresh suit for the same cause. No sovereign is obliged to exe- 
 cute, within his dominion, a sentence rendered out of it ; and if execution 
 be sought by suit upon the judgment, or otherwise, he is at liberty, in his 
 courts of justice, to examine into the merits of such judgment; for the 
 effect to be given to foreign judgments is altogether a matter of comity, in 
 cases where it is not regulated by treaty. In the former case of a suit
 
 LEC. XXVIII.] REDUCED TO QUESTION'S AND ANSWERS. 75 
 
 to enforce a foreign judgment, the rule is, that the foreign judgment is to 
 be received, in the first instance, as prima facie evidence of the debt, and 
 it lies on the defendant to impeach the justice of it, or show that it was 
 irregularly and unduly obtained. But if the foreign judgment has been 
 pronounced by a court possessed of competent jurisdiction over the cause 
 and the parties, and carried into effect, and the losing party institutes a 
 new suit upon the same matter, the plea of the former judgment is an 
 absolute bar. It is a res judicata, which is received as evidence of truth ; 
 and the exceptio rei judicata, as the plea is termed in the civil law, is final. 
 This is a principle of general jurisprudence. 
 
 9. What is the effect of a suit pending before another competent tribu- 
 nal 1122 
 
 A. Us pendens, before the tribunals of another jurisdiction has, in pro- 
 ceedings in rem, been held to be a good plea in abatement of a suit. The 
 pendency of the foreign attachment is a good plea in abatement of the 
 suit. But, generally, a personal arrest and holding to bail in a foreign 
 country, cannot be pleaded in abatement ; and it is no obstacle to a new- 
 arrest and holding to bail for the same cause in the English courts, and 
 they will not take judicial notice of any arrest in a foreign country, or in. 
 their own plantations ; and the same rule of law has been declared in this 
 country. 
 
 LECTURE XXVIII. 
 OF HUSBAND AND WIFE. 
 
 1. Can any contracts at law be made between husband and wife ? 129 
 
 Not without the intervention of trustees : for she is considered as 
 being sub potestate viri, and incapable of contracting with him ; and ex- 
 cept in special cases, within the cognizance of equity, the contracts which 
 subsisted between them prior to the marriage, are dissolved. The wife 
 cannot convey lands to her husband, though she may release her right of 
 dower to his grantee ; nor can the husband convey lands by deed directly 
 to the wife. But the husband may devise lands to his wife, for the in- 
 strument is not to take effect until after his death ; and by a conveyance to 
 uses, he may create a trust in favour of his wife, and equity will decree a 
 performance of the contract by the husband with his wife, for her benefit. 
 
 2. What is the general rule as to the rights and liabilities of the hus- 
 band? 129
 
 76 KENT'S COMMENTARIES, [VOL. n. 
 
 That he becomes, upon the marriage, entitled to all the goods and 
 chattels of the wife, and to the rents and profits of her lands, and he be- 
 comes liable to pay her debts, and perform her contracts. 
 
 3. What right in the lands of his wife, does the husband acquire by 
 marriage ? 130 
 
 If the wife, at the time of marriage, be seised of an estate of inheri- 
 tance in land, her husband, upon the marriage, becomes seised of the free- 
 hold jure uxoris. 
 
 4. What right does the husband acquire in the life estate of his wife 1 
 134 
 
 Upon the marriage, he becomes seised of such an estate in right of 
 his wife, and is entitled to the profits during the marriage. 
 
 5. What if she have an estate during the life of another person who 
 survives her? 134 
 
 The husband becomes a special occupant of the land, during the life 
 of such other person. 
 
 6. To whom does the land go after the estate for life is ended ? 134 
 
 To the person entitled in reversion or remainder, and the husband, 
 quasi husband, has no more concern with it. This estate the husband can 
 only sell or charge to the extent of his interest in it, and his representa- 
 tives take as emblements the crops growing at his death. 
 
 7. What rights has the husband in the chattels real of his wife ? 134 
 
 Upon marriage, he becomes possessed of all the chattels real of his 
 wife, as leases for years, and the law gives him power without her, to 
 assign, mortgage, or otherwise dispose of the same as he pleases, by any 
 act in his lifetime ; except it be such an interest as the wife hath, by pro- 
 vision or consent of her husband, by way of settlement. Such chattels 
 real are also subject to be sold under execution for his debts. 
 
 8. What if he makes no disposition of them in his lifetime ? 134 
 
 He cannot devise the chattels real by will, and the wife, after his 
 death, will take the same in her own right, without being executrix or ad- 
 ministratrix to her husband. If he grant, a rent charge, out of the same, 
 without altering the estate, the rent charge becomes void at his death. 
 
 9. What property in her chattels real, does the law give him if he 
 survive the wife ? 134 
 
 It gives him her chattels real, absolutely by survivorship ; for he was 
 in possession of the chattels real during the coverture, by a kind of joint 
 tenancy with the wife.
 
 LEC. XXVIII.] REDUCED TO QUESTIONS AND ANSWERS. 77 
 
 10. What is the rule respecting the wife's chases in action ? 135 
 
 That the husband has power to sue for, and recover the same ; and 
 when recovered, and reduced to possession, and riot otherwise, the money 
 becomes absolutely his own. The rule is the same, if a legacy or distri- 
 butive share accrues to the wife during coverture. So, he has power to 
 release and discharge the debts, and to change the securities, with the con- 
 sent of the debtor. 
 
 11. What if he dies before he has recovered the money ? 135 
 
 The wife will be entitled to the debts in her own right, without ad- 
 ministering on his estate, or holding the same as assets for his debts. 
 
 12. What if the wife dies, and he survives her, before he has reduced 
 the chose in action to possession ? 135 
 
 It does not strictly survive to him ; but he is entitled to recover the 
 same to his own use, by acting as her administrator. The husband is 
 entitled jure mariti, to administer, and to take all her chattels real, things 
 in action, and every other species of personal property, whether reduced 
 into possession, or contingent, or recoverable by suit. 
 
 13. What is the rule as to the wife's debts dum sola ? 135 
 
 That if the wife leaves choses in action not reduced into possession 
 during her life, the husband will be liable to that extent ; for those choses 
 in action will be assets in his hands. 
 
 14. What is the rule, where the husband has administered in part on 
 his wife's estate, and dies, and administration de bonis non of the wife, by 
 a third person or by the next of kin of the wife is obtained ? 136 
 
 That such administrator would be deemed as a mere trustee for the 
 representatives of the husband. 
 
 15. What if a suit be brought in the joint name of husband and wife to 
 recover the wife's chose in action, and he die before he had reduced the 
 property to possession? 138 
 
 The wife as survivor would take the benefit of recovery ; and it is 
 settled that in a suit in chancery, by the husband, to recover a legacy, or 
 distributive share due the wife, she must be made a party with him, and 
 then the court will require the husband to make a suitable provision for 
 the wife out of the property. 
 
 16. How does a general assignment in bankruptcy, or under the insol- 
 vent laws, affect the wife's property ? 138 
 
 It passes her property and choses in action, but subject to her right of 
 survivorship ; and if the husband dies before the assignees have reduced 
 the property to possession, it will survive to the wife, for the assignees
 
 78 KENT'S COMMENTARIES, [VOL. n. 
 
 possess the same rights as the husband before the bankruptcy, and none 
 other. 
 
 17. What is the rule in chancery as to the wife's equity to a rea- 
 sonable provision out of her property, for the support of herself and her 
 children? 139 
 
 That if the husband wants the aid of chancery to enable him to get pos- 
 session of his wife's property, he must do what is equitable, by making a 
 suitable provision out of it for the maintenance of her and her children. 
 Whether the suit for the wife's debt, legacy, or portion, be by the husband 
 or by his assignees, the result is the same, and a proper settlement on the 
 wife must first be made of a proportion of the property. The provision is 
 to be apportioned, not merely to that part of the equitable portion of the 
 wife's estate which the husband seeks, but to the whole of her personal 
 fortune, including what the husband had previously received. The prin- 
 ciple is, that chancery will lay hold of the property of the wife, as far as 
 it may be in its power, for the purpose of providing a maintenance for 
 her when she is abandoned by her husband. The wife's equity does not 
 attach, except upon that part of her personal property in action which the 
 husband cannot acquire without the assistance of a court of equity. 
 
 18. What is the difference as to chases in action belonging to the wife> 
 whether the husband sues in his own name exclusively, or jointly with his 
 wife? 142 
 
 The principle of the distinction is, that if he brings the action in his 
 own name alone, (as it is said he may for debt due the wife upon bond, 1 
 Vern. 396. 3 Lev. 403,) it is a disagreement to the wife's interest, and 
 implies it to be his intention that it should not survive her. But if he 
 brings the action in their joint names, the judgment is, that they shall both 
 recover, and the debt survives to the wife. The judgment does not alter 
 the property, nor show it to be his intention that it should be altered. For 
 a summary of the causes, for which the husband may sue alone, and when he 
 must join with his wife, see 1 Chitty on Pleading, 17, 21, and also Tidd's 
 Prac. 9. 
 
 19. What is the rule of equity in case the husband has made a marriage 
 settlement on his wife, in consideration of her fortune ? 142 
 
 He is considered in the light of a purchaser of her fortune, and his 
 representatives will be entitled, on his dying in his wife's lifetime, to the 
 whole of her things in action, though not reduced to possession in his life- 
 time, and though there be no special agreement for that purpose. 
 
 20. What is the rule as to the personal property of the wife, which she 
 had in possession at the time of the marriage ? 143 
 
 That which she had in her own right, and not en enter droit, such as 
 money, goods and chattels, and moveables, vest immediately and absolutely
 
 LEG. XXVIII.] REDUCED TO QUESTIONS AND ANSWERS. 79 
 
 in the husband, and on his death they go to his representatives, as being 
 entirely his property. 
 
 21. What is the rule as to the liability of the husband for the wife's 
 debts ? 143 
 
 That he is liable for all her debts before coverture ; but if they are 
 not recovered during the coverture, he is discharged. The debts of the 
 wife dum sola, are extinguished by the husband's discharge as a bankrupt 
 or insolvent. 2 Neville <S$ Manning's Rep. 255. 
 
 22. How far is the husband liable for the contracts of his wife during 
 coverture ? 146 
 
 The husband is bound to provide his wife with necessaries suitable to 
 his condition in life ; and if she contracts debts due for them during cohabi- 
 tation, he is obliged to pay those debts ; but for any thing beyond neces- 
 saries he is not chargeable. He is bound by her contracts for ordinary 
 purchases, from a presumed assent on his part ; but if his dissent be pre- 
 viously made known, the presumption of his assent is rebutted. If the 
 tradesman furnish goods to the wife, and gives the credit to her, the hus- 
 band is not liable, though she was at the time living with her husband. 
 Nor is he liable for money lent to the wife, unless his request be averred 
 and shown. So, if the husband makes a reasonable allowance to the wife 
 for necessaries during his temporary absence, and a tradesman, with no- 
 tice of this, supplies her with goods, the husband is not liable, unless the 
 tradesmen can show, that the allowance was not supplied. If the husband 
 abandons his wife, or they separate by consent, without any provision for 
 her maintenance, or if he sends her away, he is liable for her necessaries, 
 and he sends credit with her to that extent. But if the wife elope, though 
 it be not with an adulterer, he is not chargeable even for necessaries. The 
 very fact of elopement and separation, is sufficient to put persons on 
 inquiry, and whoever gives tke wife credit afterwards, gives it at his peril. 
 The husband is not liable unless he receives his wife back again. The 
 duties of the wife, while cohabiting with the husband, form the considera- 
 tion of his liability. He is, accordingly, bound to provide for her in his 
 family ; and while he is not guilty of cruelty, and is willing to provide her 
 a home, and all reasonable necessaries there, he is not bound to furnish 
 them elsewhere. 
 
 23. What is the rule where the wife elopes, and repents and returns 
 again, and her husband refuses to receive her ? 147 
 
 That he is bound for her necessaries ; but it does not apply where the 
 wife had committed adultery. If a man turns away his wife without jus- 
 tifiable cause, he is bound by her contracts for necessaries suitable to her 
 degree and estate. If they live together, he is bound only by her con- 
 tracts made with his assent, which may be presumed. If the wife goes 
 beyond what is reasonable and prudent, the tradesman trusts her at his 
 peril.
 
 80 KENT'S COMMENTARIES, [VOL. n. 
 
 24. How far is the husband liable for the torts and frauds of the wife 
 committed during the coverture 1 149 
 
 If committed in his company, or by his order, he alone is liable. If 
 not, they are jointly liable, and the wife must be joined in the suit with 
 her husband. Where the remedy for the tort is only by damages by suit, 
 or fine, the husband is liable with the wife ; but if the remedy be sought 
 by imprisonment, on execution, the husband is alone liable to imprison- 
 ment. The wife, during coverture, cannot be taken on a ca. sa., for her 
 debt dum sola, without her husband ; and if he escapes, or is not taken, the 
 court will not let her lie in prison alone. If the tort or offence be pun- 
 ished criminally, by imprisonment, or other corporal punishment, the wife 
 alone is to be punished, unless there be evidence of coercion, from the 
 fact, that the offence was committed in the presence, or by the command 
 of the husband. This indulgence is extended so far as to excuse the wife 
 from punishment for theft committed in the presence, or by the command 
 of her husband. 
 
 25. What are the exceptions to the general rule of law, that the wife 
 is incompetent to contract ? 150 
 
 First, a wife in England, and those states in this country where fines 
 exist, may pass her freehold estate by a fine, and this and a common re- 
 covery, were the only ways in which she could, at common law, convey 
 her real estate. She may, by a fine, and a declaration of the uses there- 
 of, declare a use for her husband's benefit. So, if the husband and wife 
 levy a fine, a declaration of the uses by the husband alone, will bind the 
 wife and her heirs, unless she disagrees to the uses during the coverture. 
 If the wife levy a fine as a. feme sole, without her husband, though it will 
 be good as against her and her heirs, the husband may avoid it during cov- 
 erture, for the benefit of the wife, as well as for himself. The wife, may, 
 as an attorney to another, convey an estate in the same manner as her 
 principal could, and she may execute a po.wer simply collateral, and, in 
 some cases, a power coupled with an interest, without the concurrence of 
 her husband. She may also transfer a trust estate, by lease and release, 
 as a. feme sole. The general rule of our American law is, that the wife 
 may convey by deed ; that she must be privately examined ; that the hus- 
 band must show his concurrence to the wife's conveyance by becoming a 
 party ; and that the cases in which her deed without such concurrence is 
 valid, are to be exceptions to the general rule. 
 
 Second, If the husband was banished, or had abjured the realm, it was 
 an ancient and another necessary exception to the general rule of the 
 wife's disability to contract, and if the husband be an alien living abroad, 
 the reason of the exception also applies. 
 
 26. How is the rule of law, that a woman cannot hold personal prop- 
 erty, independent of her husband, taken in equity ? 162 
 
 It is not received in equity, and a married woman may, through the 
 medium of a trustee, enjoy property as freely as a. feme sole ; and it is not
 
 LEG. XXVIII.] REDUCED TO QUESTIONS AND ANSWERS. 81 
 
 unusual to convey or bequeath property to a trustee in trust, to pay the in- 
 terest or income thereof to the wife to her separate use, free from the 
 debts of her husband, and payable upon her separate order or receipt. In 
 such case, the husband has no interest in the property. It is not neces- 
 sary that the trustee should be a stranger. The husband himself may be 
 trustee. Gifts from the husband to the wife may be supported, as her 
 separate property, if they be not prejudicial to creditors, even without the 
 intervention of trustees. She may institute a suit by her next friend, 
 against him, and she may obtain an order to defend separately, suits 
 against her. 
 
 27. What are the cases in which equity allows a wife to institute a suit 
 against her husband ? 164 
 
 When any thing is given to her for her separate use, or her husband 
 refuses to perform marriage articles, or articles for a separate maintenance ; 
 or where the wife, being deserted by her husband, hath acquired by her 
 labour a separate property, of which he hath plundered her. The acqui- 
 sitions of the wife, in such a case, are her separate property. 
 
 28. What is the rule as to the obligation of the wife to perform her 
 covenant or warranty 1 168 
 
 That, though the wife may convey her estate by deed, she will not 
 be bound by a covenant to levy a fine, or convey her estate. The agree- 
 ment of a feme covert, with the assent of her husband, to sell her estate, 
 is absolutely void at law, and the courts of equity never enforce such a 
 contract against her. 
 
 29. What is the rule with respect to antenuptial agreements ? 172 
 
 That equity will grant its aid, and enforce a specific performance of 
 them, provided the agreement be fair and valid, and the intention of the 
 parties consistent with the principles and policies of the law. Equity will 
 execute covenants in marriage articles at the instance of any person who 
 is within the influence of the marriage consideration, and in favour of 
 collateral relations. 
 
 Settlements after marriage, if made in pursuance of an agreement in 
 writing entered irrto prior to the marriage, are valid, both against purcha- 
 sers and creditors. The marriage is, of itself, a valuable consideration for 
 the agreement, and sufficient to give validity to the settlement. Chancery 
 will not carry into execution articles of agreement between husband and 
 wife. The married parties have no power to vary the rights and duties 
 'growing out of the marriage contract, or to effect at their pleasure a partial 
 dissolution of the contract. 
 
 30. What is the rule, as to the right of the husband or wife, to be a wit- 
 ness for or against each other ? 178 
 
 It is a settled principle of law, founded upon public policy, that the 
 husband and wife cannot be witnesses, neither for nor against each other. 
 11 

 
 82 KENT'S COMMENTARIES, [VOL. n 
 
 Nor can either of them be permitted to give any testimony either in a civil 
 or criminal cases, which goes to criminate the other ; and the rule is so 
 inviolable, that no consent will authorize the breach of it. But where the 
 wife acts as her husband's agent, her declarations have been. admitted in 
 evidence to charge him. Dying declarations of the wife have been ad- 
 mitted in a civil suit against her husband. 
 
 29. What authority may the husband exercise over the person of his 
 
 wife? 181 
 
 As he is guardian of the wife, and is bound to protect and maintain her, 
 the law has given him a reasonable superiority and control over her person, 
 and he may even put gentle restraints upon her liberty, if her conduct be 
 such as to require it. The husband is the best judge of the wants of the 
 family and the means of supplying them, and if he shifts his domicil the 
 wife is bound to follow him wherever he chooses to go. 
 
 LECTURE XXIX. 
 
 * 
 
 OF PARENT AND CHILD. 
 
 1. In what do the duties of parents to their children, as their natural 
 guardians consist ? 1 89 
 
 In maintaining and educating them during the season of infancy and 
 youth, and in making reasonable provision for their future usefulness and 
 happiness in life, by a situation suited to their habits, and a competent 
 provision for the exigencies of that situation. 
 
 2. How far is the parent bound by law to provide for the child 1 190 
 
 Until the latter is in a condition to provide for its own maintenance, 
 and the obligation extends no further than to necessary support. The 
 obligation of the father to maintain his child, ceases as soon as the child 
 comes of age, however wealthy the father may be, unless the child becomes 
 chargeable to the public as a pauper, and the statute extends only to rela- 
 tions by blood, and the husband is not liable for the expenses of the main- 
 tenance of the child of the wife by a former husband, nor for the expense 
 of the maintenance of the wife's mother ; if he takes the child to his 
 house he is liable as father. The father is entitled to the custody of the 
 persons of his children, and to the value of their labour during their mi- 
 nority. He may also maintain trespass for a tort to an infant child, provi- 
 ded he can show a loss of services, for that is the gist of the action by 
 the father.
 
 EC. XXX.] REDUCED TO QUESTIONS AND ANSWERS. 83 
 
 3. What are the duties of children to their parents ? 207 
 
 Obedience and assistance during their own minority, and gratitude 
 and reverence during the rest of their lives. 
 
 4. What where the Athenian and Roman laws on the subject of parents 
 supporting their children 1 207 
 
 They where so strict in enforcing the performance of this natural 
 duty, that they would not allow the father to disinherit the child from pas- 
 sion or prejudices, but only for substantial reasons, to be approved of by 
 a court of justice. 
 
 5. How were the duties of children to their parents enforced by the 
 Athenians 1 207 
 
 Solon ordered all persons, who refused to make due provisions for 
 their parents, to be punished with infamy ; and the same penalty was in- 
 curred for personal violence towards them. 
 
 6. How does the law consider an illegitimate child? 212 
 
 As nullius filius, or as the civil law, from the difficulty of ascertaining 
 the father, equally concluded, patrem habere non intelliguntur, he has 
 no inheritable blood. A bastard is incapable of inheriting as heir, either 
 to his putative father or his mother, or any one else, nor can he have heirs 
 but of his own body. 
 
 LECTURE XXX. 
 
 OF GUARDIAN AND WARD. 
 
 1. How many kinds of guardianship are there ? 216 
 
 There are two : one by the common law and one by the statute. 
 
 2. How many kinds of guardianship were there at the common law ? 
 
 217 
 
 Three ; viz., guardian by nature, guardian by nurture, and guardian 
 in socage. 
 
 3. Who is guardian by nature ? 218 
 The father.
 
 84 KENT'S COMMENTARIES, [VOL. n. 
 
 4. If the father died, who was the guardian? 217 
 The mother. 
 
 ' 5. How far does this guardianship extend ? 221 
 
 It extends only to the custody of the person of the child, until the 
 age of twenty-one years, and it yielded to guardianship in socage. 
 
 6. What is the extent of guardianship by nurture ? 221 
 
 It extends only to the person, and determines when the infant arrives 
 at the age of fourteen, in the case both of males and females. This guar- 
 dianship is said to apply only to younger children, who are not heirs ap- 
 parent ; and as all the children inherit equally under our laws, it would 
 seem that this species of guardianship has become obsolete. 
 
 7. What authority has the guardian in socage ? 222 
 
 He has the custody of the infant's lands, as well as his person. It 
 applies only to lands which the infant acquires by descent ; and the com- 
 mon law gave this guardianship to the next of blood to the child, to whom 
 the inheritance could not possibly descend ; and therefore, if the land de- 
 scended to the heir on the part of the father, the mother, or next relation 
 on the part of the mother, had the wardship ; and so if the land descended 
 to the heir on the part of the mother, the father, or his next of blood, had 
 the wardship. 
 
 8. When do guardians in socage cease ? 222 
 
 When the child arrives at the age of fourteen years, for he is then 
 entitled to elect his own guardian, and oust the guardian in socage, who is 
 then accountable to the heir for the rents and profits of the estate. 
 
 9. What if the infant does not elect a guardian ? 222 
 The guardian in socage continues. 
 
 10. On what are testamentory guardians founded ? 224 
 
 On the deed, or last will of the father, and they supercede the claims 
 of any other guardian. 
 
 11. Who are chancery guardians 1 226 
 
 Guardians appointed by the court of chancery, or other tribunals, 
 having jurisdiction in testamentary matters. The chancery guardian, con- 
 tinues until the majority of the infant, and is not*controlled by the election 
 of the infant when he arrives at the age of fourteen. 
 
 12. In whom does the general jurisdiction over guardians reside ? 227 
 In the court of chancery ; but they may be cited and compelled to
 
 LEC. XXX.] REDUCED TO QUESTIONS AND ANSWERS. . 85 
 
 appear, before the surrogate, but his powers in these respects are not 
 final. 
 
 13. What is the practice in chancery on the appointment of a guardian ? 
 
 227 
 
 The practice is to require a master's report approving of the person 
 and security offered. The court may, in its discretion, appoint one per- 
 son guardian of the person, and another guardian of the estate, in like 
 manner as in cases of lunatics and idots, there may be one committee of 
 the person, and another of the estate. The guardian or committee of the 
 estate, always is required to give adequate security, but the committee of 
 the person gives none. 
 
 14. What are the legal responsibilities of a guardian to his ward ? 229 
 
 His trust is one of obligation and duty, and not of speculation and 
 profit. He cannot reap any benefit from the use of his ward's money. 
 He cannot act for his own benefit in any contract, or purchase, or sale, as 
 to the subject of the trust. If he settles a debt upon beneficial terms, or 
 purchases it at a discount, the advantage is to accrue entirely to the infant's 
 benefit. He is liable to an action of account at common law, by the in- 
 fant, after he comes of age ; and the infant, while under age, may, by his 
 next friend, call the guardian to account by a bill in chancery. Every 
 guardian is bound to keep safely the personal estate of his ward, and to 
 account for the personal estate, and for the issues and profits of the real 
 estate ; and if he suffers any waste, sale or destruction of the inheritance, 
 he is liable to be removed, and to answer in treble damages. If the guar- 
 dian has been guilty of negligence in the keeping or disposition of the 
 infant's funds, whereby the estate has incurred a loss, the guardian will be 
 obliged to sustain that loss. If the guardian puts the ward's money in 
 trade, the ward will be entitled to elect to take the profits of the trade, or 
 the principal, with compound interest, to meet those profits when the guar- 
 dian will not disclose them. So, if he neglects to put the ward's money 
 at interest, but negligently suffers it to lie idle, or mingles it with his own, 
 the court will charge him with simple interest, and in cases of gross de- 
 linquency, with compound interest. These principles apply to trustees of 
 every kind.
 
 86 KENT'S COMMENTARIES, [VOL. n. 
 
 LECTURE XXXI. 
 OF INFANTS. 
 
 1. From what does the necessity of guardians result, and how long does 
 this inability continue in contemplation of law ? 232 
 
 It results from the inability of infants to take care of themselves ; 
 and it continues in contemplation of law, until the infant has attained the 
 age of twenty-one years. The age of twenty-one is the period of ma- 
 jority for both sexes, according to the English common law, and that age 
 is completed on the day preceding the anniversary of the person's birth. 
 The age of twenty-one is probably the period of absolute majority through- 
 out the United States, though female infants, in some of them, have en- 
 larged capacity to act at the age of eighteen. In Ohio, females are deemed 
 of full age in respect to contracts, at the age of eighteen. Louisiana and 
 France follow in this respect the common law period of limitation, though 
 entire majority by the civil law, as to females as well as males, was not 
 until the age of twenty-five ; and Spain and Holland follow, as to males, 
 the rule of the civil law. Nor can infants do any act to the injuiy of their 
 property, which they may not avoid, or rescind, when they arrive at full 
 age. The responsibility of infants for crimes by them committed, depends 
 less on their age, than on the extent of their discretion and capacity to 
 discern right and wrong. 
 
 2. What acts are binding on infants ? 239 
 
 Contracts for necessaries are binding upon an infant, and he may be 
 sued and charged in execution on such a contract, provided the articles 
 were necessary for him under the circumstances and condition in which 
 he was placed. 
 
 3. How is the question of necessaries governed? 239 
 
 By the real circumstances of the infant, and not by his ostensible sit- 
 uation ; and, therefore, the tradesman who trusts him is bound to make 
 due inquiry, and if the infant has been properly supplied by his friends, 
 the tradesman cannot recover. Lord Coke considers the necessaries of 
 the infant to include victuals, clothing, medical aid, and " good teaching or 
 instruction, whereby he may profit himself afterwards." 
 
 4. If the infant lives with his father, or guardian, and their care and 
 protection are duly exercised, can he bind himself even for necessaries ? 
 239 
 
 He cannot. 
 
 5. Is infancy permitted to protect fraudulent acts? 240
 
 LEG. XXXI.] REDUCED TO QUESTIONS AND ANSWERS. 87 
 
 No, it is not ; and therefore, if an infant takes an estate, and agrees 
 to pay rent, he cannot protect himself from the rent, by pretence of infan- 
 cy, after enjoying the estate, when of age. If he receives rents, he can- 
 not demand them again when of age according to the doctrine as now un- 
 derstood. If an infant pays money on his contract, and he enjoys the 
 benefit of it, and then avoids it when he comes of age. he cannot recover 
 back the consideration paid. On the other hand, if he avoids an execu- 
 ted contract when he comes of age, on the ground of infancy, he must 
 restore the consideration which he had received. The privilege of infan- 
 cy is to be used as a shield, not as a sword. He cannot have the benefit 
 of the contract on one side, without returning the equivalent on the other. 
 But there are many hard cases in which the infant cannot be held bound 
 by his contracts, though made in fraud ; for infants would lose all protec- 
 tion if they were to be bound by their contracts made by improper artifi- 
 ces, in the heedlessness of youth, before they had learned the value of 
 character, and the just obligation of moral duties. Where an infant had 
 fradulently represented himself to be of age when he gave a bond, it was 
 held that the bond was void at law. But where he obtained goods upon 
 his false and fraudulent affirmation that he was of age, though he avoided 
 payment of the price of the goods, on the plea of infancy, the vendor was 
 held entitled to reclaim the goods, as having never parted with his pro- 
 perty in them ; and it ha.s been suggested, in another case, that there 
 might be an instance of such gross and palpable fraud, committed by an 
 infant arrived at the age of discretion, as would render a release of his 
 right to land binding upon him. Infants are liable in actions arising ex 
 delicto, whether founded on positive wrongs, as trespass or assault ; or 
 constructive torts, or frauds. But the fraudulent act, to charge him, must 
 be wholly tortious ; and a matter arising excontractu, though infected with 
 fraud, cannot be changed into a tort in order to charge the infant in trover, 
 or case, by a change in the form of the action. He is liable in trover for 
 tortiously converting goods intrusted to him ; and in detinue, for goods de- 
 livered upon a special contract for a specific purpose ; and in assumpsit, 
 for money, which he has fraudulently embezzled. 
 
 6. If an infant be made a defendant in equity, at the suit of a creditor, 
 will the answer of the guardian ad litem, be binding or conclusive ? 245 
 
 No ; it will not. 
 
 7. How will such an answer in chancery pro forma, leave the plain- 
 tiff? 245 
 
 It leaves the plaintiff to prove his case, and throws the infant upon 
 the protection of the court. 
 
 8. What was the maxim of the Roman law in this respect ? 245 
 
 It was the maxim of the Roman law, that an infant was never pre- 
 sumed to have done an act to his prejudice, pupillus pati posse non intelli- 
 gitur. In decrees against an infant there is, according to the old and set- 
 tled rule of practice in chancery, a day given him when he comes of age,
 
 88 KENT'S COMMENTARIES, [VOL. n. 
 
 usually six months, to show cause against the decree, and make a better 
 defence, and he is entitled to be called in for that purpose by process of 
 subp&na. The decree in ordinary cases would be bad on the face of it, 
 and ground for a bill of review, if it omitted to give the infant a day to 
 show cause after he came of age ; though Lord Redesdale held, in Ben- 
 nett v. Hamill, that such an error in the decree would not affect a bona 
 Jlde purchase at a sale under it. But in the case of decrees for the fore- 
 closure and sale of mortgaged premises, or for the sale of lands under a 
 devise to pay debts, the infant has no day, and the sale is absolute. In the 
 case of a strict foreclosure of the mortgagor's right without a sale, the in- 
 fant has his day after he comes of age, but then he is confined to show- 
 ing errors in the decree, and cannot unravel the accounts, nor redeem. 
 
 LECTURE XXXII. 
 OF MASTER AND SERVANT. 
 
 1. What are the several kinds of persons that come within the descrip- 
 tion of servants ? 246 
 
 1. Slaves. 2. Hired servants. 3. Apprentices. 
 
 2. How, according to the Institutes of Justinian, might a person become 
 a slave ? 246 
 
 In three ways : 1. By birth when the mother was a slave. 2. By 
 captivity in war. 3. By the voluntary sale of himself as a slave, by a 
 freeman, above the age of twenty, for the purpose of sharing the price. 
 
 3. How is the relation of master and servant, of the second class 
 formed ? 258 
 
 By contract. The one is bound to render service, and the other to 
 pay a stipulated consideration. But if the servant hired for a definite pe- 
 riod, leaves the service before the end of it, without reasonable cause, or 
 is dismissed for justifiable cause, he loses his right to wages for the period 
 he has served. 
 
 4. For what cause may* servant be dismissed ? 259 
 
 Either for immoral conduct, wilful disobedience, or habitual neglect. 
 
 5. What is the rule with respect to the obligation of the master for the 
 acts and contracts of his servant ? 259
 
 LEC. XXXIII.] REDUCED TO QUESTIONS AND ANSWERS. 89 
 
 That, the master is bound by the act of his servant, either in respect 
 to contracts or injuries, when the act was done by authority of the master. 
 If the servant does an injury fraudulently, while in the immediate employ 
 of his master, the master, as well as the servant, has been held liable in 
 damages ; and he is also said to be liable if the injury proceeds from 
 negligence, or want of skill in the servant, for it is the duty of the master 
 to employ servants who are honest, skilful, and careful. 
 
 6. What is the rule as to liability of the master, if the servant employs 
 another servant to do his business ? 260 
 
 If the servant so employed, be guilty of an injury, the master is liable. 
 But to render this rule applicable, the nature of the business must be such 
 as to require the agency of subordinate persons, and then there is an im- 
 plied authority to employ such persons. A servant may justify a battery 
 in the necessary defence of his master. 
 
 7. What persons come under the description of apprentices ? 261 
 
 Persons who are bound to service for a term of years, to learn some 
 art or trade. They are the subject of statute regulations in almost, if not 
 quite, every state in the Union, or perhaps in Europe. 
 
 
 LECTURE XXXIII. 
 OF CORPORATIONS. 
 
 1. What is a corporation ? 267 
 
 A corporation is a franchise possessed by one or more individuals, 
 who subsist as a body politic, under a special denomination, and vested by 
 the policy of the law, with the capacity of perpetual succession, and of 
 acting, in several respects, however numerous the association may be, as 
 a single individual. 
 
 2. What is the object of this institution ? 267 
 
 To enable the members to act by one united will, and to continue 
 their joint powers and property in the same body, undisturbed by the 
 change of members, and without the necessity of perpetual conveyances, 
 as the rights of members pass from one individual to another. All the 
 individuals composing a corporation, and their successors, are considered 
 in law but as one moral person, capable, under an artificial form, of taking 
 and conveying property, contracting debts and duties, and of enjoying a 
 12
 
 90 KENT'S COMMENTARIES, [VOL- 11, 
 
 variety of political and civil rights. One of the peculiar properties of a 
 corporation, is the power of perpetual succession ; for, in judgment of law, 
 it is capable of idefinate duration. The rights and privileges of a corpora- 
 tion do not determine, or vary, ujon the death or change of any individual 
 members. They continue as long as the corporation endures. 
 
 3. For what purpose were corporations invented ? 268 
 
 It was chiefly for the purpose of clothing bodies of men in succession, 
 with the qualities and capacities of one single, artificial, and fictitious 
 being, that they were originally invented, and for the same convenient 
 purpose, they have been brought largely into use. 
 
 4. How far back may we trace the history of corporations ? 268 
 
 They were well known to the Roman law, and they existed from the 
 earliest periods of the Roman republic. It would appear, from a passage 
 in the Pandects, that they were copied from the laws of Solon, who per- 
 mitted private companies to institute themselves at pleasure, provided they 
 did nothing contrary to public law. But the Romans were not so indulgent 
 as the Greeks. They were very jealous of such combinations of indi- 
 viduals, and they restrained those that were not specially authorized ; and 
 every corporation was illicit that was not ordained by the decree of the 
 senate, or of the emperor. In the age of Augustus, as we are informed 
 by Suetonius, certain corporations had become nurseries of faction and 
 disorder, and that emperor interposed, as Julius Caesar had done before 
 him, and dissolved all but ancient and legal corporations. We find, also, 
 in the younger Pliny, a singular instance of the extreme jealousy indulged 
 by the Roman government of these corporations. A destructive fire in 
 Nicomedia, induced Pliny to recommend to the emperor Trajan, the insti- 
 tution, for that city, of a fire company of 150 men, (collegium fabrorum,) 
 with an assurance, than none but those of that business should be admitted 
 into it, and that the privileges granted them should be extended to no other 
 purpose. But the emperor refused the grant, and observed, that societies 
 of that sort had greatly disturbed the peace of the cities ; and that what- 
 ever name he gave them, and for whatever purpose they might be institu- 
 ted, they would not fail to be mischievous. 
 
 5. How are the powers and capacities of corporations considered under 
 the English law ? 269 
 
 They very much resemble those under the civil law ; and it is evi- 
 dent, the principles applicable to corporations under the former, were 
 borrowed from the Roman law, and from the policy of the municipal 
 corporations established in Britain and the other Roman colonies, after 
 these countries had been conquered by the Roman arms. Under the latter 
 system, corporations were divided into ecclesiastical and lay, civil and 
 eleemosynary. 
 
 6. Under what disabilities were they placed ? 269
 
 LEG. XXXIII.] REDUCF.D TO QUESTIONS AND ANSWERS. 91 
 
 They could not purchase, or receive donations of land, without license, 
 nor could they alienate without just cause. They could only act by 
 attorney ; and the act of the majority bound the whole ; and they were 
 dissolved by death, surrender, or forfeiture. 
 
 7. When did corporations for the advancement of learning come into 
 use? 270 
 
 Not until about the 13th century, though they may be said to have 
 existed in an imperfect form, at a much earlier period. 
 
 8. About what time were civil or municipal corporations established in 
 Europe, for political and commercial purposes ? 271 
 
 Cities, towns, and fraternities, were invested with corporate powers 
 and privileges, and with a large share of civil and criminal jurisdiction ; 
 in the early periods of the history of modern Europe. These immunities 
 were sought after from a spirit of liberty as well as monopoly, and created 
 as barriers against feudal tyranny. They afforded protection to commerce 
 and the mechanic arts, and formed some counterpoise to the exorbitant 
 powers, and unchecked rapacity of the feudal barons. By this means, 
 order and security, trade, and the arts revived in Italy, France, Germany, 
 Flanders, and England. But although corporations were found to be very 
 beneficial in the earlier periods of modern European history, in keeping 
 alive the spirit of liberty, and in sustaining and encouraging the efforts for 
 social and intellectual improvement, their exclusive privileges have too 
 frequently served as monopolies, checking the free circulation of labour, 
 and enhancing the price of the fruits of industry. Dr. Smith does not 
 scruple to consider them, throughout Europe, as generally injurious to the 
 freedom of trade, and the progress of improvement. 
 
 9. How are corporations divided in the United States ? 273 
 Into aggregate and sole. 
 
 10. What is a corporation sole ? 273 
 
 It consists of a single person, who is made a body corporate and 
 politic, in order to give him some legal capacities and advantages, and 
 especially that of perpetuity, which, as a natural person, he cannot have. 
 A bishop, dean, parson, and vicar, are given in the English books, as in- 
 stances of sole corporations. 
 
 11. What are corporations aggregate? 274 
 
 The union of two or more individuals in a body politic, with capacity 
 of succession and perpetuity. 
 
 12. What kind of corporations are most in use ? 274 
 Aggregate corporations are most in use with us.
 
 92 KENT'S COMMENTARIES, [VOL. n. 
 
 13. What is meant by ecclesiastical corporations 1 274 
 
 They are those of which the members are spiritual persons, and the 
 object of the institution is also spiritual. With us, they are called religious 
 corporations. 
 
 14. How are lay corporations divided? 274 
 Into eleemosynary and civil. 
 
 15. What is an eleemosynary corporation ? 274 
 
 It is a private charity, constituted for the perpetual distribution of 
 alms. In this class may be ranked, hospitals for the relief of poor, sick, 
 and impotent persons, and colleges and academies established for the pro- 
 motion of learning, and endowed with property, by public and private 
 donations. 
 
 16. How are civil corporations divided ? 275 
 Into private and public. 
 
 17. What are public corporations ? 275 
 
 Such as are created by government for political purposes, as coun- 
 ties, cities, towns, and villages. A bank created by the government, for 
 its own uses, and where the stock is exclusively owned by the government, 
 is a public corporation. So, is a hospital created and endowed by the 
 government, for general purposes. But a bank, whose stock is owned by 
 private persons, is a private corporation, though its objects and operations 
 partake of a public nature, and though the government may become a 
 partner in the association by sharing with the corporators in the stock. 
 
 18. What are the ordinary powers of a corporation ? 277 
 
 I. To have perpetual succession, and, of course, the power of elect- 
 ing members in the room of those removed by death or otherwise. 2. To 
 sue and be sued, and to grant and receive, by their corporate name. 3. 
 To purchase and hold lands and chattels. 4. To have a common seal. 
 5. To make by-laws for the government of the corporation. 6. The 
 power of a motion, or removal of members. 
 
 19. What are quasi corporations ? 278 
 
 Persons who are invested with a corporate capacity for particular 
 specified ends ; as overseers of the poor, commissioners of highways, and 
 trustees of common schools, are invested with corporate attributes sub 
 modo. 
 
 20. What is the modern doctrine respecting corporate powers 1 298 
 It is to consider corporations as having such powers as are specifi-
 
 LEC. XXXV.] REDUCED TO QUESTIONS AND ANSWERS. 93 
 
 cally granted by the act of incorporation, or as necessary for the purpose 
 of carrying into effect the powers expressly granted, and not as having any 
 other. This is the declared doctrine of the supreme court of the United 
 
 States. 
 
 LECTURE XXXIV. 
 
 OF THE HISTORY, PROGRESS, AND ABSOLUTE 
 RIGHTS OF PROPERTY. 
 
 1. What is the natural and original method of acquiring property? 
 318 
 
 Occupancy. There is no person, even in his rudest state, who does 
 not feel and acknowledge, in a greater or less degree, the justice of this 
 title. The right of property, founded upon occupancy, is suggested to the 
 human mind, by feeling and reason, prior to the influence of positive in- 
 stitutions. There have been modern theorists, who have considered sep- 
 arate and exclusive property, as the cause of injustice, and the unhappy 
 result of government and artificial institutions. But human society would 
 be in a most unnatural and miserable condition, if it were possible to be 
 instituted or reorganized upon the basis of such speculations. The sense 
 of property is graciously bestowed upon mankind, for the purpose of rous- 
 ing them from sloth, and stimulating them to action. It leads to the culti- 
 vation of the earth, the institution of government, the establishment of 
 justice, the acquisition of the comforts of life, the growth of the useful 
 arts, the spirit of commerce, the productions of taste, the erections of 
 charity, and the display of the benevolent affections. 
 
 LECTURE XXXV. 
 
 OF THE NATURE AND VARIOUS KINDS OF PERSONAL 
 
 PROPERTY. 
 
 1. Of what does personal property usually consist? 341 
 
 It usually consists of things temporary and moveable, but it includes 
 all subjects of property not of a freehold nature, nor descendible to the 
 heirs at law.
 
 94 KENT'S COMMENTARIES, [VOL. n. 
 
 2. What is a chattel ? 342 
 
 Chattel is a very comprehensive term in our law, and includes every 
 species of property, which is not real estate, or freehold. 
 
 3. What is the most leading division of personal property 1 342 
 Into chattels real, and personal. 
 
 4. What are chattels real ? 342 
 
 Chattels real, concern the reality, as a lease for years of land ; and 
 the duration of the term of the lease is immaterial, provided it be fixed 
 and determinate, and there be a reversion or remainder in fee in some 
 other person. 
 
 5. How is property in chattels personal, divided ? 347 
 Into absolute and qualified. 
 
 6. What does absolute property in a thing denote ? 347 
 
 Full and absolute dominion over it. Qualified property denotes a 
 special interest, liable to be totally divested on the happening of some par- 
 ticular event. 
 
 7. In what may a qualified property subsist ? 347 
 
 It may subsist by reason of the nature of the thing or chattel 
 possessed, or from the nature of the title by which it is held. The 
 elements of air, light, and water, are the subjects of qualified property by 
 occupancy. Animals ferae nature, so long as they are reclaimed by the 
 art and power of man, are the subjects of qualified property ; but when 
 they return to their natural liberty and ferocity, without the animus rever- 
 tendi, the property in them ceases. A qualified property in goods subsists 
 by reason of the title, when they are bailed, pledged, or distrained. Per- 
 sonal property may be held by two or more persons in joint tenancy, or in 
 common ; and, in the former case, the same principle of survivorship ap- 
 plies which exists in the case of a joint tenancy in lands. 
 
 8. What are things in action ? 351 
 
 They are personal rights not reduced to possession, but recoverable 
 by suit at law. Money due on bond, note, or other contract, damages due for 
 breach of covenant, for the detention of chattels, or for torts, are included 
 under this general head or title to things in action. 
 
 9. May chattels be limited over by way of remainder after a life inter- 
 est in thenrns created ? 352 
 
 Yes ; but not after a gift of the absolute property. The limitation 
 may be either by will or deed.
 
 LEC. XXXVI.] REDUCED TO QUESTIONS AND ANSWERS. 95 
 
 LECTURE XXXVI. 
 
 OF TITLE TO PERSONAL PROPERTY, BY ORIGINAL 
 ACQUISITION. 
 
 1. What is the modern rule as to the original acquisition of goods by 
 occupancy ? 356 
 
 The title by occupancy is becoming almost extinct, under civilized 
 governments, and it is permitted to exist only in those few special cases, 
 in which it may be consistent with public welfare. Such as in case of 
 goods casually lost by the owner, and unreclaimed or designedly abandoned 
 by him. 
 
 2. What is the rule as to the acquisition of property by accession ? 
 360 
 
 That property in goods and chattels may be acquired by accession ; 
 and under that head is also included the acquisition of property proceeding 
 from the admixture or confusion of goods. 
 
 3. How is the right of accession defined in the French civil code ? 
 360 
 
 It is defined to be the right to all which one's own property produces, 
 whether that property be moveable or immoveable, and the right to that 
 which is united to it by accession, either naturally or artificially. The 
 fruits of the earth, produced naturally, or by human industry, the increase 
 of animals, and the new species of articles made by one person out of 
 the materials of another, are all embraced in this definition ; as if a person 
 hires for a limited period, a flock of sheep, or cattle, of the owner, the in- 
 crease of the flock, during the term, belongs to the usufructuary, who is 
 regarded as the temporary owner. The Roman law made a distinction as 
 to the offspring of slaves, and so does the civil code of Louisiana. 
 
 4. What is the rule in the case of the confusion of goods? 364 
 
 With respect to the case where goods of two persons are so inter- 
 mixed that they can no longer be distinguished, each of them has an equal 
 interest in the subject as tenants in common, if the intermixture was by 
 consent. But if it was wilfully made without mutual consent, then the civil 
 law gave the whole to him who made the confusion, and compelled him 
 to make satisfaction in damages to the other party for what he had lost. The 
 common law, gave the entire property, without any account, to him whose 
 property was originally invaded, and its distinct character destroyed. But 
 this rule is carried no further than necessity requires. It is for the party 
 guilty of the fraud to distinguish his property satisfactorily.
 
 96 KENT'S COMMENTARIES, [VOL. n. 
 
 5. "\Yhaldescription of property is acquired by intellectual labour ? 365 
 
 Literary property, such as maps, charts, writings, and books ; and 
 mechanical inventions, consisting of useful machines or discoveries, pro- 
 duced by the joint result of intellectual and manual labour. 
 
 6. . What provisions have congress made in relation to patent rights for 
 inventions ? 366 
 
 That any person, being a citizen of the United States, and any alien, 
 who, at the time of his application, shall be a resident of the United 
 States, and who hath invented any new and useful art, machine or manu- 
 facture, or composition of matter, or any new and useful improvement on 
 the same, not known or used before the application, may apply to the se- 
 cretary of state, for a patent, for the exclusive right of making, construct- 
 ing, using, and vending, for fourteen years, his invention or discovery. 
 The applicant must make oath, or affirmation, that he believes he is the 
 true inventor or discoverer of the art, machine, or improvement ; and must 
 give a written description of his invention, and of the manner of using it, 
 or of the process of compounding the same, in full, clear, and intelligible 
 terms ; and accompany it with drawings, and references, and specimens, 
 and models, according to the nature of the case ; and cause the same to 
 be attested and filed in the secretary's office. The legal representatives 
 and devisees of a person entitled to a patent, and who dies before it is ob- 
 tained, may procure it. 
 
 7. What is provided in relation to the copy-rights of authors ? 273^ 
 
 That the authors of books, maps, charts, and musical compositions, 
 and the inventors and designers of prints, cuts, and engravings, being 
 citizens of the United States, or residents therein, are entitled to the ex- 
 clusive right of printing, reprinting, publishing, and vending them, for the 
 term of twenty-eight years, from the time of recording the title thereof; 
 and if the author, inventor, or designer, or any of them, where the work 
 was originally composed and made by more than one person, be living, 
 and a citizen of the United States, or resident therein, at the end of the. 
 term, or, being dead, shall have left a widow, or child or children, either or 
 all of them living, she or they are entitled to the same exclusive right for 
 the further term of fourteen years, on complying with the terms prescribed 
 by the act of congress. Those terms are, that the author or proprietor, 
 before publication, deposit a printed copy of the title of the book, map, 
 chart, musical composition, print, cut, or engraving, in the clerk's office of 
 the district wherein he resides, and which copy is to be recorded ; and that 
 he cause to be inserted on the title-page, or the next following, of each 
 and every edition of the book, and cause to be impressed on the face of 
 the map, chart, musical composition, print, cut, or engraving, or upon the 
 title or frontispiece of a volume of the same, the following words, " En- 
 tered according to the act of congress, in the year , by A. B., in the 
 
 clerk's office of the district court of ," (as the case may be.) He is 
 
 then, within three months after publishing the book or other work as afore- 
 said, to cause to be delivered a copy of the same to the clerk of the said
 
 LEC. XXXVII.] REDUCED TO QUESTIONS AND ANSWERS. 97 
 
 district court, who is once in every year to transmit a certified list of all 
 such records of copy-right, and the several books or other works deposited 
 as aforesaid, to the secretary of state, to be preserved in his office. The 
 violation of the copy-right thus duly secured, is guarded against by ade- 
 quate penalties and forfeitures. 
 
 On the renewal of the copy-right, the title of the work must be 
 recorded, and a copy of the work delivered to the clerk of the district, 
 and the entry of the record noticed as aforesaid at the beginning of the 
 work ; and all these regulations must be complied with, within six months 
 before the expiration of the first term. And in addition to these regula- 
 tions, the author or proprietor, must, within two months from the date of 
 the renewal, cause a copy of the record thereof to be published in one or 
 more of the public newspapers in the United States, for the space of 
 four weeks. 
 
 LECTURE XXXVII. 
 
 OF TITLE TO PERSONAL PROPERTY BY TRANSFER 
 BY ACT OF LAW. 
 
 1. In what cases may goods and chattels change owners by act of law T 
 385 
 
 In cases of forfeiture, succession, marriage, judgment, insolvency, and 
 intestacy. 
 
 2. In what case does the right to property by forfeiture, take place in 
 this country ? 385 
 
 In New York it is confined to the case of treason ; and in that case 
 continues only during the life of the person convicted, and the rights of 
 third persons, existing at the time of the commission of the treason, are 
 saved. The right, so far as it exists in this country, depends probably, 
 upon local statute law ; and the tendency of public opinion has been to 
 condemn forfeiture of property, at least in cases of felony. Forfeiture of 
 estate and corruption of blood, under the laws of the United States, and 
 including cases of treason, are abolished. 
 
 3. In what case may title to property be acquired by judgment ? 387 
 
 In case of recovery by law, in an action of trespass or trover of the 
 ralue of a specific chattel, of which the possession has been acquired by 
 tort, the title to the goods is altered by the recovery, and is transferred to 
 the defendant. 
 13
 
 98 KENT'S COMMENTARIES, [VOL. n. 
 
 4. What is the rule as to the acquisition of title by bankruptcy or in- 
 solvency ? 390 
 
 That the bankrupt's estate, as soon as an act of bankruptcy com- 
 mitted, becomes a common fund for the payment of his debts, and he loses 
 the character and power of a proprietor over it. 
 
 5. What has the constitution of the United States prescribed in relation 
 to bankruptcies ? 390 
 
 It has given to congress the power to establish uniform laws on the 
 subject of bankruptcies throughout the United States. States may enact 
 insolvent laws, provided they do not impair the obligation of contracts, nor 
 effect the rights of the citizens of other states. 
 
 6. In what case is title to property acquired by intestacy ? 403 
 
 When a person dies, leaving personal property undisposed of by will, 
 and in that case, the personal estate, after the debts are paid, is distributed 
 to the widow, and among the next of kin. 
 
 7. What is the rule of distribution of personal estate ? 420 
 
 That after the debts are paid, a just and equal distribution of what 
 remaineth clear, of the goods and personal estate of the intestate, shall 
 be made amongst the wife and children or children's children, if any there 
 be ; or otherwise to the next of kin to the intestate, in equal degree, or 
 legally representing their stocks ; that is to say, one-third part of the sur- 
 plusage to the wife of the intestate, and all the residue by equal portions, 
 to and amongst the children of the intestate, and their representatives, if 
 any of the children be dead, other than such child or children who have 
 any estate by settlement, or shall be advanced by the intestate in his life- 
 time, by portion equal to the share which shall by such distribution be 
 allotted to the other children to whom such distribution is to be made. And 
 if the portion of any child who hath had such settlement or portion, be not 
 equal to the share due to the other children by the distribution, the child so 
 advanced is to be made equal with the rest. If there be no children, or 
 their representatives, one moiety of the personal estate of the intestate, 
 goes to the widow, and the residue is to be distributed equally among the 
 next of kin. 
 
 7. How are the next of kin determined? 422 
 
 By the rule of the civil law ; and under that rule the father stands in 
 the first degree, and the grandfather and the grandson in the second ; and 
 in the collateral line, the computation is from the intestate up to the com- 
 mon ancestor of the intestate, and the person whose relationship is sought 
 after, and then down to that person. The distribution of personal property, 
 of intestates, in these United States, has undergone considerable modifi- 
 cation. In many of them, the English statute of distribution, as to per- 
 sonal property, is pretty closely followed. In a majority of the states, the
 
 LEG. XXXVIII.] REDUCED TO QUESTIONS AND ANSWERS. 99 
 
 descent of real and personal property is to the same persons and in the 
 same proportions, and the regulation is the same in substance, as the En- 
 glish statute of distributions, with the exception of the widow, as to the 
 real estate, who takes one-third for life only, as dower. 
 
 8. What is the rule where the place of the domicil of the intestate, and 
 the place of the situation of the property is different ? 429 
 
 That the disposition, succession to, and the distribution of personal 
 property, wherever situated, is governed by the law of the country of the 
 owner's or intestate's domicil. 
 
 LECTURE XXXVIII. 
 OF TITLE TO PERSONAL PROPERTY BY GIFT. 
 
 1. What two kinds of gifts are there ? 438 
 
 1. Gifts, simply so called, or gifts inter vivos. 2. Gifts causa mortis, 
 or those made in apprehension of death. Gifts inter vivos have no refer- 
 ence to the future, and go into immediate and absolute effect. Delivery 
 is essential, both at law and in equity, to the validity of a parol gift 
 of a chattel ; and it is the same whether it be a gift inter vivos, or causa 
 mortis. The subject of the gift must be certain, and there must be the 
 mutual consent or concurrent will of both parties. 
 
 2. How do gifts affect creditors ? 440 
 
 They do not affect the rights of creditors, as gifts of goods and chat- 
 tels, as well as of lands, by writing or otherwise, made with intent to delay, 
 hinder and defraud creditors, are void, as against the person to whom such 
 fraud would be prejudicial. 
 
 3- What is the rule as to the revocation of gifts ? 444 
 
 That gifts inter vivos, are irrevocable, but that gifts causa mortis, are 
 conditional and revocable.
 
 100 KENT'S COMMENTARIES, [VOL. n. 
 
 LECTURE XXXIX. 
 OF CONTRACTS. 
 
 1. What is an executory contract? 449 
 
 It is an agreement of two or more persons, upon a sufficient consider- 
 ation, to do or not to do a particular thing. 
 
 2. Into what classes are contracts divided ? 450 
 
 Into contracts under seal and not under seal. If under seal, it is de- 
 nominated a specialty, and if not under seal, an agreement by parol ; and 
 the latter includes equally verbal and written contracts not under seal. 
 The agreement conveys an interest either in possession or in action. 
 
 3. What is the distinction between a ^contract executed and a contract 
 executory ? 450 
 
 It is this, as if, for instance, one person sells and delivers goods to 
 another for a price paid, the agreement is executed, and becomes complete 
 and absolute ; but if the vendor agrees to sell and deliver at a future time, 
 and for a stipulated price, and the other party agrees to accept and pay, 
 the contract is executory, and rests in action merely. There are also ex- 
 press and implied contracts. The former exist when the parties contract 
 in express words, or by writing ; and the latter are those contracts which 
 the law raises. 
 
 4. What qualifications of the parties are essential, to render a contract 
 valid? 450 
 
 That they have sufficient understanding, and age, and freedom of will, 
 and of the exercise of it, for the given case. 
 
 5. What is the rule as regards lunatics ? 450 
 
 The contracts of lunatics are generally void, from the period at which 
 the inquisition finds the lunacy to have commenced. But the inquisition 
 is not conclusive evidence of the fact ; and the party affected by the allega- 
 tion of lunacy may gainsay it by proof, without first traversing the inqui- 
 sition. The general rule is, that sanity is to be presumed until the con- 
 trary be proved ; and when an act is sought to be avoided, on the ground 
 of mental imbecility, the proof of the fact lies upon the person who alle- 
 ges it. 
 
 6. How may intoxication affect a contract ? 252 
 
 It has been decided, that an obligation, executed by a man when de- 
 prived of the exercise of his understanding by intoxication, was voidable
 
 LEC. XXXIX.] REDUCED TO QUESTIONS AND ANSWERS. 101 
 
 by himself, though the intoxication was voluntary, and not procured through 
 the circumvention of the other party. 
 
 7. What is the rule as to a general imbecility of mind? 452 
 
 That imbecilty of mind is not sufficient to set aside a contract, when 
 there is not an essential privation of the reasoning faculties, or an incapa- 
 city of understanding and acting in the ordinary affairs of life. This in- 
 capacity is now the test of that unsoundness of mind which will avoid a 
 deed at law. Weakness of understanding may, however, be a material ; 
 circumstance in establishing an inference of unfair practice or imposition, 
 and it would naturally awaken the attention of a court of justice to every 
 unfavourable appearance in the case. Nor is a person born deaf and dumb 
 deemed absolutely non compos mentis, though by some of the ancient au- 
 thorities he was deemed incompetent to contract. 
 
 8. How are contracts made abroad, to be construed in the courts of jus- 
 tice in this country ? 454 
 
 The rule is, that a contract, valid by the law of the place where it 
 was made, is valid everywhere. The lex loci contractus controls the na- 
 ture, construction, and validity of the contract. The doctrine of the lex 
 loci is replete with subtle distinctions and embarrassing questions, which 
 have exercised the skill and learning of the earlier and most distinguished 
 civilians of the Italian, French, Dutch and German schools, in their dis- 
 cussions on highly important topics of international law. These topics were 
 almost unknown in the English courts, prior to the time of Lord Hard- 
 wicke and Lord Mansfield ; and the English lawyers seem generally to 
 have been strangers to the discussions on foreign law by the celebrated 
 jurists of continental Europe. In the works of the civilians, the appli- 
 cation of the lex loci on the one hand, and the lex fori or rei sitae on the 
 other, is made to depend on the distinction between real and personal stat- 
 utes. A personal statute is a law, ordinance, regulation or custom, the dis- 
 position of which effects the person, and clothes him with capacity or in- 
 capacity, which he does not change with every change of abode ; but 
 which, upon principles of justice and policy, he is assumed to carry with 
 him wherever he goes. Real statutes affect things as used in contradis- 
 tinction to persons ; and their operation is necessarily confined within 
 territorial limits, or ad locum rci citce. Merlin gives the following distinc- 
 tion : that the laws which regulate the condition, capacity or incapacity 
 of persons, are personal statutes ; and those which regulate the quality, 
 transmission, and disposition of property, are real statutes. The doctrine 
 in question maybe considered, 1. In its application to the obligation and 
 construction of contracts ; 2. In its application to the remedy. 1. There 
 is no doubt of the truth of the general proposition, that the laws of a 
 country have no binding force beyond its territorial limits ; and their au- 
 thority is admitted in other states, not ex proprio vigore, but ex comitate. 
 Every independent community will judge for itself, how far the comitas 
 inter communitates is to be permitted to interfere with its domestic interests 
 and policy. There are, however, certain general rules in respect to the
 
 102 KENT'S COMMENTARIES, [VOL. u. 
 
 admission of the lex loci contractus, to which we may confidently appeal, as 
 being of commanding influence in the consideration of the subject. Thus, 
 it may be laid down as the settled doctrine of public law, that personal 
 contracts are to have the same validity, interpretation, and obligatory force 
 in every other country, which they have in the country where they were 
 made. The interpretation of the contract is to be governed by the law of 
 the country where the contract was made ; but the mode of suing, and the 
 time of suing, must be governed by the law of the country where the ac- 
 tion is brought. Remedies upon contracts and their incidents are regula- 
 ted and pursued according to the law of the place where the action is in- 
 stituted, and the lex loci has no application. 
 
 9. What is a nudvm pactum ? 463 
 
 It is a contract without a consideration and not binding in law, though 
 it may be in point of conscience ; and this maxim of the common law, was 
 taken from the civil law, in which the doctrine of consideration is treated 
 with an air of scholastic subtlety. Whether the agreement be verbal or in 
 writing, it is still a nude pact, and will not support an action, if a consid- 
 eration be wanting. The rule, that a consideration is necessary to the 
 validity of a contract, applies to all contracts not under seal, with the ex- 
 ception of bills of exchange and negotiable notes, after they have been 
 negotiated and passed into the hands of an innocent endorsee. 
 
 10. What is a valuable consideration ? 465 
 
 It is one that is either a benefit to the party promising, or some trou- 
 ble or prejudice to the party to whom the promise is made. Any damage, 
 or suspension, or forbearance of right, will be suflicient to sustain the 
 promise. A mutual promise amounts to a sufficient consideration, provi- 
 ded the mutual promises be concurrent in point of time ; and in that case 
 the one promise is a good consideration for the other. But if two concur- 
 rent acts are stipulated, as delivery by one party, and payment by the other, 
 no action can be maintained by either, without showing a performance, or 
 what is equivalent to a performance, of his part of the agreement. If the 
 consideration be wholly past, and executed before the promise be made, it 
 is not sufficient, unless the consideration arose at the instance or request of 
 the party promising ; and the consideration must have been beneficial to one 
 or the other. The consideration must not only be valuable, but it must be 
 lawful, and not repugnant to law, or sound policy, or good morals. 
 
 11. What is a sale? 468 
 
 It is a contract for the transfer of property from one person to another, 
 fora valuable consideration, and three things are requisite to its validity, 
 viz. the thing sold, which is the object of the contract, the price, and the 
 consent of the contracting parties. 
 
 12. What is the rule in every sale of a chattel, if the possession be in 
 another, and there be no covenant or warranty of title ? 478 
 
 The rule of caveat emptor applies, and the party buys at his peril.
 
 LEG. XXXIX.] REDUCED TO QUESTIONS AND ANSWERS. 103 
 
 But if the seller has possession of the article, and he sells it as his 
 own, and not as the agent for another, and for a fair price, he is understood 
 to warrant the title. 
 
 13. Is the seller bound to answer for the quality or goodness of the thing 
 sold ? 478 
 
 He is not, except under special circumstances, unless he expressly 
 warranted the goods to be sound and good, or unless he hath made a frau- 
 dulent representation, or used some fraudulent concealment concerning 
 them, and which amounts to a warranty in law. 
 
 14. Is a mere false assertion of value where no warranty is intended, 
 ground of relief to a purchaser ? 485 
 
 It is not ; because the assertion is a matter of opinion, which does 
 not imply knowledge, and in which men may differ. Every person repo- 
 ses at his peril on the opinion of others, when he has an equal opportunity 
 to form and exercise his own judgment. An action will lie against a per- 
 son not interested in the property, for making a false and fraudulent repre- 
 sentation to the seller, whereby he sustained damage by trusting the pur- 
 chaser, on the credit of such misrepresentations. 
 
 15. When does the contract of sale become absolute ? 491 
 
 When the terms of the sale are agreed on, and the bargain is struck, 
 and every thing that the seller has to do with the goods is complete, with- 
 out actual payment or delivery, and the property and the risk of accident 
 to the goods, vest in the buyer. He is entitled to the goods on payment 
 or tender of the price, and not otherwise, when nothing is said at the sale 
 as to the time of delivery or payment. The payment or tender of the 
 price, is, in such cases, a condition precedent implied in the contract of 
 sale. 
 
 16. What if the purchaser becomes insolvent before the goods are de- 
 livered ? 493 
 
 The seller may retain them, even if they were sold upon credit, or if 
 he dispatched the goods to the buyer, and insolvency occurs, he has a 
 right in virtue of his original ownership, to stop them in transtu. 
 
 17. What is necessary in the first instance, to make the contract of sale 
 valid? 493 
 
 That there must be a delivery or tender of it, or payment, or tender 
 of payment, or earnest given, or a memorandum in writing, signed by the 
 party to be charged ; and if nothing of this kind takes place, it is no con- 
 tract, and the owner may dispose of the goods as he pleases. 
 
 18. What is the rule as to what amounts to a delivery of the goods, so 
 as to vest the entire property in the'vendee, without payment? 494
 
 104 KENT'S COMMENTARIES, [VOL. n 
 
 If every thing to be done on the part of the vendor be completed, a 
 delivery of part of a cargo or lot of goods, has, under certain circumstan- 
 ces, been considered a delivery of the whole, so as to vest the property. 
 To constitute a part acceptance, so as to take the case out of the statute, 
 there must have been such a dealing on the part of the purchaser, as to 
 deprive him of the right to object to the quantity of the goods, or to deprive 
 the seller of his lien. 
 
 19. Can the vendee take the goods without payment, even if an earnest 
 has been given ? 475 
 
 He cannot. 
 
 20. In what cases is a symbolical delivery sufficient to pass the pro- 
 perty ? 500 
 
 The delivery of the key of the warehouse in which goods sold are 
 deposited, or transferring them on the warehouse-man or wharfinger's 
 books to the name of the buyer, is a delivery, sufficient to transfer the 
 property. So, the delivery of the receipt of the storekeeper for the goods, 
 being the documentary evidence of the title, has been held to be construc- 
 tive delivery of the goods. There may be a symbolical delivery when 
 the thing does not admit of an actual delivery. The delivery must always 
 be according to the subject matter of the delivery, and the property must 
 be placed under the control and power of the vendee. 
 
 21. What has the statute of frauds provided in relation to certain con- 
 tracts therein mentioned ? 510 
 
 That no action should be brought to charge any executor or adminis- 
 trator, upon any special promise, to answer damages out of his'own estate ; 
 or to charge the defendant upon any special promise, to answer for the 
 debt, default or miscarriage of another person ; or to charge any person, 
 upon any agreement, made upon consideration of marriage, or upon any 
 agreement that was not to be performed in one year, unless there was some 
 memorandum, or note in writing of the agreement, signed by the party to 
 be charged, or his agent. The statute, in respect to the memorandum, 
 applied also to contracts for the sale of goods, wares, and merchandizes, 
 in cases where there was no delivery and acceptance of part, or payment 
 in part, or something earnest given. The signing of the agreement by one 
 party, is sufficient, provided he is the party sought to be charged. It is 
 sufficient, likewise, if the note or memorandum be made by a broker em- 
 ployed to effect the purchase ; and the instrument is liberally construed 
 without a scrupulous regard to forms. The signature may be made with 
 a lead pencil, according to the practice in hurried business. 
 
 22. What are the principal rights and obligations of auctioneers ? 536 
 
 An auctioneer has not only the possession of the goods which he is 
 employed to sell, but he has an interest coupled with that possession. 
 He has a special property in the goods, and a lien upon them for the char-
 
 LEG. XXXIX.] REDUCED TO QUESTIONS AND ANSWERS. 105 
 
 ges of the sale, and his commission, and the auction duty. He may sue 
 the buyer for the purchase money, and if he gives credit to the vendee, 
 and makes delivery without payment, it is at his own risk. If the auc- 
 tioneer has notice that the property he is about to sell does not belong to 
 his principal, and he sells notwithstanding the notice, he will be held re- 
 sponsible to the owner for the amount of the sale. So, if the auctioneer 
 does not disclose the name of his principal at the time of the sale, the 
 purchaser is entitled to look to him personally, for the completion of the 
 contract, and for damages for its non-performance. 
 
 23. How are auction sales considered in regard to the statute of frauds ? 
 539 
 
 The auctioneer is regarded as the agent of both parties, and lawfully 
 authorized by the purchaser, either of lands or goods, to sign the contract 
 of sale for him as the highest bidder. The writing his name as the high- 
 est bidder in the memorandum book of the sale by the auctioneer, imme- 
 diately on receiving his bid, and knocking down the hammer, is a sufficient 
 signing of the contract within the statute, so as to bind the purchaser. 
 
 24. What is meant by "the right of stoppage in transitu ?" 540 
 
 It is the right which the vendor, when he sells goods to another on 
 credit, has of resuming the possession of the goods, while they are in the 
 hands of a carrier or middle-man, in their transit to the consignee or ven- 
 dee, and before they arrive into his actual possession, or to the destination 
 which he has appointed for them, on his becoming bankrupt, or insolvent. 
 The right exists only as between the vendor and vendee. If the price be 
 paid, the vendor cannot stop or detain goods for money due on other ac- 
 counts. The right of stoppage does not proceed upon the ground of re- 
 scinding the contract, but as a case of equitable lien. It assumes its 
 existence and continuance ; and, as a consequence of that principle, the 
 vendee or his assignees, may recover the goods, on payment of the price ; 
 and the vendor may sue for and recover the price, notwithstanding he had 
 actually stopt the goods in transitu, provided he be ready to deliver them 
 upon payment. If he has been paid in part, he may stop the goods for 
 the balance due him, and the part payment only diminishes the lien pro 
 tanto, on the goods detained. 
 
 25. What will defeat the right ? 543 
 
 Actual delivery to the vendee, or circumstances which are equivalent 
 to actual delivery. There are cases in which constructive delivery will, 
 and others in which it will not, destroy the right. The delivery to a car- 
 rier or packer, to and for the use of the vendee, or to a wharfinger, is a 
 constructive delivery to the vendee ; but it is not sufficient to defeat this 
 right, even though the carrier be appointed by the vendee. The delivery 
 to the master of a general ship, or of one chartered by the consignee is 
 a delivery to the vendee or consignee, but still subject to this right of stop- 
 page. And yet if the consignee had hired the ship for a term of years, 
 14
 
 106 KENT'S COMMENTARIES, [VOL. n. 
 
 and the goods were put on board to be sent by him on a mercantile adven- 
 ture, the delivery would be absolute. If the delivery to a carrier or agent 
 of the vendee be for the purpose of conveyance to the vendee, the right 
 of stoppage continues, notwithstanding such a constructive delivery to the 
 vendee ; but if the goods be delivered to the carrier or agent for safe cus- 
 tody, or for disposal on the part of the vendee, and the middle-man is by 
 agreement converted into a special agent for the buyer, the transit or pas- 
 sage of the goods terminates, and with it the right of stoppage. So, a 
 complete delivery of part of an entire parcel or cargo, terminates the tran- 
 situs, and the vendor cannot stop the remainder. 
 
 25. What are the principal legal rules for the interpretation of contracts? 
 555 
 
 The mutual intention of the parties to the instrument, is the great and 
 sometimes the difficult object of inquiry, when the terms of it are not free 
 from ambiguity. To reach and carry that intention into effect, the law, 
 when it becomes necessary will control even the literal terms of the con- 
 tract, if they manifestly contravene the purpose. Plain aad unambiguous 
 words need no interpretation. Words are to be taken in their natural and 
 most obvious meaning, unless some good reason be assigned to show that 
 they should be understood in a different sense. If the intention be doubt- 
 ful, it is to be sought after by reference to the context, and to the nature of 
 the contract. It must be a reasonable construction, and according to the 
 subject matter, and motive. The whole instrument is to be reviewed and 
 compared in all its parts, so that every part may be made consistent and 
 effectual. If it be a mercantile case, and the instrument be not clear and 
 unequivocal, the usage of trade will enable us frequently to determine the 
 precise import of the particular terms, and the certain intention declared 
 by the use of them. Parol evidence is not admissible to supply or con- 
 tradict, enlarge or vary, the words of a written contract. Parol evidence 
 is received, when it goes, not to contradict the terms of the writing, but 
 to defeat the whole contract, as being fraudulent or illegal. Contracts are 
 to receive the sense in which the person making the promise believed the 
 other party to have accepted it. 
 
 LECTURE XL. 
 OF BAILMENT. 
 
 1. How does the commentator define bailment ? 358 
 
 To be a delivery of goods upon trust, upon a contract expressed or 
 implied, that the trust shall be duly executed, and the goods restored by 
 the bailee, as soon as the purpose of the bailment shall be answered.
 
 LEC. XL.] REDUCED TO QUESTIONS AND ANSWERS. 107 
 
 2. How many species of bailment are there, according to Sir William 
 Jones ? 558 
 
 Five ; viz. 1. Depositum, or a naked deposit without reward. 2. 
 Mandatum, or commission, which is gratuitous, and by which the manda- 
 tory undertakes to do some act about the thing bailed. 3. Commodatum, 
 or loan for use without pay, and when the thing is to be restored in 
 specie. 4. A pledge, as when a thing is bailed to a creditor as a security 
 for debt. 5. Locatio, or hiring for reward. 
 
 3. How does Justice Story subdivide the head of Locatio 1 591 
 
 Into, 1. Locatio operis faciendi, or hire of labour and services. 2. 
 Locatio custodies, or receiving goods on deposit for hire. 
 
 4. What does he include under the head of locatio custodian ? 591 
 
 Agisters of cattle, warehouse-men and wharfingers, and also forward- 
 ing men, or merchants. They are all responsible for want of good faith, 
 and of reasonable care and ordinary diligence, and not to any greater 
 extent, unless the business and duty of carriers be attached to their other 
 character. 
 
 5. How are inkeepers considered in respect to liability ? 592 
 
 They are held to be responsible to as strict and severe an extent as 
 common carriers; and the principle was taken from the Roman law, and 
 adopted into modern jurisprudence. In general an innkeeper is responsi- 
 ble for the acts of his domestics, and for thefts, and is bound to take all 
 possible care of the goods and baggage of his guests deposited in his house 
 or intrusted to the care of his family or servants. 
 
 6. Who is an inkeeper within the meaning of the law ? 596 
 
 One who keeps a house, and holds out that he will receive all travel- 
 lers and sojourners who are willing to pay a price adequate to the sort of 
 entertainment provided, and who come in a situation in which they are 
 fit to be received. But the keeper of a mere coffee house, or private 
 boarding or lodging house, is not an inkeeper in the sense of the law. 
 
 7. What are the principal rules governing the class of bailees called 
 carriers ? 597 
 
 That the carrier for hire in a particular case, and not exercising the 
 business of a common carrier, is only answerable for ordinary neglect, 
 unless he by express contract assumes the risk of a common carrier. But 
 if he be a common carrier, he is in the nature of an insurer, and is an- 
 swerable for all accidents and thefts, arid even for a loss by robbery. He 
 is answerable for all losses which do not fall within the accepted cases of 
 the act of God, or inevitable accident, without the intervention of man, 
 and public enemies.
 
 108 KENT'S COMMENTARIES, [VOL. H. 
 
 8. Who are common carriers? 598 
 
 Persons who undertake generally, and for all persons indifferently, to 
 convey goods, and deliver them at a place appointed, for hire, and with or 
 without a special agreement as to price. 
 
 9. Into what two classes are they divided ? 598 
 
 Into inland carriers by land or water, and carriers by sea ; and in the 
 aggregate are included the owners of stages, waggons, and coaches, who 
 carry goods as well as passengers for hire, waggoners, teamsters, carimen, 
 the masters and owners of ships, vessels, and all watercraft, including 
 steam vessels, and steam tow-boats, belonging to internal as well as 
 coasting and foreign navigation, lightermen and ferrymen. 
 
 10. What are the duties and obligations of coach proprietors ? 601 
 
 They do not warrant the safety of passengers in the character of 
 common carriers, and are not responsible for mere accidents to the persons 
 of passengers, but only for the want of due care. Slight fault, unskillfulness 
 or negligence, either as to the competence of the carriage, or the act of 
 driving it, may render the owner responsible in damages for an injury to 
 the passengers ; they are to be transported as safely as human foresight 
 and care will permit. The coach proprietor is not at liberty to turn away 
 passengers, if he has sufficient room and accommodation. He is bound 
 to provide competent vehicles, suitably equipped, and with careful and 
 skillful drivers. He is bound to give all reasonable facilities to the recep- 
 tion and comfort of the passengers, and to use all precautions, as far as 
 human care and foresight will go for their safety on the road. He is an- 
 swerable for the smallest negligence in himself and his servants. 
 
 LECTURE XLI- 
 OF PRINCIPAL AND AGENT. 
 
 1. On what is agency founded ? 612 
 
 Upon a contract, either express or implied, by which one of the par- 
 ties confides to the other the management of some business, to be trans- 
 acted in his name, or on his account, and by which the other assumes to 
 do the business, and render an account of it. 
 
 2. How may the authority of an agent be created ? 612
 
 LEC. XLI.] REDUCED TO QUESTIONS AND ANSWERS. 109 
 
 By deed or writing, or verbally without writing ; and for the ordina- 
 ry purposes of business and commerce, the latter is sufficient. 
 
 3. May agency be inferred without proof of any express appointment? 
 613 
 
 It may, from the relation of the parties, and the nature of the em- 
 ployment. It is sufficient that there be satisfactory evidence of the fact 
 that the principal employed the agent and that the agent undertook the 
 trust. 
 
 4. Can an agent convey real estate under an implied contract ? 613 
 
 He cannot ; to convey lands he must have an appointment in writing ; 
 and where the conveyance is required to be by deed, the authority to the 
 attorney to execute it .must be commensurate in point of solemnity, and be 
 by deed also. The agency must be antecedently given, or be subsequently 
 adopted ; and in the latter case, there must be some act of recognition. 
 
 5. Is an acquiescence in the assumed agency of another, equivalent to 
 an express authority? 614 
 
 It is when the acts of the agent are brought home to the knowledge 
 of the principal. By permitting another to hold himself out to the world 
 as his agent, the principal adopts his acts, and will be held bound to the 
 person who gives credit thereafter to the other, in the capacity of his agent. 
 When the principal is informed of what has been done, he must dissent, 
 and give notice of it in a reasonable time ; and if he does not, his assent 
 and ratification will be presumed. 
 
 6. What are the rights of an assumed agent against his principal ? 616 
 
 The Roman law would oblige a person to indemnify an assumed agent, 
 acting without authority, and without any assent or acquiescence given to 
 the act, provided it was an act necessary and useful at its commencement. 
 But the English law has never gone to that, extent ; and therefore if A. 
 owes a debt to B., and C. chooses to pay it without authority, the law will 
 not raise a promise in A. to indemnify C. ; for if it were so, it would be 
 in the power of C. to make A. his debtor nolens volens. 
 
 7. What is the English rule where there is an existing business rela- 
 tion between the parties ? 617 
 
 That if payment be made under the pressure of a situation, in which 
 one party was involved by the other's breach of faith, it will be binding on 
 the person for whose use it was made. A surety, from his relation to the 
 principal debtor, has an interest and a right to see that the debt be paid ; 
 and if he pays to relieve himself, it is his money paid to and for the use 
 of the other. 
 
 8. What is the rule as to the duty of an agent in the pursuance of his 
 authority ? 617
 
 110 KENT'S COMMENTARIES, [VOL. n. 
 
 That, if an agent be intrusted with general powers, he must act with 
 sound discretion, and he has all the implied powers within the scope of 
 the employment. A power to settle an account, implies the right to allow 
 payments already made. If he be an empowered agent for a particular 
 transaction, he is not bound to go on and do all other things connected 
 with, or arising out of the case. If his powers are special, and limited, 
 he must strictly follow them. 
 
 9. What if an agent do all he is authorized to do, and something more 1 
 618 
 
 It will be good so far as he had a right to go, and the excess only will 
 be void. As if A. authorize B. to buy an estate for him at 50 dollars per 
 acre, and he gives 51 dollars per acre, A. is not bound to pay that price ; 
 but the better opinion is, that if B. offers to pay the excess out of his own 
 pocket, A. is then bound to take the estate. This case is stated in the 
 civil law, and the most equitable conclusion among the civilians is, that 
 A. is bound to take the estate at the price he prescribed. Majori summa 
 minor inest. But a distinction is to be made according to the nature of the 
 subject. If a power be given to buy a house, with an adjoining wharf and 
 store, and the agent buys the house only, the principal would not be bound 
 to take the house, for the inducement to the purchase has failed. So, if 
 he be instructed to purchase the fee of a certain farm, and he purchase an 
 interest for life or years only, or he purchases only the undivided right of 
 a tenant in common in the farm ; in these cases the principal ought not to 
 be bound to take such a limited interest, because his object was defeated. 
 Whether the principal would, or would not be bound by an act, executed 
 in part only, depends in a measure upon the nature and object of the 
 purchase. 
 
 10. What if an agent has power to lease for 21 years, and he leases for 
 26 years? 619 
 
 The lease, in equity, would be void only for the excess, because the 
 line of distinction between the good execution of the power, and the ex- 
 cess, can be easily made. But, at law, even such a lease would not be 
 good pro tanto, or for 21 years. If, however, the agent does a different 
 business from that he was authorized to do, the principal is not bound, 
 because the agent departed from the subject matter of the instruction. 
 There is a very important distinction on this subject, of the powers of an 
 agent, between a general agent and one appointed for a special purpose. 
 The acts of a general agent, or one whom a man puts in his place to 
 transact all his business of a particular kind, will bind his principal, so 
 iong as he keeps within the general scope of his authority, though he may 
 act contrary to his private instructions ; and the rule is necessary in order 
 to prevent fraud, and encourage confidence in dealing. But an agent, 
 constituted for a particular purpose, and under a limited power, cannot bind 
 his principal if he exceeds that power. The special authority must be 
 strictly pursued. Whoever deals with an agent,* constituted for a special 
 purpose, deals at his peril, when the agent passes the precise limits of 
 his power.
 
 LEC. XLI.] REDUCED TO QUESTIONS AND ANSWERS. Ill 
 
 11. What if the servant of ahorse dealer, who sells for his master, but 
 with express instructions not to warrant as to soundness, does warrant, is 
 the master bound by the warranty ? 621 
 
 He is; because the servant, having a general power to sell, acted 
 within the general scope of his authority ; and the public cannot be sup- 
 posed to be acquainted with the private conversations between the master 
 and servant. So, if a broker, whose business it is to buy and sell goods 
 in his own name, be intrusted by a merchant with the possession and appa- 
 rent control of his goods, it is an implied authority to sell, and the princi- 
 pal will be concluded by the sale. 
 
 12. If a person intrusts his watch to a watchmaker to be repaired, and 
 he sells it, would the owner be bound by the sale 1 622 
 
 He would not. The watchmaker is not exhibited to the world as 
 owner, and credit is not given to him as such, merely because he has 
 possession of the watch. 
 
 13. What is the rule as to the right of brokers and factors, to sell on 
 credit, without a special authority for that purpose ? 622 
 
 That a factor or merchant who buys or sells upon commission, or as 
 an agent for others, for a certain allowance, may sell on credit, without 
 any special authority for that purpose. It is the well settled usage, that an 
 agent may sell in the usual way, and, consequently, he may sell upon 
 credit without incurring risk, provided he be not restrained by his instruc- 
 tions, and" does not unreasonably extend the term of credit, and provided 
 he uses due diligence to ascertain the solvency of the purchaser. But 
 the factor cannot sell on credit, in a case in which it is not the usage, as 
 the sale of stock, for instance, unless he be expressly authorized, because 
 this would be to sell in an unusual manner. Nor can he bind his princi- 
 pal to other modes of payment than a payment in money at the time of 
 sale, or on the usual credit. 
 
 14. What if the factor at the expiration of the credit given on a sale, 
 takes a note payable to himself at a future day ? 623 
 
 He makes the debt his own. He cannot bind his principal to allow 
 a set-off on the part of a purchaser. If the factor, in a case duly author- 
 ized, sells on credit, and takes a negotiable note, payable to himself, the 
 note is taken in trust for his principal, and subject to his order ; and if the 
 purchaser should become insolvent before the day of payment, the cir- 
 cumstance of the factor having taken the note in his own name, would not 
 render him personally responsible to his principal. Even if the factor 
 should guaranty the sale, and undertake to pay if the purchaser failed, or 
 should sell without disclosing his principal, the note taken by him as factor 
 would still belong to the principal, and he might wave the guaranty, and 
 claim possession of the note, or give notice to the purchaser not to pay it 
 to the factor. In such a case, if the factor should fail, the note would not 
 pass to his assignees, to the predjuflice of his principal ; and if the assig-
 
 112 KENT'S COMMENTARIES, [VOL, ii. 
 
 nees should receive payment from the vendee, they would be responsible 
 to the principal ; for the debt was not in law due them, but to the princi- 
 pal, and did not pass under the assignment. 
 
 15. What is the general doctrine on this subject ? 623 
 
 That where the principal can trace his property into the hands of an 
 agent or factor, he may follow either the identical article, or its proceeds, 
 into the possession of the factor, or his legal representatives or assignees, 
 unless they should have paid away the same in their representative char- 
 acter, before notice of the claim of the principal The same rule applies 
 to the case of a banker, who fails, possessed of his customer's property. 
 If it be distinguishable from his own, it does not pass to his creditors, but 
 may be reclaimed by the true owner, subject to the liens of the banker 
 upon it. Though payment to a factor, for goods sold by him be valid, the 
 principal may control the collection, and sue for the price in his own name, 
 or for damages for non-performance of the contract ; and it is immaterial 
 whether the agent was an auctioneer or common factor. 
 
 16. In what cases does a factor sell on credit at his own risk ? 624 
 
 When he acts under a del credere commission, for an additional pre- 
 mium, he becomes liable to his principal when the purchase money falls 
 due ; for he is substituted for the purchaser, and is bound to pay, not con- 
 ditionally, but absolutely, and in the first instance. The principal may 
 call on him without looking to the actual vendee. This is the language of 
 Grove v. Dubois, (1 Term Rep. 112,) and it seems to have been adopted 
 and followed in Leverick v. Meigs ; (1 Cowen's Rep. 645,) and yet there 
 is some difficulty and want of precision in the cases on the subject. It is 
 said, that a factor under a del credere commission, is a guarantor of the 
 sale, and that the notes which he takes from the purchaser belong 
 to his principal, equally as if he had only guarantied them. If he sells 
 under a del credere commission, he is to be considered, as between him- 
 self and the vendee, as the sole owner of the goods ; and yet he is con- 
 sidered only as surety. In some late cases in the C. B., in England, it 
 was considered to be a vexed question, whether a del credere commission 
 was a contract of guaranty merely on default of the vendee, or one 
 altogether distinct from it, and not requiring a previous resort to the pur- 
 chaser. 
 
 17. What is the rule as to the factor's right to pledge the goods of his 
 principal ? 625 
 
 That he cannot pledge them as security for his own debt, not even 
 though there be the formality of a bill of parcels and a receipt. The 
 principal may recover the goods of the pawnee ; and his ignorance that 
 the factor held the goods in the character of factor is no excuse. 
 The principal is not obliged to tender to the pawnee the balance due from 
 the principal to the factor : for the lien which the factor might have had, 
 for such balance is personal, and cannot be transferred by his tortious act.
 
 LEC. XL1.] REDUCED TO QUESTIONS AND ANSWERS. 113 
 
 Though the factor should barter the goods of his principal, yet no prop- 
 erty passess by the act, any more than in the case of pledging them, and 
 the owner may sue the innocent purchaser in trover. The doctrine that 
 the factor cannot pledge, is sustained so strictly, that it is admitted that he 
 cannot do it by endorsement and delivery of the bill of lading, any more 
 than by delivery of the goods themselves. To pledge the goods of the 
 principal, is beyond the 'scope of the factor's power ; and every attempt 
 to do it, under colour of a sale, is tortious and void. 
 
 18. What exception is there to this rule 1 62*6 
 
 The case of negotiable paper, for there possession and property go 
 together, and carry with them a disposing power. A factor may pledge 
 the negotiable paper of his principal as security for his own debt, and it 
 will bind the principal, unless he can charge the party with notice of the 
 fraud or want of title in the agent. 
 
 19. What is the rule as to the factor's right to deliver the goods of his 
 principal to a third person ? 626 
 
 That he may deliver them to a third person for his own security, 
 with notice of his lien, and as his agent, to keep possession for him. 
 Such a change of the lien does not effect the factor's right, for it is, in ef- 
 fect, a continuance of the factor's possession. So, if a factor, having 
 goods consigned to him for sale, should put them into the hands of an auc- 
 tioneer, or commission merchant connected with the auctioneer in busi- 
 ness, to be sold, the auctioneer may safely make an advance on the goods 
 for purposes connected with the sale, as part payment in advance, or in 
 anticipation of the sale, according to the ordinary usage in such cases. 
 But if the goods be put into the hands of an auctioneer to sell, and, in- 
 stead of advancing money upon them in immediate reference to the sale 
 according to usage ; the auctioneer should become a pawnbroker, and ad- 
 vance money on the goods by way of loan, and in the character of pawrior 
 instead of seller, he has no lien on the goods. In Graham v. Dyster, it 
 was decided by K. B., that though the principal drew upon his factor for 
 the amount of the consignment, and the goods were sent to the factor to 
 be dealt with according to his discretion, the factor could not pledge the 
 goods, even in that case, to raise money to meet the bills. 
 
 20. What is the rule as to the liability of an agent upon his contract as 
 agent ? 630 
 
 The general rule is, that where an agent is duly constituted, and 
 names his principal, and contracts in his name, the principal is responsi- 
 ble, and not the agent. The agent becomes personally liable only when 
 the principal is not known, or when there is no responsible principal, or 
 where the agent becomes liable by an undertaking in his own name, or 
 when he exceeds his power. If he makes the contract in behalf of his 
 principal, and discloses his name at the time, he is not personally liable, 
 not even though he should take a note for the goods sold, payable to him- 
 15
 
 114 KENT'S COMMENTARIES, [VOL. n, 
 
 self. And if an agent buys in his own name, but for the benefit of his 
 principal, and without disclosing his name, the principal is also bound as 
 well as the agent, provided the goods came to his use, or the agent acted 
 in the business intrusted to him, and according to his power. 
 
 21. What are the rules by which attorneys must execute powers? 
 631 
 
 That an attorney who executes a power, as by giving a deed, must 
 do it in the name of his principal ; for if he executes it in his own name, 
 though he describes himself to be the agent or attorney of his principal, 
 the deed is held to be void ; and the attorney is not bound, even though 
 he had no authority to execute the deed, when it appears on the face of 
 it to be the deed of the principal. But if the agent binds himself person- 
 ally, and engages expressly in his own name, he will be held responsible, 
 though he should, in the covenant, give himself the description or charac- 
 ter of agent. And though the attorney, who acts without authority, but 
 in the name of the principal, be not personally bound by the instrument 
 he executes, if it contain no covenant or promise on his part, yet there is 
 a remedy against him by special action on the case, for assuming to act 
 when he had no power. 
 
 22. What is the rule as to the owner's right to collect the proceeds of 
 goods sold by his factor ? 632 
 
 That he may command such proceeds, and is entitled to call upon the 
 buyer for payment, before the money is paid over to the factor ; and a pay- 
 ment to the factor after notice from the owner not to pay, would be a pay- 
 ment by the buyer in his own wrong, and it would not prejudice the rights 
 of the principal. If, however, the factor should sell in his own name as 
 owner, and not disclose his principal, a purchaser who dealt bona fide 
 with the factor as owner,]will be entitled to set off any claim he may have 
 against the factor, in answer to a demand of the principal. 
 
 23. What is the distinction made in the books, in regard to personal re- 
 sponsibility, between public and private agents ? 632 
 
 That if an agent, on behalf of government, makes a contract, and de- 
 scribes himself as such, he is not personally bound, even though the terms 
 of the contract be such as might, in a case of a private nature, involve 
 him in a personal obligation. 
 
 24. What is the rule as to the right of an agent to emplov a sub-agent ? 
 633 
 
 That an agent, without an express authority, has not power to employ 
 a sub-agent to do the business, without the knowledge or consent of his 
 principal. The maxim is, that delegatus non potest delegare, and the 
 agency is generally a personal trust and confidence which cannot be del- 
 egated.
 
 &EC. XLI.] REDUCED TO QUESTIONS AND ANSWERS. 115 
 
 25. What is meant by lien ? 634 
 
 The right of an agent to retain possession of property until some de- 
 mand of his be satisfied. It is created either by common law, or by the 
 usage of trade, or by the express agreement or particular usage of the 
 parties. 
 
 26. Into what classes are liens distinguished ? 634 
 
 Into general and special. A general lien, is the right to retain pro- 
 perty of another, for a general balance of accounts ; but a particular lien 
 is a right to retain it only for a charge on account of labour employed or 
 expenses bestowed upon the identical property detained. General liens 
 are looked upon with jealousy, because they encroach upon the common 
 law, and destroy the equal distribution of the debtor's estate among his 
 creditors : and the usage of any trade sufficient to establish a general lien, 
 must have been so uniform, and notorious, as to warrant the inference that 
 the party against whom the right is claimed had knowledge of it. A gen- 
 eral lien may be created by express agreement. 
 
 27. What is necessary to create a lien ? 638 
 
 Possession of the goods ; and the right does not extend to debts 
 which accrued before the character of factor commenced ; nor where the 
 goods of the principal do not, in fact, come to the factor's hands, even 
 though he may have accepted bills upon the faith of the consignment, and 
 paid part of the freight. 
 
 28. What persons have a general lien on goods in their possession 1 
 640 
 
 A factor has a general lien for the balance of his general account, 
 arising in the course of dealings between him and his principal ; and this 
 lien extends to all the goods of the principal in his hands in the character 
 of factor. The factor has a lien, also, on the price of the goods which he 
 has sold as factor, though he has parted with the possession of the goods ; 
 and he may enforce payment from the buyer to himself, in opposition to 
 his principal. This rule applies, when he becomes surety for his princi- 
 pal, or sells under a del credere commission, or is in advance for the goods 
 by actual payment. Attorneys and solicitors, as well as factors, have a 
 general lien, upon the papers of their clients in their possession, for the 
 balance of their professional accounts. Dyers have likewise a general 
 lien on the goods sent to them to dye, for the balance of a general ac- 
 count. A banker has also a general lien on all the paper securities which 
 come to his hand. So has an insurance broker. A wharfinger has also a 
 general lien. 
 
 29. By what acts may an agency cease 1 643 
 
 It may terminate by the death of the agent ; by the limitation of the 
 power to a particular period of time ; by the execution of the business
 
 116 KENT'S COMMENTARIES, [VOL- n. 
 
 which the agent was constituted to perform ; by a change in the condition 
 of the principal ; by his express revocation of the power ; and by his 
 death. The agent's trust is not transferable, either by the act of the 
 party, or by operation of law. According to the civil law, if the agent 
 had entered upon the execution of the trust in his lifetime, and left it par- 
 tially executed, but incomplete, at his death, his legal representatives 
 would be bound to complete it. An authority given for private purposes 
 to two persons, cannot be executed by the survivor, unless it be so ex- 
 pressly provided, or it be an authority coupled with an interest. 
 
 END OF VOLUME SECOND.
 
 LKC. XLII.] REDUCED TO QUESTIONS AND ANSWERS. 117 
 
 VOLUME III. 
 
 OF THE LAW CONCERNING PERSONAL 
 PROPERTY. 
 
 LECTURE XLII. 
 OF THE HISTORY OF MARITIME LAW. 
 
 1. Is the marine law a municipal, or international law? 1 
 
 It is a part of the general law of nations, and not the law of a par- 
 ticular country. The marine law of the United States is the same as 
 the marine law of Europe ; and Lord Mansfield applied to its universal 
 adoption the expressive language of Cicero, when speaking of the eternal 
 laws of justice : Nee erit alia lex Romas, alia Athaenis ; alia nunc, alia 
 posthac ; sed et omnes gentes, et omni tempore una lex et sempiterna, et im- 
 mortalis continebit. 
 
 2. What is known of the marine legislation of the ancients ? 2 
 
 There is no certain evidence that either the Phoenicians, Carthage- 
 nians, or any of the states of Greece, formed any authoritative digest of 
 naval law. Those powers were distinguished for navigation and com- 
 merce, and the Athenians in particular were very commercial, and they 
 kept up a busy intercourse with the Greek colonies in Asia Minor, and on 
 the borders of the Euxine and the Hellespont, in the islands of the ./Egean 
 sea, and in Sicily and Italy. They were probably the greatest naval 
 power in all antiquity. Themistocles had the sagacity to discern the 
 wonderful influence and controlling ascendency of naval power. It is 
 stated by Diodorus Siculus, that he persuaded the Athenians to build 
 twenty ships annually. He established the Piraeus as a great commercial 
 emporium and arsenal for Athens, and the cultivation of her naval superi- 
 ority and glory was his favourite policy ; for he held the proposition, which 
 Pompey afterwards adopted, that the people, who were masters of the sea, 
 would be masters of the world. The Athenians encouraged, by their laws, 
 navigation and trade ; and there was a particular jurisdiction at Athens for 
 the cognizance of contracts, and controversies between merchants and 
 mariners. 
 
 3. Who were the earliest people that actually created, digested, and 
 promulgated a system of marine law ? 3
 
 118 KENT'S COMMENTARIES, [VOL. in. 
 
 The Rhodians. They obtained the sovereignty of the seas about 
 nine hundred years before the Christian era, and were celebrated for their 
 naval power and discipline. Their laws concerning navigation were re- 
 ceived at Athens, and in all the islands of the ^Egean sea, and throughout 
 the coasts of the Mediterranean, as a part of the law of nations. 
 
 4. By whom was the earliest code of modern sea laws established? 9 
 
 By the republic of Amalphi, in Italy, towards the end of the eleventh 
 century. 
 
 5. What code of marine law is the oldest now extant ? 10 
 
 The Consolato del mare. This is a compilation of the usages and laws 
 of the Mediterranean powers, and is said to have been digested at Barce- 
 lona, in the Catalan tongue, during the middle ages, by order of the kings 
 of Arragon. Its origin, however, is doubtful, and the precise time of its 
 publication not known ; but it is certain that it became the common law of 
 all the commercial powers of Europe. The marine laws of Italy, Spain, 
 France, and England were greatly affected by its influence ; and it formed 
 the basis of subsequent maritime ordinances. 
 
 5. What collection is next in point of antiquity and celebrity ? 12 
 
 The laws of Oleron. They were collected and compiled in the 
 island of Oleron, on the coast of France, in or about the time of Richard 
 I. They were borrowed from the Rhodian laws, and the Consolato, with 
 alterations and additions, adapted to the trade of western Europe. 
 
 6. By whom were the laws of Wisbuy compiled? 13 
 
 By the merchants of the city of Wisbuy, in the island of Gothland, 
 in the Baltic sea, about the year 1288. They were in many points, a 
 repetition of the judgments of Oleron, and became the basis of the Han- 
 seatic league. 
 
 
 
 7. About what time was the Hanseatic league formed ? 14 
 
 This renowned association was begun at least as early as the middle 
 of the thirteenth century, and it originated with the cities of Lubec, Bre- 
 men, and Hamburgh. The free and privileged Hanse Towns became the 
 asylum of commerce, and the retreats of civilization, when the rest of 
 Europe was subjected to the iron sway of the feudal system, and the north- 
 ern seas were infested by " savage clans, and roving barbarians." Their 
 object was mutual defence against piracy by sea and pillage by land. 
 They were united by a league offensive and defensive, and with an inter- 
 community of citizenship and privileges. The association of the cities of 
 Lubeck, Brunswick, Dantzick, and Cologne, commenced in the year 1254, 
 according to Cleirac, and in 1164, according to Azuni ; and it became so 
 safe and beneficial a confederacy, that all the cities and large towns on 
 the Baltic, and on the navigable rivers of Germany, to the number of
 
 LEC. XLII.] REDUCED TO QUESTIONS AND ANSWERS. 119 
 
 eighty-one, acceded to the union. One of the means adopted by the 
 confederates to insure prosperity to their trade, and to protect them from 
 controversies with each other, was the formation of a code of maritime law. 
 
 9. At what time was the French ordinance upon commerce promul- 
 gated ? 15 
 
 In 1673, and the ordinance of the marine in 1681. This ordinance, 
 says Valin, was executed in a masterly manner. It was so comprehensive 
 in its plan, so excellent in the arrangement of its parts, so just in its deci- 
 sions, so wise in its general and particular policy, so accurate and clear 
 in its details, that it deserves to be considered as a model of a perfect 
 code of maritime jurisprudence. 
 
 10. Where is the English maritime law to be found? 18 
 
 The English nation never had any general and solemnly enacted code 
 of maritime law, resembling those which have been mentioned as belong- 
 ing to the other European nations, and promulgated by legislative authority; 
 This deficiency has been supplied, not only by several extensive private 
 compilations, but has been more eminently and more authoritatively sup- 
 plied by a series of judicial decisions, commencing about the middle of 
 the last century. Those decisions have shown, to the admiration of the 
 world, the masterly acquaintance of the English judiciary with the prin- 
 ciples and spirit of commercial policy and general jurisprudence, and they 
 have afforded undoubted proofs of the entire independence, impartiality, 
 and purity of the administration of justice. The numerous cases in the 
 books of reports which have arisen upon maritime questions, resemble 
 elementary treatises in the depth, extent, and variety of their researches. 
 The English maritime law can now be studied in the adjudged cases with 
 at least as much profit, and with vastly more pleasure, than in the dry and 
 formal didactic treatises and ordinances professedly devoted to the science, 
 
 11. Where do we find the marine law of the United States ? 19 
 
 As in England, in private treatises and judicial decisions. Our im- 
 provement has been rapid and our career illustrious, since the adoption of 
 the present constitution of the United States. There have been several 
 respectable treatises on subjects of commercial law. The decisions in 
 the federal courts, in commercial cases, have done credit to the moral and 
 intellectual character of the nation ; and the admiralty courts in particular 
 have displayed great research, and a familiar knowledge, of the principles 
 of the marine law of Europe.
 
 120 KENT'S COMMENTARIES, [VOL. in. 
 
 LECTURE XLIII. 
 OF THE LAW OF PARTNERSHIP. 
 
 1. What is a partnership ? 23 
 
 It is a contract of two or more persons, to place their money, effects, 
 labour, and skill, or some, or all of them, in lawful commerce or business, 
 and to divide the profit, and bear the loss in certain proportions. 
 
 2. What are the two leading principles of the contract ? 24 
 
 A common interest in the stock of the company, and a personal re- 
 sponsibility for the partnership engagements. 
 
 3. To what does the common interest apply ? 24 
 
 To all the partnership property, whether vested in the first instance 
 by their several contributions to the common stock, or afterwards acquired 
 in the course of the partnership business ; and that property is first liable 
 for the debts of the company ; and after they are paid, and the partnership 
 dissolved, then it is subject to a division among the members, or their 
 representatives, according to agreement. 
 
 4. What if one party advance funds, and another furnish his personal 
 services or skill, in carrying on a trade, and is to share the profits 1 24 
 
 It amounts to a partnership. But each party must engage to bring 
 into the common stock something that is valuable ; and a mutual contri- 
 bution of that which has value is of the essence of the contract. 
 
 5. Are joint possessors partners ? 25 
 
 A joint possession renders persons tenants in common, but it does 
 not, of itself, constitute them partners, and, therefore, surviving partners, 
 and the representatives of a deceased partner, are not partners, notwith- 
 standing they have a community of interest in the joint stock. There 
 must be a communion of profit to constitute a partnership, as between the 
 parties. 
 
 6. Is a joint purchase, with a view to separate and distinct sales, by 
 each person on his own account sufficient to constitute a partnership ? 
 25 
 
 It is not. 
 
 7. If several persons who had never met and contracted together as 
 partners, agree to purchase goods in the name of one of them only, and
 
 LEG. XLIII.] REDUCED TO QUESTION'S AND ANSWERS. 121 
 
 to take aliquot share of the purchase, and employ an agent for that pur- 
 pose ; do they by that act become partners, and answerable to the seller 
 in that character ? 25 
 
 They do not, provided they are not jointly concerned in the re-sale 
 of their shares, and have not permitted the agent to hold them out as 
 jointly liable with himself. The same distinction was taken in the civil 
 law : qui nolunt inter se contendere, solent per nuntium rem emcre in com- 
 mune ; quod a societate longe remotum. It has been frequently recognized 
 in this country, and may be considered as a settled rule. 
 
 8. What if the purchase be on a separate, and not on a joint account ? 
 26 
 
 If the interests of the purchasers be afterwards mingled, with a view 
 to a joint sale, a partnership exists from the time that the shares are 
 brought into a common mass. A participation in the loss or profit, or hold- 
 ing himself out to the world as a partner, so as to induce others to give 
 credit on that assurance, renders a person responsible as a partner. 
 
 9. What does a partnership necessarily imply ? 26 
 A union of two or more persons. 
 
 10. What if a single individual, for the purpose of a fictitious credit, 
 were to assume a co-partnership name I 26 
 
 The only real partnership principle that could apply to his case, would 
 be the preference to be given to creditors dealing with him under that des- 
 cription, in the distribution of his effects. But that would be inadmissible, 
 and contrary to the grounds upon which partnerships are created and sus- 
 tained ; and so the law has, in another country, been understood and de- 
 clared. Bell's Commentaries on the Law of Scotland, vol. ii. 625. 
 
 1 1 . What is the rule in relation to large unincorporated joint stock com- 
 panies ? 26 
 
 Trading upon joint stock is usually regulated by special agreement ; 
 but the established law of the land, in reference to such partnerships, is 
 the same as in ordinary cases, and every member of the company, (what- 
 ever private arrangement there may be to the contrary between the mem- 
 bers, and which is only a mischievious delusion) is liable for the debts of 
 the concern. 
 
 12. What is the rule in relation to incorporated companies ? 27 
 
 That incorporated companies, though constituted expressly for the 
 purposes of trade, are not partnerships, or joint traders, within the purview 
 of the law of partnership, and the stockholders are not personally respon- 
 sible for the company's debts or engagements, and their property is affected 
 only to the extent of their interest in the company. 
 16
 
 KENT'S COMMENTARIES, [VOL. in. 
 
 13. In what manner may the contract of partnership be formed ? 27 
 
 It need not be in writing ; for though there be no express articles of 
 co-partnership, the obligation of a partnership engagement may equally 
 be implied in the acts of the parties ; and if persons have a mutual inter- 
 est in the profits and loss of any business carried on by them, or if they 
 hold themselves out to the world as joint traders, they will be held respon- 
 sible as partners to third persons. If a person partakes of the profits, he 
 is liable for the losses. It is not necessary that every member of the com- 
 pany should, in every event, participate in the profits. It would be a valid 
 partnership, according to the civil law, if one of the members had a rea- 
 sonable expectation of profit. So, one partner may retire under an agree- 
 ment to abide his proportion of risk of loss, and take a sum in gross for 
 his share of future uncertain profits ; or he may take a gross sum as his 
 share of the presumed profits, with an agreement that the remaining part- 
 ners are to assume all the risks. 
 
 14. What is the rule as to the extent of partnership connexions ? 30 
 
 That there may be a general partnership at large, or it may be limit- 
 ed to a particular branch of business, or to one subject. There may be a 
 partnership in the goods in a particular adventure, or it may be confined to 
 the profits thereof. If two persons should draw a bill of exchange, they 
 are considered as partners in respect to that bill, though in every other 
 respect they remain distinct. 
 
 15. What is the rule governing dormant partners ? 31 
 
 That they are equally liable when discovered, as if their names had 
 appeared in the firm, and although they were unknown to be partners at 
 the time of the creation of the debt. 
 
 16. Who are nominal partners ? 32 
 
 Persons who have no actual interest in the trade, or its profits ; but 
 who become responsible as partners by voluntarily suffering their names to 
 appear to the world as partners, by which means they lend to the partner- 
 ship the sanction of their credit. There is a just and marked distinction 
 between partnership as respects the public, and as respects the parties ; 
 and a person may be held liable as a partner to third persons, although the 
 agreement does not create a partnership as between the parties themsel- 
 ves. Each individual is answerable in solido to the whole amount of the 
 debts, without reference to the proportion of his interest, or to the nature 
 of the stipulation between him and his associates. Even if it were the 
 intention of the parties that they should not be partners. This principle 
 of law inculcates good faith and ingenuous dealing, and it is now regarded 
 by the English courts as a fundamental doctrine. It has been explicitly as- 
 serted with us, and is now incorporated in the jurisprudence of this coun- 
 try. 
 
 17. What if executors in the disinterested performance of a trust, con-
 
 Z.EC. XLIII.] REDUCED TO QUESTIONS AND ANSWERS. 123 
 
 tinue the testator's share in a partnership, for the benefit of his infant chil- 
 dren ? 33 
 
 They may render themselves personally liable as dormant partners. 
 
 18. How are limited partnerships formed? 35 
 
 They consist of one or more persons jointly and severally responsi- 
 ble according to the existing laws, who are called general partners, and 
 one or more who furnish certain funds to the common stock, and whose 
 liability shall extend no further than the fund furnished, and who are 
 called special partners. The names of the special partners are not to be 
 used in the firm, nor are they to transact any business on account of the 
 partnership, or be employed for that purpose, as agents. By the civil 
 code of Louisiana, art. 2810, if the advance in commendam, i. e. (the funds 
 furnished by the special partner,) has been made to one person only, such 
 person must carry on the business in his sole name, and must not take the 
 addition, "and company." And if the partner in commendam shall take 
 any part in the business of the partnership or permit his name to be used 
 in the firm, or knowingly permit any single person to whom he has made 
 the advance, to add any words to his name or firm, that may imply that 
 he has other partners, besides the partner in commendam, when in fact he 
 has none, such partner in commendam shall be liable to all the responsibil- 
 ities of a general partner in the business for which he has made the ad- 
 vance. 
 
 19. What is the legal interest of partners in their stock in trade ? 36 
 
 They are joint tenants, but without the jus accrescendi, or right of 
 survivorship ; and this, according to Lord Coke, was part of the law 
 merchant. On the death of one partner, his representatives become ten- 
 ants in common with the survivor, and with respect to ckoses in action, 
 survivorship so far exists at law, that the remedy to reduce them into pos- 
 session vests exclusively in the survivor, for the benefit of all the parties 
 in interest. The interest of each partner in the partnership property, is 
 his share in the surplus, after the partnership accounts are settled, and all 
 just claims satisfied. 
 
 20. What is the legal interest of partners in real estate acquired with 
 partnership funds ? 37 
 
 A joint-tenancy in law, yet equity will hold it to be a tenancy in 
 common, and as forming part of the partnership fund ; and the better 
 opinion would seem to be, that equity will consider the person in whom 
 the legal estate is vested, as trustee for the whole concern, and the pro- 
 perty will be entitled to be distributed as personal estate. In Tennessee, 
 New York, and Massachusetts, it has been held, that partners purchasing 
 an estate out of the joint funds, and taking one conveyance to themselves 
 as tenants in common, would hold their undivided moieties in separate and 
 independent titles, and that the same would go, on the insolvency of the 
 firm, or death of either, to pay their respective creditors at large. 3 Hayw., 
 96. 15 Johns. Rep. 159. 11 Mass. Rep. 496
 
 KENT'S COMMENTARIES, [VOL. in. 
 
 In Virginia, such an investment has been regarded as partnership 
 stock, and subject to all the incidents of partnership property. (4 Mum- 
 ford, 316.) In Winslow v. Chifelle, (State Reports in Equity, S. Car.,) it 
 was held that lands held and used by partners, in the business of a mill, 
 was co-partnership property, and subject to be applied, like other partner- 
 ship property, to the payment of partnership debts, in preference to the 
 claims of separate creditors. The general principle now declared of the 
 English law is, that real estate acquired for the purpose of a trading con- 
 cern, is to be considered as partnership property, and to be first applied in 
 satisfaction of the demands of the partnership. (1 Russel $ Mylne, 45.) 
 It is taken to be personal estate, and retains that character as between the 
 real and personal representatives of a deceased partner. (1 Mylne & 
 Keene, 649.) In Ohio a similar rule has been declared, and that such 
 property was not subject to the dower of the widow of a deceased part- 
 ner, as against partnership debts. (1 Hammond's Ohio Rep., 535.) The 
 better opinion appears to be, that although the legal estate in freehold 
 property purchased by the partners, for the purpose of their trade, will go 
 in the course of ordinary descent without survivorship, yet the equitable 
 interest in such property, will be held to be part of the partnership stock, 
 and distributable as personal estate. (Colyer on Part., 76.) 
 
 21. How are ship-owners considered? 39 
 
 In Nicol v. Mumford, (4 Johns. Chan. Rep., 522,) it was held, that 
 ship-owners were tenants in common, and were not to be considered as 
 partners, nor liable each in solido, nor entitled to the settlement of accounts, 
 on the principle of partnership. 
 
 22. In what acts may a partner bind his firm ? 40 
 
 He can buy and sell partnership effects, and make contracts in refer- 
 ence to the business of the firm, and pay and receive, and draw and 
 endorse, and accept bills and notes. The act of one partner, though on 
 his private account, and contrary to private arrangement among themselves, 
 will bind all the parties, if made without knowledge in the other party of 
 the arrangement, and in a matter which, according to the usual course of 
 dealing, has reference to business transacted by the firm. 
 
 In all contracts concerning negotiable paper, the act of one partner 
 binds all ; and even though he signs his individual name, provided it ap- 
 pears, on the face of the paper, to be on partnership account. But if 
 a bill or note be drawn by one partner, in his own name only, and without 
 appearing to be on partnership account, the partnership is not bound by 
 the signature, even though it was made for a partnership purpose. If, 
 however, the bill be drawn by one partner in his own name, upon the firm, 
 on partnership account, the act of drawing has been held to amount, irr 
 judgment of law, to an acceptance of the bill by the drawer in behalf of 
 the firm, and to bind the firm as an accepted bill. And though the part- 
 nership be not bound at law in such a case, it is held, that equity will force 
 the payment of it, if the bill was actually drawn on partnership account.
 
 LEC. XLIII.] REDUCED TO QUESTIONS AND ANSWERS. 125 
 
 23. What is the rule with respect to the power of each partner over the 
 partnership property 1 44 
 
 It is settled, that each one, in ordinary cases, and in the absence of 
 fraud on the part of the purchaser, has the complete jus disponendi of 
 the whole partnership interests, and is considered to be the authorized 
 agent of the firm. He can sell the effects, or compound or discharge the 
 partnership debts. A like power in each partner exists in respect to pur- 
 chases on joint account ; and it is no matter with what fraudulent views 
 the goods were purchased, or to what purposes they were applied by the 
 purchasing partner, if the seller be clear of the imputation of collusion. 
 
 24. In what cases may a partner pledge the partnership effects 1 46 
 
 A partner may pledge, as well as sell, the partnership effects, in a 
 case free from collusion, if done in the usual mode of dealing, and it has 
 relation to the trade in which the partners are engaged, and when the 
 pawnee had no knowledge that the property was partnership property. 
 But this principle does not extend to part owners engaged in a particular 
 purchase ; for they are regarded as tenants in common, and no member 
 can convey to the pawnee a greater interest than he himself has in the 
 concern. If one member acts fraudulently with strangers in a matter 
 within the scope of the partnership authority, the firm is, nevertheless, 
 bound by the contract. 
 
 25. How far may a partner bind his co-partners by guaranty ? 46 
 
 It was formerly understood, that one partner might bind his co-part- 
 ners by a guaranty, or letter of credit, in the name of the firm ; and Lord 
 Eldon, in the case Ex parte Gordon, (15 Vesey, 286,) considered the point 
 too clear for argument. But a different principle seems to have been 
 adopted ; and it is now held, that one partner is not authorized to bind the 
 partnership by a guaranty of the debt of a third person, without a special 
 authority for that purpose, or one to be implied from the previous course 
 of dealing between the parties, unless the guaranty be afterwards adopted 
 by the firm. The guaranty must have reference to the regular course 
 of business transacted by the partnership, and then it will be obligatory 
 upon the company, and this is the principle upon which the distinction 
 rests. 
 
 26. In what cases may a partner bind his firm by deed ? 47 
 
 A partner can not charge the firm by deed, with a debt, even in com- 
 mercial dealings. But one partner, may, by the special authority of his 
 co-partners under seal, and if in their presence, by parol authority, execute 
 a deed for them in a transaction in which they were all concerned. The 
 more recent cases have very considerably relaxed the former strictness 
 on this subject ; and while they profess to retain the rule itself, they 
 qualify it exceedingly, in order to make it suit the exigencies of commer- 
 cial associations. An absent partner may be bound by a deed executed on
 
 KENT'S COMMENTARIES, [VOL. m. 
 
 behalf of the firm, by his co-partner, provided there be either a previous 
 parol authority, or a subsequent parol adoption of the act. 
 
 One partner may by deed execute the ordinary release of a debt be- 
 longing to the- co-partnership, and thereby bar the firm of a right it pos- 
 sessed jointly. A release by one partner, to a partnership debtor, after 
 the dissolution of the partnership, has been held to be a bar of any action 
 at law against the debtor. So, also, in bankruptcy, one partner may exe- 
 cute a deed, and do any other act requisite in proceedings in bankruptcy. 
 The acknowledgment of a debt by a single partner, during the continuance 
 of the partnership will bind the firm. ' 
 
 27. How may a partnership be dissolved ? 52 
 
 If a partnership be formed for a single purpose or transaction, it 
 ceases as soon as the business is completed. If it be for a definite period, 
 it terminates of course when the period arrives. It may be dissolved by 
 the voluntary act of the parties, or of one of them, and by the death, 
 insanity, or bankruptcy of either, and by judicial decree, or by such change 
 in the condition of one of the parties as disables him to perform his part 
 of the duty. It may also be dissolved by operation of law, by reason of 
 war between the governments to which the partners respectively belong, 
 so as to render the business carried on by the association impracticable 
 and unlawful. 
 
 28. What is the rule as to dissolution by the voluntary act of the par- 
 ties? 53 
 
 The established principle is, that, if the partnership be for an indefi- 
 nite period, any partner may withdraw at a moment's notice, when he 
 pleases, and dissolve the partnership. The civil law contains the same 
 rule on the subject. The existence of engagements with third persons 
 does not prevent the dissolution by the act of the parties, or either of them, 
 though those engagements will not be affected. But if the partners have 
 formed a partnership by articles, for a definite period, in that case it is 
 said, that it cannot be dissolved without mutual consent before the period 
 arrives. This is the assumed principal of law by Lord Eldon, in Peacock 
 v. Peacock, (16 Vesey, 56,) and in Crawshay v. Haute, (1 Swanst. Rep. 
 495.) In New York it has been held, that the voluntary assignment by one 
 partner, of all his interest in the concern, dissolved the partnership, though 
 it was stipulated in the articles, that the partnership was to continue until 
 two of the partners should demand a dissolution, and the other partners 
 wished to continue the partnership. 17 John's Rep. 525, 19 id. 538. 
 
 29. What effect has the death of a partner? 56 
 
 It is ipso facto a dissolution of the partnership, however numerous 
 the association may be. 
 
 30. What is the effect of insanity ? 58 
 
 It does not ipso facto work a dissolution of the partnership. It de- 
 pends upon circumstances under the sound discretion of the court of 
 chancery-
 
 LEG. XLIII.] REDUCED TO QUESTIONS AND ANSWERS. 127 
 
 31. What is the effect of the bankruptcy of a partner? 58 
 
 Bankruptcy or insolvency, either of the whole of the partnership, or 
 of an individual member, dissolves the partnership. A bonafide voluntary 
 assignment by a partner of all his interest in the partnership 'stock, has the 
 same effect. The dissolution takes place, and the joint tenancy is sever- 
 ed, from the time that the partner, against whom the commission issues, 
 is adjudged a bankrupt, and the dissolution relates back to the act of 
 bankruptcy. 
 
 32. What are the consequences of a dissolution of a partnership ? 62 
 
 When a partnership is actually ended by death, notice, or other ef- 
 fectual mode, no person can make use of the joint property in the way of 
 trade, or inconsistently with the purpose of settling the affairs of the part- 
 nership, and winding up the concern. The power of one partner to bind 
 the firm, ceases immediately upon its dissolution ; and the partners from 
 that time, become distinct persons, and tenants in common of the joint 
 stock. One partner cannot endorse bills and notes previously given to the 
 firm, nor accept a bill previously drawn on it, so as to bind it. A dissolu- 
 tion, is in some respects, prospective only, and either of the former partners 
 can receive payment of debts due to the firm, and give a release. On a 
 dissolution by death, the surviving partner settles the affairs of the con- 
 cern. The good will of a trade is not partnership stock. It has been 
 decided to be the right of the survivor. 
 
 
 33. What is the rule as to the payment of debts ? 65 
 
 That partnership debts must be paid out of partnership estate, and 
 private and separate debts out of the private and separate estate of the in- 
 dividual partner. If the partnership creditors cannot obtain payment out 
 of the partnership estate, they cannot resort to the private and separate 
 estate, until private and separate creditors are satisfied ; nor have the 
 creditors of the individual partners any claim upon the partnership prop- 
 erty, until all the partnership creditors are satisfied. The basis of the 
 general rule is, that the funds are to be liable on which the credit was 
 given. 
 
 34. What is the rule as to notice of the dissolution 1 66 
 
 To render the dissolution safe and effectual, there must be due notice 
 given of it to the world ; and a firm may be bound, after the dissolution of 
 the partnership, by a contract made by one partner in the usual course of 
 business, and in the name of the firm, with a person who contracted on 
 the faith of the partnership, and had no notice of the dissolution. What 
 shall be a sufficient implied notice has been a vexed question in the books. 
 A notice in one of the public and regular newspapers of the city or county 
 where the partnership business was carried on, is the usual mode of giv- 
 ing information, and may, in ordinary cases, be quite sufficient. As to 
 persons who have been previously dealing with the firm, it is requisite 
 that actual notice be brought home to the creditor, or, at least, that it be
 
 128 KENT'S COMMENTARIES, [VOL. in. 
 
 given under circumstances from which actual notice may be inferred. If 
 the facts are all found or ascertained, the reasonableness of notice may be 
 a question of law for the court, but generally it will be a mixed question 
 of law and fact. When a single partner retires from the firm, the same 
 notice is requisite, and if due notice be given, yet, if the retiring partner 
 willingly suffers his name to continue in the firm, he will still be holden. 
 A dormant partner may withdraw without giving public notice. 
 
 LECTURE XLIV. 
 OF NEGOTIABLE PAPER. 
 
 1 . What is a bill of exchange ? 74 
 
 It is a written request by one person to another, for the payment of 
 money, absolutely and all events. If A., living in New York, wishes to 
 receive $1000, which await his order in the hands of B., in London ; he 
 applies to C., going from New York to London, to pay him $1000, and 
 take his draft on B., for that sum payable at sight. 
 
 2. By what terms are the parties known in law ? 75 
 
 A., who draws the bill, is called the drawer. B., to whom it is addres- 
 sed, is called the drawee, and, on acceptance, becomes the acceptor. C., 
 to whom the bill is made payable, is called the payee. As the bill is made 
 payable to C-, or his order, he may, by endorsement, direct the bill to be ' 
 paid to D., and, in that case, C. becomes the endorser, and D., to whom 
 the bill is endorsed, is called the endorsee, or holder. 
 
 3. What is the character of a check ? 75 
 
 It is, in form and effect, a bill of exchange. It is not a direct prom- 
 ise by the drawer to pay, but it is an undertaking, on his part, that the 
 drawee shall accept and pay, and the drawer is answerable only in the 
 event of the failure of the drawee to pay. A check payable to bearer 
 passes by delivery, and the bearer may sue on it as on an inland bill of 
 exchange. 
 
 4. What are the principal requisites of a bill of exchange ? 7.5 
 
 It is not confined to any set form of words. 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 payment of 
 money. In England, negotiable paper must be for the payment of money
 
 LEG. XLIV.] REDUCED TO QUESTIONS AND ANSWERS. 129 
 
 in specie, and not in bank notes. In this country it has been held, that a 
 note payable in bank bills was a good negotiable note within the statute, 
 if confined to a species of paper universally current as cash. But the 
 doctrine of these cases has been met and denied, and I think the weight 
 of argument is against them, and in favour of the English rule. The 
 payment must not rest upon any contingency, except the failure of the 
 general personal credit of the person drawing or negotiating the bill. It 
 is not necessary that the note should be made at home. Foreign, as well 
 as inland notes are negotiable. The instrument must be made payable to 
 the payee, and to his order or assigns, or to bearer, in order to render it 
 negotiable. It must have negotiable words on its face, showing it to have 
 been the intention of the parties to give it a transferable quality. Without 
 them it is a valid instrument as between the parties, and entitled to the 
 three days of grace. The words value received though usually inserted, 
 are unnecessary. Nor is it necessary that the maker should subscribe 
 his name at the bottom of the note ; and it is sufficient if the marker's 
 name be on any part of it, as if it should run, I, A- 5., promise to pay 
 C. D., or order, one hundred dollars. A note payable to a fictitious person 
 may be sued on, by an innocent endorsee, as a note payable to bearer. 
 
 5. What are the principal rights of the holder of a bill or note 1 79 
 
 Possession is prima facie evidence of property in negotiable paper, 
 payable to bearer, or endorsed in blank, and such a bonafide holder can 
 recover upon the paper, though it came to him from a person who had sto- 
 len or robbed it from the true owner, provided he took it innocently, in 
 the course of trade, for a valuable consideration. There are but two cases 
 in which a bill or note is void in the hands of an innocent endorsee for 
 a valuable consideration; and these cases are, when the consideration in 
 the instrument is money won at play, or it be given for a usurious debt. 
 
 6. Within what time must a bill be presented for acceptance ? 82 
 
 There is no precise time fixed by law in which bills payable at sight, 
 or by a given time, must be presented to the drawee for acceptance. The 
 holder need not take the earliest opportunity. A bill payable at a given 
 time after date, need not be presented for acceptance before the day of 
 payment ; but if presented, and acceptance is refused, it is dishonoured, 
 and notice must then be given to the drawer. A bill payable sixty days 
 after sight, means sixty days after acceptance, and such a bill, as well as 
 a bill payable on demand, must be presented in a reasonable time, or the 
 holder will have to bear the loss proceeding from his default. 
 
 7. How must the acceptance be made ? 83 
 
 It may be by parol, or in writing, and general or special. Though a 
 bill comes into the hands of a person with a parol acceptance, and he 
 takes it in ignorance of such an acceptance, he may avail himself of it 
 afterwards. If the acceptance be special, it binds the acceptor sub modo, 
 and according to the acceptance. A parol promise to accept a bill already 
 17
 
 KENT'S COMMENTARIES, [ VO L. m, 
 
 drawn, or thereafter to be drawn, isbinding if the bill be taken in consid- 
 reation of promise. Every act giving credit to the bill amounts to an ac- 
 ceptance. The acceptance may be impliedly as well as expressly given. 
 It may be inferred from the act of the drawee, in keeping the bill a great 
 length of time, contrary to the usual mode of dealing. 
 
 8. What is the effect of a conditional acceptance ? 84 
 
 r* K not bom l d t0 rCCeive an ? acce P ta ce varying from the 
 terms of the bill, but if he does receive it, the acceptor is not liable for 
 more than he has undertaken. If a bill be accepted payable at a particu- 
 lar place, the holder is bound to make demand at that place. 
 
 9. What are the obligations of the acceptor of a bill ? _ 86 
 
 The acceptance renders him the principal debtor, and the drawer the 
 surety and nothing will discharge the acceptor but payment or release. 
 He is bound, though he accepted without consideration, and for the sole 
 accommodation of the drawer. Accommodation paper is now governed 
 by the same rules as other paper. These are the strict obligations of the 
 acceptor in relation to the other parties to the bill, and they do not apply 
 in all their extent as between the drawer and the party who endorses or 
 lends his name to the bill as surety for the accommodation of the drawer. 
 
 10. What is an acceptance supra protest ?87 
 
 It is where a third person, after protest for non-acceptance by the 
 drawee, intervenes, and becomes a party to the bill, in a collateral way by 
 accepting and paying the bill for the honour of the drawer, or of a par- 
 ticular endorser. 
 
 __87 What are the obli g ation s and rights of the acceptor supra protest ? 
 
 He subjects himself to the same obligations as if the bill had been 
 directed to him He has his remedy against the person for whose honour 
 he accepted, and against all the parties who stand prior to that person If 
 he takes up the bill for the honour of the endorser, he stands in the light 
 of an endorsee paying for the value of the bill, and has the same remedtes 
 to which an endorsee would be entitled against all prior parties There 
 can be no other acceptor after a general acceptance by the drawee A 
 third person may become liable on his collateral undertaking, as auaranty- 
 mg the credit of the drawee, but he will not be liable as acceptor It is 
 said, however, that when the bill has been accepted, supra protest, for the 
 honour of one party to the bill, it may, by another individual, be accepted 
 supra protest, for the honour of another. The holder is not bound to take 
 an acceptance, supra protest, but he would be bound to accept an offer to 
 pay supra protest. The protest is necessary, and should precede the 
 collateral acceptance or payment ; and if the bill, on its face, directs a 
 resort to a third person, in case of refusal by the drawee, such direction 
 becomes a part of the contract.
 
 JLEC. XLIV.] REDUCED TO QUESTIONS AND ANSWERS. 131 
 
 11. What is the rule as to the transfer of bills by endorsement ? 88 
 
 A valid transfer may be made by the payee, or his agent. In case 
 of a bill made or endorsed to a feme sole, who afterwards marries, the right 
 to endorse it belongs to her husband. So, the assignee of an insolvent 
 payee, or the executor or administrator of a deceased payee, are entitled 
 to endorse the paper. And if a bill be made payable to a mercantile 
 house consisting of several partners, an endorsement by one of them is 
 deemed the act of the firm. If the bill be made payable to A., for the use 
 of B., the legal title is in A., and he must endorse it. A bill cannot be 
 endorsed for a part only of its contents, unless the residue has been ex- 
 tinguished. 
 
 12. What is the effect of a blank endorsement 1 89 
 
 A note endorsed in blank is .like one payable to bearer, and passes 
 by delivery, and the holder may constitute himself, or any other person, 
 assignee of the bill. Even a bond payable to bearer, has been held to 
 pass by delivery, in the same manner as a bank-note payable to bearer, or 
 a bill of exchange endorsed in blank. The holder may strike out the 
 endorsement to him, though in full, and all prior endorsements in blank, 
 except the first, and charge the payee or maker. 
 
 13. How may the negotiability of a bill, originally so, be stopped ? 90 
 
 By a special endorsement by the payee, but no subsequent endorsee 
 can restrain the negotiability of the bill. The first endorser is liable to 
 every subsequent bonajlde holder, even though the bill or note be forged, 
 or fraudulently circulated. 
 
 14. What if a blank note or check be endorsed ? 90 
 
 It will bind the endorser to any sum, or time of payment, which the 
 person to whom he intrusts the paper, chooses to insert in it. This only 
 applies to the case in which the body of the instrument is left blank. 
 
 15. What is the rule where negotiable paper is taken after it is due ? 91 
 
 The presumption is against the validity of the demand, and the pur- 
 chaser takes it at his peril, and subject to every defence existing against 
 it before it was negotiated. 
 
 16. When is a note, payable on demand, deemed out of time ? 91 
 
 When the facts are ascertained, the reasonableness of time is a 
 matter of law, and every case will depend on its circumstances. Eighteen 
 months, eight months, seven months, five months, even two and a half, 
 when unexplained by circumstances, have been held an unreasonable 
 delay ; and if the demand be not made in a reasonable time by the holder, 
 the endorser is discharged.
 
 132 KENT'S COMMENTARIES, [VOL. in. 
 
 17. How must the demand for acceptance, and protest of a bill be 
 made ? 93 
 
 It is usually made by a notary, and in case of non-acceptance he 
 protests it, and this notarial protest receives credit in all courts and places 
 by the law and usages of merchants, without any auxiliary evidence; and 
 it is a requisite step, by the custom of merchants, in the case of a foreign 
 bill, and must be made promptly upon refusal. It must be made at the 
 time, in the manner, and by the persons prescribed, in the place where the 
 bill was payable. Protest of inland bills is not generally deemed neces- 
 sary. Bills drawn in one state, on persons living in another state, are to 
 be treated as foreign bills. (2 Peters' U. S. Rep. 170.) 
 
 18. What is the rale as to notice of non-acceptance \ 94 
 
 After the protest of non-acceptance, immediate notice must be given 
 to the drawer and endorser, in order to fix them, and the omission would 
 not be cured by the bill being presented for payment, and subsequent no- 
 tice of non-payment, as well as non-acceptance. The drawer or endor- 
 ser may be sued forthwith upon the protest for non-acceptance, without 
 waiting until the bill be presented for payment, and refused. 
 
 19. How must demand of payment be made ? 95 
 
 It must be made when the bill falls due, by the holder or his agent 
 upon the acceptor, at the place appointed for payment, or at his house or 
 residence, or upon him personally if no particular place be appointed, and 
 it cannot be made by letter through the post office. The general principle 
 is, that due diligence must be used to find out the party, and make demand ; 
 and the inquiry will always be, whether, under the circumstances of the 
 case, due diligence has been used. If the party has absconded, that will 
 as a general rule, excuse the demand. If he has changed his residence 
 to some other place, within the same state or jurisdiction, the holder must 
 make endeavours to find it, and make the demand there. If the person 
 at whose house the note or bill is made payable, be the holder of the pa- 
 per, it is sufficient for the holder to examine the accounts, and ascertain 
 that the party who is to pay has no funds deposited. 
 
 20. What is the effect of the addition of memoranda to a bill or note, 
 designating the place of payment? 98 
 
 There has been much litigation and difficulty in the cases. It is sta- 
 ted as a general rule, that a memorandum upon a note, as to where it should 
 be payable, was no part of it ; and in Exon v. Russell, (4 Maule $ Selw. 
 505.) such a memorandum on the bottom of a note, was held to be no part 
 of it. On the other hand, in Cowie v. Halsall, (4 Barnw. $ Aid. 197,) 
 after a bill had been accepted generally, the drawer, without the consent 
 of the acceptor, added a place of payment, and it was held, that the addi- 
 tion was a material variation, and discharged the acceptor. 
 
 21. What if a bill drawn generally, be accepted specially ? 99
 
 LEC. XLIV.] REDUCED TO QUESTIONS AND ANSWERS. 133 
 
 It is a qualified acceptance which the holder is not bound to take ; 
 but if he does take it, the demand must be made at the place appointed and 
 not elsewhere. 
 
 22. What is the rule as to the three days of grace ? 100 
 
 That they apply equally, according to the custom of merchants, to 
 foreign and inland bills and to promissory notes, and as between the en- 
 dorser and the endorsee of a negotiable note ; and the acceptor has within 
 a reasonable time of the end of business, or bank hours, of third day of 
 grace, (being the third day after the paper falls due,) to pay. The three 
 days of grace apply equally to bills payable at sight ; but a bill or note 
 payable on demand, or where no time of payment is expressed, is payable 
 immediately on presentment, and is not entitled to the three days of grace. 
 
 23. What steps are requisite to fix the drawer and endorser of a bill or 
 check? 104 
 
 The holder must not only show a demand, or due diligence to get 
 the money of the drawee of the bill or check, and of the maker of the 
 note, but he must give reasonable notice of their default to the drawer and 
 endorsers, to entitle himself to a suit against them. Notice to one of sev- 
 eral partners, or to one of several joint drawers or endorsers, is notice to 
 them all. The question of reasonable notice is usually compounded of 
 law and fact, and proper for the decision of a jury, under the advice and 
 direction of the court. 
 
 24. What is held to be reasonable notice ? 106 
 
 According to the modern doctrine, the notice must be given by the 
 first direct and regular conveyance. This means, the first mail that goes 
 after the day next to the third day of grace. Reasonable diligence and 
 attention is all that the law enacts ; and it seems to be now settled, that 
 each party into whose hands a dishonoured bill may pass, shall be allow- 
 ed one entire day for the purpose of giving notice. It is not necessary 
 to send by the public mail. The notice may be sent by a private convey- 
 ance, or special messenger, and it would be good notice, though it should 
 happen to arrive a little behind the mail. The notice, in all cases, is good, 
 if left at the dwelling-house of the party, in a way reasonably calculated 
 to bring the knowledge of it home to him ; and if the house be shut up by 
 a temporary absence, still notice may be left there. If the parties live in 
 different towns, the letter must be forwarded to the post-office nearest to 
 the party. 
 
 25. What is necessary to be expressed in the notice ? 108 
 
 It is sufficient that it state the fact of non-payment, and it is not ne- 
 necessary to state expressly, it is justly implied, that the holder looks to 
 the endorser. It is sufficient for the agent to give notice to his principal 
 of the dishonour of a bill, and it then becomes necessary for the principal
 
 134 KENT'S COMMENTARIES, [VOL. in. 
 
 \ 
 
 to give the requisite notice, with due diligence, to the parties to be fixed. 
 The drawer or endorser, to be charged on non-acceptance or non-pay- 
 ment, is entitled to call for the protest, and the identical bill, or number of 
 the set protested, before he is bound to pay. 
 
 26. In what cases is notice not required ? 110 
 
 If the drawee refuse to accept, because he has no effects of the 
 drawer in his hands, notice to the drawer is not necessary. This excep- 
 tion to the general rule, is confined strictly to want of effects and to cases 
 in which the drawer had no right to expect that his bill would be honour- 
 ed. The exception applies only to the drawer. Neither the insolvency 
 of the drawer, or drawee, or acceptor, or the fact that the drawee had ab- 
 sconded does away with the necessity of demand of payment, and notice 
 to the drawer and endorser. If a bank check be taken in the ordinary 
 course of business, it is not an absolute payment, but only the means to pro- 
 cure the money, and the holder is bound to present it for pa3 r ment with 
 ordinary diligence, and the next day will be in season. But if the bank be 
 totally prohibited, by process of law, from the exercise of its functions, 
 before the check can, with due diligence, be presented, no demand need 
 be made, or notice given ; and the holder may waive the check altogether, 
 and resort to his original demand. So, if the maker of the check has no 
 funds at the bank at the date of the check, it need not be presented for 
 payment previous to a suit upon it. 
 
 27. What if delay be given to the drawee of a bill or maker of a note ? 
 Ill 
 
 It will discharge the other parties, but the agreement for delay must 
 be one having a sufficient consideration, and binding in law upon the par- 
 ties ; mere indulgence will work no prejudice. Simply forbearing to sue 
 the acceptor, or taking collateral security from him, is no discharge ; but 
 giving him new credit and time, or accepting a composition in discharge 
 of the acceptor, will produce that result. The principal is, that the drawer 
 and endorser are in the light of sureties for the acceptor, and the holder 
 must do nothing to impair the right which they have to resort by suit to the 
 acceptor for indemnity, or which would amount to a breach of faith in him 
 towards the acceptor. 4 
 
 28. What is the above rule understood to require ? 112 
 
 That the holder shall riot so deal with the acceptor of the bill, or 
 maker of the note, by giving time, or compounding, or giving credit, as to 
 prejudice the right of the other parties to the bill, without their assent. 
 The holder may give time to an immediate endorser, and proceed against 
 the parties behind him. A prior party to a bill is not discharged by a 
 release of a subsequent party. But the holder cannot reverse this order. 
 
 29. What acts of the endorser or drawer will amount to a waver of 
 notice? 113
 
 LEG. XHV.] REDUCED TO QUESTIONS AND ANSWERS. 135 
 
 A subsequent promise to pay, or the taking of collateral security. 
 
 30. What if an endorser comes again in possession of the bill? 114 
 
 He will be regarded prima facie as the owner, and may sue and re- 
 cover, though there be on it subsequent endorsements. 
 
 31. What will discharge the acceptor? 114 
 
 Nothing short of the statute of limitations, or payment, or a release, 
 or an express declaration of the holder. He is bound, like the maker of 
 a note, as a principal debtor. His acceptance is evidence that the value 
 'of the bill was in his hands, or had been received by him from the drawer. 
 He is liable to the payee, to the drawer, and to every endorser. He is 
 liable to an innocent holder, though the drawer's hand be forged, and 
 in the suit against him it is not necessary to prove any hand but that of 
 the first endorser. 
 
 32. What is the usual course, in Europe, pursued by the holder of a 
 protested bill in order to procure indemnity? 115 
 
 The general law merchant authorizes the holder to redraw from the 
 place where the bill was payable, on the drawer or endorser, in order to 
 reimburse himself for the principal of the bill protested, the contingent 
 expenses attending it, and the new exchange which he pays. 
 
 33. What is the rule in this country ? 117 
 
 The proper rule in cases of debt payable in a foreign country, in 
 England, for instance, and sued in the United States, is to allow that sum 
 in the currency of the country which approximates most nearly to the 
 amount to which the party is entitled in the country where the debt was 
 payable, and calculated by the established par of exchange ; and in the 
 United States, the pound sterling is valued at $4,80. But the creditor is 
 also entitled to have an amount equal to what he must pay, in order to 
 remit it to the place where it was payable. He ought to have just as much 
 allowed him where he sues, as he would have had if the contract had 
 been duly performed. 
 
 34. What is a mercantile guaranty ? 121 * 
 
 It is a promise to answer for the payment of some debt or duty, in 
 case of the failure of another person, who is in the first instance liable. 
 
 35. What are the legal rules governing a mercantile guaranty? 121 
 
 The English statute of frauds, which has been adopted throughout this 
 country, requires, that " upon any special promise to answer for the debt, 
 default, or miscarriage of another person, the agreement, or some memo- 
 randum thereof, must be in writing, and signed by the party, to be charged 
 therewith, or some other person thereunto by him lawfully authorized." 
 An agreement to become a guarantor, is within the statute ; and if it be a
 
 136 KENT'S COMMENTARIES, [VOL. in. 
 
 guaranty for the subsisting debt or engagement of another person, not only 
 the engagement, but the consideration must be in writing. 
 
 36. What are the rights and duties of the respective parties to a mer- 
 cantile guaranty ? 123 
 
 The doctrine in the case of negotiable paper, as to demand and no- 
 tice, has a feeble and qualified application to the guarantor. Thus it has 
 been held, that the guarantor of a note could be discharged by the laches 
 of the holder, as by neglect to make demand of payment of the maker, 
 and to give notice of non-payment to the guarantor, provided the maker 
 was solvent when the note fell due, and became insolvent afterwards. 
 And in the case of the absolute guaranty of the payment of a note, no 
 demand or notice is requisite to fix the guarantor. a 
 
 LECTURE XLV. 
 OF THE TITLE TO MERCHANT VESSELS. 
 
 1. What are the requisites to a title to a ship ? 130 
 
 A bill of sale is the true and proper muniment of title, and one which 
 the maritime courts of all nations will look for, and, in their ordinary prac- 
 tice, require. In Scotland, a written conveyance of property in ships, has, 
 by custom, become essential; and, in England, it is made absolutely 
 necessary by statute, as to British subjects. Possession of a ship, and 
 acts of ownership, will, in this, as in other cases of property, be pre- 
 sumptive evidence of title, without the aid of documentary proof, and will 
 stand good until that presumption be destroyed by contrary proof; and 
 a sale and delivery of a ship, without a bill of sale, or instrument, will be 
 good at law, as between the parties. Upon the sale of a ship, in port, 
 delivery of possession is necessary to make the title perfect. If the buyer 
 suffers the seller to remain in possession, and act as owner, and the seller 
 should become bankrupt, the property would be liable to his creditors, and, 
 in some cases, also to judgment creditors on execution. The same rule 
 exists in the case of the mortgage of the ship ; but where a sale is by a part 
 owner, it is similar to the sale of a ship at sea, and actual delivery can 
 not take place. Delivery of the instruments of title will be sufficient, 
 unless the part owner be himself in actual possession. If the ship be 
 sold while abroad, or at sea, a delivery of the grand bill of sale, and other 
 documents, transfers the property, as in the case of the delivery of the 
 key of a warehouse.
 
 LEG. XLV.] REDUCED TO QUESTIONS AND ANSWERS. 137 
 
 2. What is understood by the grand bill of sale ? 133 
 
 The instrument whereby the ship was originally transferred from the 
 builder to the owner, or first purchaser. 
 
 3. What will constitute a person owner for the purpose of charging him 
 for necessaries and repairs ? 133 
 
 The ownership, in relation to this subject, is not determined by the 
 register, and the true question, in matters relating to repairs, is, upon whose 
 credit was the work done ? Nor is a regular bill of sale of property essen- 
 tial to exempt the former owner from responsibility for supplies furnished. 
 But where the contract of sale is made, and the possession delivered, the 
 circumstance that the naked legal title remains in the vendor for his secu- 
 rity, does not render him liable, as owner, on contracts, or for the conduct 
 of the master. 
 
 4. How is the liability of mortgagees considered? 134 
 
 It] has been a disputed question, whether the mortgagee of a ship, 
 before he takes possession, be liable to the burdens and entitled to the 
 benefits belonging to the owner. In the case of Chinney v. Blackbourne, 
 (1 H. Blacks., 117,) it was held, that the mortgagor was to be deemed 
 owner, and entitled to the freight, and liable for the repairs and other ex- 
 penses. The same decision was made by the C. B. in Jackson v. Vernon, 
 (1 H. Blacks., 114.) But Lord Kenyon, in Westerdell v. Dale, (17 Term 
 Rep., 306,) entertained a different opinion, and he considered the mortga- 
 gee, whether in or out of possession, to be entitled to freight, and bound 
 for the expenses of the ship. In Dean v. M'Ghie, (4 Bingham, 45,) it was 
 held, that on a mortgage of a ship, the accruing freight passed to the mort- 
 gagee. The weight of American authority, has been in favour of the 
 position, that a mortgagee of a ship out of possession is not liable for 
 repairs or necessaries furnished. To whom was the credit given, seems 
 to be the ground on which the question ought to stand. In a case before 
 Lord Ellenborough, in 1816, he ruled, that a mortgagee, not in posses- 
 sion, and not known to the plaintiff, was not liable for stores supplied by 
 the captain's order. (1 Starkie's Rep., 366.) 
 
 Registered ownership, is prima facie evidence of liability for repairs 
 of a ship, but it may be rebutted by showing that the credit was given 
 elsewhere. 
 
 5. In what cases is the charterer liable for supplies furnished the ship ? 
 137 
 
 The question in these cases is, whether the owner, by reason of the 
 charter party, has divested himself of the ownership pro hoc vice, and 
 whether there has been any direct contract between the parties, varying 
 the responsibility. 
 
 In Vallejo v. Wheeler, (Cowp. Rep., 143,) the court proceeded on the 
 ground, that the charterer was owner pro hac vice, inasmuch as he ap- 
 pointed the master. The question of responsibility depends upon the in- 
 18
 
 138 KENT'S COMMENTARIES, [VOL. m. 
 
 quiry, whether the lender or hirer, under a charter party, be the owner of 
 the ship for the voyage. If the general owner retains the command and 
 navigation of the ship, and contracts to carry a cargo on freight for the voy- 
 age, the charter party is a mere affreightment sounding in covenant, and 
 the freighter hires the possession, command, and navigation of the ship, 
 he becomes the owner, and is responsible for the conduct of the master 
 and mariners ; and the general owner has no lien for freight. 
 
 6. What is necessary under the registry acts in order to entitle a ves- 
 sel to the privileges of a^ United States ship ? 141 
 
 No vessel is deemed a vessel of the United States, nor entitled to 
 the privileges of one, unless registered, and wholly owned and command- 
 ed by a citizen of the United States. The American owner in whole, 
 or in part, ceases to retain his privileges as such owner, if he usally re- 
 sides iu a foreign country, during the continuance of such residence, un- 
 less he be a consul, or agent for, and a partner in some American house, 
 carrying on trade within the United States. The register is to be made 
 by the collector of the port to which the vessel belongs, or in which it 
 shall be, and founded on the oath of the owners, stating the time and 
 place where she was built, or that she was captured in war by a citizen, 
 as prize, and lawfully condemned ; and stating the owners and master, and 
 that they are citizens, and that no subject of a foreign power is, directly 
 or indirectly by way of trust, or otherwise, interested therein. Previous 
 to the rigistry, a certificate of survey is to be produced, and security giv- 
 en, that the certificate of such registry shall be solely used for the ship, 
 and shall not be sold, lent, or otherwise disposed of. If the vessel, or any 
 interest therein, be sold to a foreigner, and the vessel be within the Uni- 
 ted States, the certificate of the registry shall, within seven'days after the 
 sale, be delivered up to the collector of the district, and if the sale be 
 made when the vessel is abroad, or at sea, the certificate is to be deliver- 
 ed up within eight days after the master's arrival within the United States ; 
 and if the transfer be made to a foreigner in a foreign port, for the pur- 
 pose of evading the revenue laws of the foreign country, it works a for- 
 feiture of the vessel, unless the transfer be made known within eight 
 days after the return of the vessel, to a port in the United States, by a de- 
 livery of the certificate of registry to the collector of the port. So, if a 
 registered ship be sold, in whole or in part, while abroad, to a citizen of 
 the United States, the vessel on her first arrival, in the United States there- 
 after, shall be entitled to all the privileges of a ship of the United States, 
 provided a new certificate of registry be obtained within three days after 
 the master makes his final report upon her first arrival. If the vessel be 
 built in the United States, the ship-carpenter's certificate is requisite to ob- 
 tain the register. 
 
 7. What form is requisite in the transfer of American ships ? 143 
 
 There must be some instrument in writing in the nature of a bill of 
 sale, which shall recite at length the certificate of registry, and without it
 
 LEG. SLV.] REDUCED TO QUESTIONS AND ANSWERS. 139 
 
 the vessel is incapable of being registered anew. Upon every change of 
 master, the owner must report such change to the collector. 
 
 8. What are the rules prescribed in regard to the coasting trade ? 
 144 
 
 In order to obtain a licence to carry on the coasting trade, or fisher- 
 ies, the owner, or the ship's husband, and master, must give security to the 
 United States, that the vessel be not employed in any trade whereby the 
 revenue of the United States may be defrauded ; and the master must 
 make oath that he is a citizen, and that the license shall not be used for 
 any other vessel, or any other employment ; and if the vessel be less than 
 twenty tons burthen, and, that she wholly the property of a citizen of the 
 United States. The collector thereupon grants a license to carry on the 
 coasting trade, or fishery. Vessels engaged in such trade or business, 
 without being enrolled or licensed, or licensed only, as the case may be, 
 shall pay alien duties, if in ballast, or laden with goods the growth or 
 manufacture of the United States, and shall be forfeited if laden with any 
 articles of foreign growth or manufacture, or distilled spirits. 
 
 9. In what relation do part owners of a ship stand towards each other ? 
 151 
 
 As tenants in common. Each has his distinct, though undivided in- 
 terest ; and when one of them is appointed to manage the concerns of the 
 ship he is termed the ship's husband. 
 
 10. How is the employment of the ship regulated ? 151 
 
 If there be no certain agreement among the owners ; the Court of 
 Admiralty, authorizes a majority in value of the part owners, to employ 
 the ship upon any probable adventure, and, at the same time, takes care to 
 secure the interest of the dissenting minority. In such case, the ship 
 sails wholly at the charge and risk, and for the benefit of the majority. If 
 the part owners are equally divided in respect to the employment of the 
 ship, either party may obtain the like security from the other seeking to 
 employ her. The court may decree a sale where the parties are equally 
 divided. 
 
 11. What is the rule as to the joint responsibility of part owners! 
 156 
 
 That they are responsible in solido, as partners, for repairs and ne- 
 cessary expenses relating to the ship, and incurred on the authority of the 
 master or ship's husband. But where a ship has been duly abandoned to 
 separate insurers, they are not responsible to each other as partners, but 
 each one is answerable for the previous expenses of the ship, ratably to 
 the extent of his interest as an insurer, and no further.
 
 140 KENT'S COMMENTARIES, [VOL. HI. 
 
 LECTURE XLVI. 
 
 OF THE PERSONS EMPLOYED IN THE NAVIGATION 
 OF MERCHANT SHIPS. 
 
 1. What are the qualifications which the master should possess ? 158 
 
 He must be a person of experience and practical skill, as well as 
 deeply initiated in the theory of navigation. He must have the talent to 
 command in the midst of danger, and presence of mind to meet and sur- 
 mount extraordinary perils. He must be able to dissipate fear, to calm 
 disturbed minds, and to inspire confidence, in the breasts of all who are 
 under his charge. He must watch for the preservation of the health and 
 comfort of the crew, as well as for the preservation of the ship. It is ne- 
 cessary that he should maintain perfect order, and preserve the most exact 
 discipline, under the guidance of justice, moderation, and good sense. 
 Charged frequently with the sale of the cargo, and the re-investment of 
 the proceeds, he must be fitted to superadd the character of merchant to 
 that of commander ; and he ought to have a general knowledge of the 
 marine law, and of the rights of belligerents, and the duties of neutrals, 
 so as not to expose to unnecessary hazard the persons and property under 
 his protection. 
 
 2. What authority may the master exerise ? 161 
 
 As he is the confidential agent of the owners, he has an implied au- 
 thority to bind them, without their knowledge, by contracts relative to the 
 usual employment of the ship. He may, by charter-party, bind the ship 
 and freight: This he may do in a foreign port in the usual course of the 
 ship's employment ; and this he may also do at home, if the owner's con- 
 sent can be presumed. The ship and freight are, by the marine law, 
 bound to the performance of the contract. The master can bind the 
 owners, not only in respect to the usual employment of the ship, but in 
 respect to the means of employing her. His power relates to the carriage 
 of goods, and the supplies requisite for the ship, and he can bind the owner 
 personally as to repairs and necessaries for the ship. But the supplies 
 must appear to be reasonable, or the money advanced for the purchase of 
 them to have been wanting. The master when abroad, and in the ab- 
 sence of the owner, may hypothecate the ship, freight, and cargo, to raise 
 money requisite to complete the voyage. He may, also, if necessary, in 
 the course of the voyage, sell a part of the cargo, to enable him to carry 
 on the residue. 
 
 3. What is the law as to the master's right of lien on the ship? 165 
 
 It is settled that the master has no lien on the ship, freight, and cargo, 
 for any debt of his own, as for wages, or stores furnished, or repairs done
 
 LEC. XLV1.] REDUCED TO QUESTIONS AND ANSWERS. 141 
 
 at his expense, either at home or on the voyage. The captain is distin- 
 guished from all other persons belonging to the ship, and he is considered 
 as contracting personally with the owners, while the mate and mariners 
 contract with the master on the credit of the ship. He can hypothecate 
 and create a lien in favour of others, but he himself must stand on the 
 personal credit of his owners. The doctrine of the English law, remains 
 yet to be definitely declared and settled in this country. The case of the 
 ship Grand Turk, (1 Fame's Rep., 72,) is a decision in the Circuit Court 
 of the United States for New York, on the point, that the master's wages 
 and perquisites were no lien on the ship ; and it was also ruled in Fisher 
 v Willing, (8 Serg. <$ Rawle, 118. But, in the Circuit Court of the United 
 States, for Massachusetts, (3 Mason's Rep., 255,) the rule was laid down, 
 that the master had a lien upon the freight for all his advances and re- 
 sponsibilities abroad upon account of the ship. In Ingersoll v. Van Bok- 
 kelin, (7 Cowen, 670. 5 Wendell, 314, S. C.,) it was decided after a re- 
 view of the American authorities, that the master had a lien on the freight 
 and cargo for his necessary advances made, and responsibilities incurred, 
 in a foreign port. It is clearly the rule of the maritime law, that the 
 owner of the cargo, sold by the master for the necessaries of the ship, has 
 an implied lien upon the ,ship for his indemnity, though there be no ex- 
 press hypothecation. 
 
 4. What is the rule as to the pilotage ? 175 
 
 That it is the duty of the master engaged in a foreign trade, to put 
 his ship under the charge of a pilot, both on his outward and homeward 
 voyage, when he is within the usual limits of the pilot's employment. 
 But if the master, at a foreign port, attempts to get a pilot and fails, and 
 then, in the exercise of his best discretion, endeavours to navigate himself 
 into port, and grounds, the underwriter is not discharged, but remains liable 
 for the injury. (2 Barnw. <$f Adolph, 380.) 
 
 5. How far does the responsibilities of pilots extend ? 176 
 
 The pilot, while on board, has the exclusive control of the ship. He 
 is considered as master pro hac vice, and if any injury or loss be sustained 
 in the navigation of the vessel, while under the charge of pilot, he is an- 
 swerable, as strictiy as if he were a common carrier, for his default, neg- 
 ligence, or unskilfulness ; and the owner would also be responsible to the 
 party injured by the act of the pilot, as being the act of his agent. 
 
 6. What are the principal provisions prescribed by congress in regard 
 to seamen employed in the merchant service ? 177 
 
 That every seaman or mariner, on all voyages from the United States, 
 to a foreign port, and, in certain cases, to a port in another state, other than 
 the adjoining one, shall sign shipping articles, which are contracts in wri- 
 ting or in print, declaring the voyage and the term of time for which the 
 seaman are shipped, and when they are to render themselves on board. 
 If there be no such contract, the master is bound to pay to every seaman
 
 142 KENT'S COMMENTARIES, [VOL. in. 
 
 who performs the voyage, the highest wages given at that port for a simi- 
 lar voyage, within the three next preceding months, besides forfeiting for 
 every seaman, a penalty of twenty dollars. The seamen are made subject 
 to forfeitures if they do not render themselves on board according to the 
 contract, or if they desert the service ; and they are liable to summary 
 imprisonment for desertion, and to be detained until the ship be ready to 
 sail. If the mate and a majority of the crew, after the voyage is begun, 
 but before the vessel has left the land, deem the vessel unsafe, or not duly 
 provided, and shall require an examination of the ship, the master must 
 proceed to, or stop at, the nearest or most convenient port, where an in- 
 quiry is to be made. If the complaint shall appear to be groundless, the 
 expenses and reasonable damages to be ascertained by the judge, are to 
 be deducted from the wages of the seaman. But if the vessel be found 
 or made sea-worthy, and the seamen shall refuse to proceed on the voyage, 
 they are subjected to imprisonment until they pay double the advance 
 made them on the shipping contract. Fishermen engaged in the fisheries 
 are liable to the like penalties for desertion ; and the fishing contract must 
 be in writing, signed by the shipper and the fishermen, and countersigned 
 by the owner. 
 
 7. What is provided in regard to wages ? 178 
 
 That one-third shall be due at every port at which the vessel shall 
 unlade and deliver her cargo, before the voyage be ended ; and at the end 
 of the voyage, the seamen may proceed in the District Court, by admiralty 
 process, against the ship, if the wages be not paid' within ten days after 
 they are discharged. 
 
 8. What is provided for the health and safety of seamen ? 179 
 
 That every ship belonging to a citizen of the United States, of the 
 burthen of one hundred and fifty tons, or upwards, navigated by ten or 
 more persons, and bound to a foreign port ; or of the burthen of seventy 
 tons, or upwards, and navigated by six or more persons, and bound from 
 the United States to the West Indies, shall be provided with a medicine 
 chest, properly supplied with fresh and sound medicines ; and if bound 
 across the Atlantic ocean, with requisite stores of water, and salted meat, 
 and wholesome ship bread, well secured under deck. And it is further 
 provided, for the purpose of affording relief to sick and disabled seaman, 
 that a fund be raised out of their wages, earned on board of any vessel of 
 the United States, and be paid by the master to the collector of the port, 
 on entry from a foreign port, at the rate of twenty cents per month for 
 every seamen. It is also made the duty of the American consuls and 
 commercial agents, to provide for those seamen who may be found desti- 
 tute within their consular districts, and for their passages to some port in 
 the United States, in a reasonable manner, at the expense of the United 
 States. So, if an American vessel be sold in a foreign port, and her com- 
 pany discharged, or a seaman be discharged without his consent, the mas- 
 ter must pay to the consul or commercial agent at the place, three months 
 pay, over and above the wages then due, for every such seaman, two-thirds
 
 LEC. XLVI.] REDUCED TO QUESTION'S AXD ANSWERS. 143 
 
 of which is to be paid over to every seamen so discharged, upon his en- 
 gagement on board of any vessel to return to the United States. 
 
 9. How far has the master authority over the seaman ? 181 
 
 He may imprison, and also inflict reasonable corporal punishment 
 upon a seaman, for disobedience to reasonable commands.or for disorderly, 
 riotous, or insolent conduct ; and his authority, in that respect, is analo- 
 gous to that of a master on land over his apprentice or scholar. He may 
 discharge a seaman for just cause, and put him on shore in a foreign 
 country ; but the cause must not be slight, but aggravated, such as habitual 
 disobedience, mutinous conduct, theft, or habitual drunkenness ; and he is 
 responsible in damages if he discharge him without justifiable cause. 
 This power extends to the mate and subordinate officers. 
 
 10. What is the maritime law as to the expense attending sick and disa- 
 bled seamen during the voyage 184 
 
 It was decided in Harden v. Gordon, (2 Masons Rep. 541,) that the 
 expense of curing a sick seaman in -the course of the voyage, was a 
 charge upon the ship, according to the maritime law of Europe. 
 
 11. What is the rule as to seamen's right to extra wages 1 185 
 
 That every seaman engaged to serve on board a ship, is bound, from 
 the terms of the contract, to do his duty in the service to the utmost of his 
 ability, and, therefore, a promise made by the master when the ship is in 
 distress, to pay extra wages, as an inducement to extraordinary exertion, 
 is illegal and void. It requires the performance of some service not 
 within the scope of the original contract, as by becoming a voluntary hos- 
 tage upon capture, to create a valid claim, on the part of the seaman, to 
 compensation, on a promise by the master, beyond the stipulated wages. 
 So, no wages can be recovered when the hiring has been for an illegal 
 voyage, or one in violation of a statute. 
 
 12. What is the rule as to wages where a seaman is unable to render his 
 service by sickness or bodily injury, happening during the voyage? 186 
 
 That he is entitled to his whole wages for the voyage. He will be 
 equally entitled to his wages to the end of the voyage, when wrongfully 
 discharged by the master during the course of it. If the seaman be 
 wrongfully discharged on the voyage, the voyage is then ended with re- 
 spect to him, and he is entitled to sue for his full wages for the voyage. 
 
 13. What is the general rule as to wages ? 187 
 
 The general principle of the marine law is, that freight is the mother 
 of wages, and if no frieght be earned, no wages are due. This principle 
 protects the owner, by making the right of the mariner to his wages, com- 
 mensurate with the right of the owner to his freight ; but that the rule 
 may duly apply, the freight must not be lost by the fraud or wrongful act
 
 144 KENT'S COMMENTARIES, [VOL. in. 
 
 of the master. The policy of the rule applies to cases of loss of freight 
 by a peril of the sea. 
 
 Seamen's wages, in trading voyages, are due pro rata itineris. 
 
 14. What is the rule where a seaman dies on the voyage ? 189 
 
 There is no settled English rule on the subject of his wages. In 
 one case, the court intimated, that his representatives might be entitled to 
 a proportion of his wages up to his death, when the hiring was by the 
 month. In this country, there has been contradictory decisions on the 
 point. In the Circuit and District Courts of the United States, for Penn- 
 sylvania, it was decided, that the representatives of a seaman dying on the 
 voyage, were entitled to full wages to the end of the voyage. On the other 
 hand, it was subsequently decided, in the District Court for South Caro- 
 lina, and in the District Court for Massachusetts, that full wages, by the 
 marine law, meant only the full wages up to the death of the mariner. 
 
 15. What effect has capture upon wages ? 191 
 
 Capture by an 'enemy extinguishes the contract for seamen's wages ; 
 and Sir William Scott, in the case of The Friends, (4 Rob. Adm. Rep. 
 143,) held, that the re-capture of the vessel did not revive the right, or re- 
 store him to his connection with the ship, inasmuch as he was not on 
 board at the re-capture, and did not render any subsequent service. The 
 doctrine of this case was overruled in Bergstrom v. Mills, (3 Esp. N. P. 
 Rep. 36,) and the American decisions have fully discussed the question, 
 and they lay down a different rule, and proceed on the just principle, that 
 the owner recovers his freight, and that is the parent of wages. When- 
 ever freight is earned, wages are due, and must be paid. 
 
 16. What is the law in cases of injuries produced by the misconduct 
 of any of the crew ? 194 
 
 They are bound to contribute out of their wages. But the circum- 
 stances must be such as to fix the wrong upon some of the crew ; and 
 then, if the individual be unknown, those of the crew, upon whom the pre- 
 sumption of guilt rests, stand as sureties for each other, and they must 
 contribute ratably to the loss. If the embezzlement be fixed upon any in- 
 dividual, he is wholly responsible. 
 
 17. How is the lien of seamen for wages regarded by the marine law ? 
 196 
 
 Few claims are more highly favoured and protected by law, and when 
 due, the vessel, owners, and master are liable for the payment of them. 
 The seamen need not libel the vessel at the immediate port where they 
 are discharged. They may disregard bottomry bonds, and pursue their 
 lien for wages afterwards, even against a subsequent bonafide purchaser. 
 There is no difference between a vessel seized abroad and restored in 
 specie or in value ; the lien attaches to the thing, and whatsoever is sub- 
 stituted for it.
 
 LEG. XLVII.] REDUCED TO QUESTIONS AND ANSWERS. 145 
 
 18. What causes work a forfeiture of wages ? 198 
 
 Desertion from the ship without just cause, or the justifiable discharge 
 of a seaman by the master. But the forfeiture is saved if the seaman re- 
 pents, and makes compensation, or offer of amends, and is restored to his 
 duty. 
 
 LECTURE XLVII. 
 OF THE CONTRACT OF AFFREIGHTMENT. 
 
 1. What is a charter party ? 200 
 
 It is a contract of affreightment in writing, by which the owner of a 
 ship lets the whole, or a part of her, to a merchant, for the conveyance of 
 goods, on a particular voyage, in consideration of the payment of freight. 
 
 2. What does the charter party usually contain? 202 
 
 It describes the parties, the ship, and the voyage, and contains, on 
 the part of the owner, a stipulation as to sea-worthiness, and as to the 
 promptitude with which the vessel shall receive the cargo, and perform 
 the voyage ; and the exception of such perils of the sea for which the 
 master and ship owners do not mean to be responsible. On the part of 
 the freighter, it contains a stipulation to load and unload within a given 
 time, with an allowance of so many lay, or running days, for loading the 
 cargo, and the rate and times of payment of the freight, and rate of demur- 
 rage beyond the allotted days. 
 
 3. What is the duty of the owner of a chartered ship ? 203 
 
 It is his duty not only to see that she is duly equipped, and in suitable 
 condition to perform the voyage, but he is bound to keep her in that con- 
 dition throughout the voyage, unless he be prevented by perils of the sea. 
 If, in consequence of a failure of equipment of the vessel, the charterer 
 does not employ her, he is not bound to pay freight ; but if he actually 
 employs her, he must pay the freight, though he has his remedy on the 
 charter party for damages sustained, by reason of the deficiency of the ves- 
 sel in her equipment. 
 
 4. What is understood by demurrage 1 203 
 
 The extra lay days, (being the days allowed to load and unload the 
 cargo,) are called days of demurrage ; and that term is likewise applied 
 19
 
 146 KENT'S COMMENTARIES, [VOL. lit. 
 
 to the payment for such delay, and it may become due either by the ship's 
 detention, for the purpose of unloading or loading the cargo, either before, 
 or during, or after the voyage, or in waiting for convoy. 
 
 5. What is the rule as to sea-worthiness ? 204 
 
 The owner is bound to see that the ship be seaworthy, which means 
 that the vessel must be tight, staunch, strong, well furnished, manned, vic- 
 tualled, and, in all respects, equipped in the usual manner, for the merchant 
 service -in such a trade. The ship must be fit and competent for the sort 
 of cargo, and the particular service for which she is engaged. If there 
 should be a latent defect in the vessel, unknown to the owner and undis- 
 coverable upon examination, yet the better opinion is, that the owner must 
 answer for the damage occasioned by that defect. The owner is also 
 obliged to see that the ship be furnished with all the requisite papers ac- 
 cording to the laws of the country to which she belongs, and according to 
 treaties, and the law of nations. 
 
 6. What is understood by a bill of lading ? 207 
 
 It is an acknowledgment by the master of the receipt of the goods 
 on board, and of the conveyance of them which he assumes. 
 
 7. What does it contain ? 207 
 
 It contains the quantity and marks of the merchandise, the names of 
 the shipper and consignee, the places of departure and discharge, the name 
 of the master, and of the ship, with the price of freight. By the bill of 
 lading, the master engages as a common carrier to carry and deliver the 
 goods to the consignee, or his order ; and by the common law, owners 
 were responsible for damages to goods on board, to the full extent of the 
 loss. There are commonly three bills of lading ; one for the freighter, 
 another for the consignee, factor, or agent abroad, and one is usually" kept 
 by the captain for his own use. It is the document and title of the goods 
 sent ; and, as such, if it be to order, or assigns, is transferable in the 
 market. 
 
 8. What is the effect of an endorsement of the bill of lading ? 207 
 
 The endorsement and delivery of it, transfers the property in the 
 goods from the time of the delivery. The bona fde holder of the bill of 
 lading endorsed by the consignee is entitled to the goods, if he purchased 
 it for a valuable consideration. 
 
 9. What are the obligations of the master of a chartered ship during 
 the voyage ? 209 
 
 When the voyage is ready, he is bound to sail as soon as the wind 
 and tide will permit ; but he ought not to set out in very tempestuous 
 weather. He is bound, likewise, to proceed to the port of delivery with- 
 out delay, and without any unnecessary deviation from the direct and usual
 
 LEC. XLVH.j REDUCED TO QUESTIONS AND ANSWERS. 147 
 
 course. If he covenants to go to a loading port, by a given time, he must 
 do it, or abide the forfeiture , and if he be forced out of his regular course, 
 he must regain it with as little delay as possible. 
 
 10. What cause will justify a deviation ? 209 
 
 Nothing but some necessary cause, as to avoid a storm, or pirates, or 
 enemies, or to procure requisite supplies or repairs, or to relieve a ship in 
 distress. In cases of necessity, as where the ship is wrecked, or other- 
 wise disabled in the course of the voyage, and cannot be repaired, or can- 
 not under the circumstances, without too great delay and expense, the 
 master may procure another competent vessel to carry on the cargo and 
 save his freight. 
 
 11. What if the ship be captured during the voyage ? 213 
 
 The master is bound to render his exertions to rescue the property 
 from condemnation, by interposing his neutral claims, and exhibiting all 
 the documents in his power for the protection of the cargo. 
 
 12. What is the rule as to the delivery of the goods at the port of desti- 
 nation ? 215 
 
 The general rule is, that delivery at the wharf, discharges the master. 
 But the reasonable qualification of the rule is, that there must be a de- 
 livery at the wharf to some person authorized to receive the goods, or due 
 previous notice must have been given to the consignee of the time and 
 place of delivery. 
 
 13. What causes will excuse the ship-owner and master for the non- 
 delivery of the cargo? 216 
 
 They are liable as common carriers, in all the strictness and extent 
 of the common law, and can only be excused by events falling within one 
 of the expressions " act of God and public enemies," or some cause ex- 
 pressly provided for in the charter party. 
 
 14. What is meant by perils of the sea? 216 
 
 They denote natural accidents peculiar to that element, which do not 
 happen by the intervention of man, nor are to be prevented by human 
 prudence. A casus fortuitus was defined by the civil law to be quod damno 
 fatali contingit, cuivis d iligentissimo possit contingere. It is a loss happen- 
 ing in. spite of all human effort and sagacity. 
 
 15. What are the duties of the shipper? 218 
 
 To use the ship in a lawful manner, and for the purpose for which it 
 was let. v 
 
 16. What is meant by freight ? 219
 
 148 KENT'S COMMENTARIES, [VOL. in. 
 
 In the common acceptation of the term, it means the price for the 
 actual transportation of goods by sea from one place to another ; but, in 
 its more extensive sense, it is applied to all rewards or compensation paid 
 for the use of ships. 
 
 17. What is meant by dead freight ? 219 
 
 If the merchant agrees to furnish a return cargo, and he furnishes 
 none, and lets the ship return in ballast, he must make compensation to 
 the amount of the freight ; and this is sometimes termed dead freight, in 
 contradistinction to freight due for the actual carriage of goods. 
 
 18. What is the rule as to the owner's lien for freight? 220 
 
 If there be no express agreement in the case, the master is not bound 
 to part with the goods until the freight be paid, but if he refuses to deliver 
 the goods for other cause tfian non-payment of freight, he cannot avail 
 himself of the want of tender. When the regulations of the revenue re- 
 quire the goods to be landed and deposited in a public warehouse, the 
 master may enter them in his own name, and preserve the lien. The ship 
 is bound to the merchandise and the merchandise to the ship, according to 
 the language of Cleirac. The ship-owner's lien for freight is gone when 
 the charterer is constituted owner, and takes exclusive possession for the 
 voyage, or when payment of the freight is, by agreement, postponed beyond 
 the time, or at variance with the time and place, for the delivery of the goods. 
 But without a plain intent to the contrary, the ship-owner will not be pre- 
 sumed to have relinquished his lien on the cargo for the freight, notwith- 
 standing he has chartered the vessel to another. If goods by the bill of 
 lading, were to be delivered to B., or his assigns, he or they paying freight, 
 and the assignee receives the goods, he is responsible to the master for 
 freight, under the implied undertaking to pay it. So, if the master delivers 
 the goods without payment of freight, he may sue the consignee to whom 
 the goods were delivered. If he cannot recover his freight of the con- 
 signee, he still has his remedy over on the charter party against the 
 shipper. 
 
 19. What if a ship be prohibited by the government of the country from 
 entering at the port of delivery, and the cargo be brought back ? 222 
 
 If the prohibition took place after the commencement of the voyage, 
 the freight for the outward voyage, has been held to have been earned. 
 Nothing can be more just, observes Valin, than that the outward freight 
 should be allowed, in such a case, since the interruption proceeds from an 
 extraordinary cause, independent of the ordinary maritime perils. The 
 case of a blockade or interdiction of commerce with the port of discharge, 
 is held to be different ; for in that case, the voyage is deemed to be broken 
 up, and the charter party dissolved ; and if the cargo, by reason of that 
 obstacle, be brought back, no freight is due. The same principle applies 
 if the voyage be broken up and lost, by capture on the passage. On the 
 other hand, an embargo detaining the vessel at the port of departure, or in the
 
 LEG. XLVII.] REDUCED TO QUESTIONS AND ANSWERS. 149 
 
 course of the voyage, does not, of itself, work a dissolution of the contract. 
 It is requisite that the ship break ground, to give an inception to freight. 
 
 20. What if the goods become so diminished in value, during the voy- 
 age, as not to be worth the freight 1224 
 
 The consignee is bound to take the goods and pay the freight. The 
 ship-owner performs his engagement when he carries and delivers the 
 goods. The right to his freight then becomes absolute. It may impair 
 the remedy which his lien afforded, but it does not affect his personal 
 demand against the shipper. 
 
 21. In what cases does the question of ratable freight arise ? 227 
 
 1. When the ship has performed the whole voyage, and has brought 
 only a part of her cargo to the place of destination. 2. When the ship 
 has not performed her whole voyage, and the goods have been delivered 
 to the merchant, at a place short of the port of delivery. In the case of 
 a general ship, or one chartered for freight, to be paid according to the 
 quantity of goods, freight is due for what the ship delivers. But if the 
 ship be chartered at a specific sum for the voyage, the stipulated voyage 
 must be actually performed. A partial performance is not sufficient, nor 
 can a partial payment of freight be claimed except in special cases. If, 
 however, the merchant accepts the goods at the intermediate port, the 
 general rule of the marine law is, that freight & to be paid according to 
 the proportion of the voyage performed, and the law will imply such a 
 contract ; and it is now settled in the English and American law, that 
 freight, pro rata itineris, is due, when the ship, by inevitable necessity, is 
 forced into a port short of her destination, and is unable to prosecute the 
 voyage, and the goods are there voluntarily accepted by the owner. Such 
 an acceptance constitutes the basis of the rule for a pro rata freight. 
 
 22. How is a loss by the collision of ships adjusted ? 230 
 
 When the fact is clear, that a fault has been committed by one party, 
 or that he was in want of due skill or care, and the loss was the conse- 
 quence thereof, the party in fault must pay all the damages. 
 
 23. What are the nautical rules, by which want of care may be ascer- 
 tained? 230 
 
 In most cases they are as follows. The vessel that has the wind 
 free, or is sailing before or with the wind, must get out of the way of the 
 vessel that is close-hauled, or sailing by or against it. The vessel on the 
 starboard tack has a right to keep her wind, and the vessel on the larboard 
 tack is bound to bear up or heave about to avoid danger, or be answerable 
 for the consequences. The vessel to windward is to keep away when 
 both vessels are going the same course in a narrow channel, and there is 
 danger of running afoul of each other. But in the case of a steam vessel, 
 which has greater power, and is more under command, she is bound to 
 give way to a vessel with sails, in case of collision.
 
 KENT'S COMMENTARIES, [VOL. in. 
 
 24. What is meant by general average ?~ 232 
 
 General, gross, or extraordinary average, means a contribution made 
 by all parties in interest, for the benefit of all ; and it is called general, or 
 gross average, because it falls upon the gross amount of the ship, car'eo 
 and freight. 
 
 25. What constitutes the ground of a general average ? 233 
 
 The goods must not be swept away by the violence of the waves, for 
 then the loss falls entirely upon the merchant or his insurer, but they must 
 be intentionally sacrificed by the mind and agency of man for the safety of 
 the ship, and residue of the cargo. The jettison must be made for suffi- 
 cient cause, and not from groundless timidity. It must be made in a case 
 of extremity, when the ship is in danger of perishing by the fury of the 
 storm, or is labouring upon the rocks and shallows, or is closely pursued 
 by pirates or enemies ; and then, if the ship, and the residue of the cargo 
 be saved by means of the sacrifice, nothing can be more reasonable than 
 that the property saved should bear its proportion of the loss. To avoid 
 an absolute shipwreck, it may sometimes be necessary to run the vessel 
 on shore in a place which appears to be the least dangerous ; and that will 
 form a case of general average. 
 
 26. What things are the proper subjects for a general average ? 235 
 If a ship be injured by perils of the sea, and be obliged to go into 
 
 port to refit, the wages and provisions of the crew, during the detention, 
 constitute the subject of a general average ; the necessary expenses of 
 going into port, and of preparing for refitting the ship, by unloading, ware- 
 housing, and re-loading the cargo, are general average. The cost of the 
 repairs, so far as they accrue to the ship alone as a benefit, and would 
 have been necessary in that port, on account of the ship alone, are not 
 average. The wages and provisions of the crew, during capture and de- 
 tention for adjudication, are the subject of general average. If part of the 
 cargo be voluntarily delived up to a pirate, or an enemy, by way of ransom 
 or contribution, and to induce him to spare the vessel and the residue of 
 the goods, the property saved must contribute to the loss, as beino- the 
 price of the safety to the rest. If masts, cable, and other equipments of 
 the vessel be cut away, to save her in a case of extremity, their value must 
 be made good by contribution. 
 
 27. What goods are subject to contribution, in cases of general aver- 
 age ? 240 
 
 The general doctrine is, that all merchandise, of whatever kind or 
 weight, or to whomsoever belonging, contributes. The contribution is 
 made, not on account of encumbrance to the ship, but of safety obtained, 
 and, therefore, bullion and jewels put on board as merchandise, contribute 
 according to their full value. Goods shipped on deck contribute if saved, 
 but if lost by jettison, they are not entitled to the benefit of general aver- 
 age. The common rule, according to Magens, is, that what articles pay
 
 LEG. XLYIII.] REDUCED TO QUESTIONS AND ANSWERS. 151 
 
 freight must contribute, and what pay no freight pay no average. Instru- 
 ments of defence and provisions do not contribute, nor do wages of 
 seamen contribute. Goods sold for the necessities of the ship, are the 
 subject of general average. 
 
 28. What is the general rule for settling general average ? 242 
 
 That the goods sacrificed, as well as the goods saved, are to be 
 valued at the clear net price they would have yielded, after deducting 
 freight, at the port of discharge. The value of the vessel lost is estima- 
 ted according to her value at the port of departure, making a reasonable 
 allowance for wear and tear, on the voyage up to the time of the disaster. 
 
 29. What is meant by salvage 1 245 
 
 The compensation allowed to persons by whose assistance a ship or 
 its cargo has been saved in whole or in part from impending danger, or 
 recovered from actual loss, in cases of shipwreck, derelict, or re-capture. 
 
 30. What amount is usually allowed for salvage ? 245 
 
 The courts are liberal in the allowance of salvage in meritorious 
 cases, as a reward for the service, and as an incentive to effort ; and the 
 allowance fluctuates between one half, one third, and one fourth of the net 
 proceeds of the property saved, but one third has been the most usual 
 rate. In general, neither the master, nor a passenger, seaman, or pilot, is 
 entitledCto compensation in the way of salvage, for the ordinary assistance 
 he may afford a vessel in distress. Yet if the ship has been abandoned 
 so as to discharge a seaman from his contract, and he subsequently contri- 
 butes to the preservation of the vessel, he will be entitled to salvage. 
 
 3 1 . What will work a dissolution of the contract of affreightment, with- 
 out a performance ? 248 
 
 If the voyage becomes unlawful, or impossible to be performed, or if 
 it be broken up, either before or after it has actually commenced, by war, 
 or interdiction of commerce with the place of destination the contract is 
 dissolved. 
 
 LECTURE XLVIII. 
 OF THE LAW OF MARINE INSURANCE. 
 
 1. What is marine insurance? 252 
 
 It is a contract whereby one party, for a stipulated premium, undertakes 
 to indemnify the other against certain perils, or sea risks, to which his
 
 152 KENT'S COMMENTARIES, [VOL. in- 
 
 ship, freight, and cargo, or some of them, may be exposed, during a cer- 
 tain voyage, or a fixed period of time. 
 
 2. Who may be insured 1252 
 
 All persons whether aliens or natives, except alien enemies. 
 
 3. Who may be insurers ? 255 
 
 Any individuals, or companies, or partnerships, may lawfully become 
 insurers. In New York marine insurance, or lending on respondentia or 
 bottomry, effected within the state, is prohibited to all persons and com- 
 panies residing in any foreign country, acting by agent here. Persons and 
 associations residing in other states effecting such insurances in New 
 York, are taxed ten per cent on their premiums. 
 
 4. What, if in the terms of the contract, a ship be specified ' 257 
 
 It becomes a part of the contract, and no other ship can be substitu- 
 ted without necessity ; but the cargo may be shifted from one ship to an- 
 other, if done from necessity, and the insurer of it will be still liable. 
 
 5. What does an insurance on the body of a ship include ? 257 
 
 It sweeps in, by the comprehensiveness of the expression, whatever 
 is appurtenant to the ship. This doctrine is taught by all the continental 
 writers on insurance, as well as in the English law. 
 
 6. What if a partner insure in his own name only ? 258 
 
 It will cover his undivided interest in the partnership, and no more. 
 If the policy has the words, and whomsoever it may concern, then it will 
 cover the partnership interest. 
 
 7. To whom only will those general words, whomsoever it may concern, 
 apply ? 258 
 
 To the person having an interest in the subject insured, and who was 
 in the contemplation of the contract. 
 
 8. Will a policy on a voyage from abroad be good, if it omit to name 
 the ship, or master, or port of discharge, or consignee 1 259 
 
 It may, for all these may be unknown to the insured when he applies 
 for insurance. 
 
 9. What if a policy be part written and part printed, and there should 
 arise a reasonable doubt, upon the meaning of the contract ? 260 
 
 The greater effect is to be attributed to the written words. 
 
 10. What if an agent effects a policy for his principal without his 
 knowledge ? 260
 
 LEC. XLVIII.] REDUCED TO QUESTIONS AND ANSWERS. 153 
 
 If the principal afterwards adopts the acts, the insurer is bound ; but 
 if it be not adopted the contract is not binding. 
 
 11. Is a merchant who has effects of his foreign correspondent in his 
 hands, or who has been in the habit of insuring for him, bound to comply 
 with an order to insure ? 261 
 
 He is, and the order may be implied in some cases, from the pre- 
 vious course of dealing between the parties. 
 
 12. What if the agent neglects, or imperfectly executes the order? 
 261 
 
 He is answerable as if he himself was the insurer, and is entitled to 
 the premium. 
 
 13. What if the subject matter of the policy be assigned ? 261 
 
 The policy may also be assigned, so as to give a right of action to 
 the assignee. 
 
 14. What is the proper subject of insurance 1 262 
 Lawful property engaged in lawful trade. 
 
 15. Is a policy on a voyage undertaken in violation of a blockade, or 
 of an embargo, or of the provisions of a treaty, legal ? 262 
 
 It is not, whether the policy be on the ship, freight or goods embark- 
 ed in the illegal traffic. 
 
 16. Is the insurance of goods employed in a foreign smuggling or con- 
 traband trade, valid? 263 
 
 It is, if the insured was fully informed, when he entered into the con- 
 tract, of the nature of the trade. But insurance to, does not include the risk 
 of going into the port in violation of law, unless the peril of illicit entry 
 at the port be also within the provision or contemplation of the policy. 
 
 17. Is the insurance by a neutral, of goods usually denominated contra- 
 band of war, valid ? 266 
 
 It is, for it is not deemed unlawful for a neutral to be engaged in a 
 contraband trade. Illicit voyages may be ranked in several classes : 
 
 1. When the sovereign of the country to which the ship belongs, in- 
 terdicts trade with a foreign country or port ; in which case, a voyage, for 
 the purpose of trade, would be illegal, and all insurances thereon void. 
 
 2. Where the trade in question is prohibited by the trade laws of a 
 foreign state ; and in that case, the voyage, in such trade, may be the sub- 
 ject of insurance in any state in which the trade is not prohibited, for the 
 municipal laws of one jurisdiction have no force in another. 
 
 3. When neutrals transport to belligerents goods contraband of war. 
 
 20
 
 154 KENT'S COMMENTARIES, [VOL. in 
 
 The law of nations does not go to the extent of rendering the neutral ship- 
 per of goods contraband of war an offender against his own sovereign. 
 An insurance, then, by neutrals, in a neutral country, is valid, whether it 
 relates to an interloping trade in a foreign port, illicit lege loci, or to a trade 
 in transporting contraband goods, which is illicit jure belli. 
 
 18. From what reason, have the ordinances generally prohibited the in- 
 surance of seamen's wages ? 269 
 
 From the consideration, that if the title to wages did not depend upon 
 the earning of freight by the performance of the voyage, seamen would 
 want one great stiraulous to exertion in times of difficulty and disaster. 
 
 19. What is the doctrine as to insuring freight 1 269 
 
 In France and Spain, freight not earned, cannot be insured, and for 
 the same reason, that seamen's wages are not insureable ; freight already 
 earned may be insured. In England, and in the United States, future, or 
 expected and contingent, and even dead freight, is held to be an insurable 
 interest. 
 
 20. When does the risk generally begin ? 270 
 
 From the time the goods, or a part of them, are put on board ; and if 
 the ship has been let to freight under a charter party of affreightment, the 
 right to freight commences, and is at risk, so soon as the ship breaks 
 ground ; and if the charterer omits to put on board the expected cargo, and 
 the ship performs the voyage in ballast, the right to freight is perfect. 
 
 21. Are profits a proper subject of insurance ? 271 
 
 They are ; the right to insure expected or contingent profits, is settled 
 in England, and has received repeated and elaborate confirmation. They 
 are likewise, in this country, held to be an insurable interest. In France 
 the insurances on profits are unlawful. 
 
 22. What is an open policy ? 272 
 
 It is one in which the amount of interest is not fixed, but is to be as- 
 certained by the insured, in case a loss should happen. 
 
 23. What is a valued policy ? 273 
 
 It is where the value has been set on the ship or goods insured, and 
 inserted in the policy, in the nature of liquidated damages. 
 
 24. What is the effect of an excessive, or fraudulent valuation ? 273 
 
 A valuation, fraudulent in fact, as respects the insurer, or so excessive 
 as to raise a necessary presumption of fraud, entirely vacates the policy. 
 
 25. Does the valuation apply to partial losses ? 274
 
 LEG. XLVJII.] REDUCED TO QUESTIONS AND ANSWERS. 155 
 
 The better opinion is, that in settling all losses, total or partial, the 
 valuation of the property in the policy, is to be considered as correct in 
 the adjustment of the loss. 
 
 26. What if there be certain articles comprised in a valuation and part 
 of them are safely landed before the ship is lost ? 275 
 
 The valuation must be opened, and the claim of the insured reduced 
 in the proportion which the articles actually lost bore to the valuation of 
 the whole at the commencement of the risk. - 
 
 27. What is a wager policy ? 275 
 
 A policy on a mere hope or expectation, without any interest in the 
 subject matter. 
 
 28. What is a sufficient interest ? 275 
 
 If a person be directly liable to loss on the happening of any partic- 
 ular event, he has an insurable interest. A creditor, to whom property is 
 assigned, as collateral security, has an insurable interest to the amount of 
 his debt. Commissions to become due to public agents, and all reasona- 
 ble expectations of profits, are insurable interests. Interest does not ne- 
 cessarily imply a right to, or property in, the subject insured. 
 
 29. What is a re-assurance ? 278 
 
 It is where after an insurance has been made, the insurer hath the 
 entire sum re-assured to him, by some other insurer. The first insurer 
 may re-assure to the same amount ; but the better opinion is that he cannot 
 insure the premium due him for the first insurance. The insured may 
 ikewise insure the solvency of the first insurer. 
 
 30. What is a double insurance ? 280 
 
 It is where the insured makes two insurances on the same risk, and 
 the same interest. But the law will not allow him to receive a double 
 satisfaction, though he may sue on both the policies. The underwriters 
 on both the policies are bound to contribute ratably towards the loss. 
 
 31. What is the rule for contribution in cases of double insurance ? 
 281 
 
 It was declared by the Circuit Court of the United States at Philadel- 
 phia, Thurston v. Koch, that the insurers pay according to the rate of their 
 subscriptions, without regard to the order of time in which the policies 
 were made, and if the insured recovers his whole loss from one set of un- 
 derwriters, they will be entitled to their action against the other insurers, 
 on the same interest and risk, for a ratable proportion of the loss. The 
 French rule is, that if there exist several contracts of insurance on the 
 same interest and risk, and the first policy covers the whole value of the
 
 156 KENT'S COMMENTARIES, [VOL. in. 
 
 subject, it bears the whole loss, and the subsequent insurers are discharged 
 on returning all but one half per cent, premium. The ancient rule in Eng- 
 land was according to the French ordinance. 
 
 32. What if two policies be dated on the same day ? 281 
 The policy first in point of fact, must bear the loss. 
 
 33. What is the usage of the companies in New York, in regard to par- 
 tial losses ? 281 
 
 That they are to be apportioned between the policies, without regard 
 to dates, provided the cargo on board was large enough to have attached 
 both policies. This is the French rule. 
 
 34. What is a representation ? 282 
 
 It is a communication of the facts and objects which are to deter- 
 mine the will of the insurer. 
 
 35. What are the effects of a misrepresentation ? 282 
 
 It is an established principle, that a misrepresentation to the under- 
 writer, or the concealment of a fact material to the risk, will avoid the 
 policy. A representation to the first underwriter, in favour of the risk, 
 extends to all subsequent underwriters. This rule is strictly confined to 
 representations made to the first underwriter, and does not extend to in- 
 termediate ones. Nor does it extend to a subsequent underwriter on a 
 different policy, though on the same vessel, and against the same risks. 
 
 36. What is meant by the warranty of seaworthy 1 287 
 
 That the vessel is competent to resist the ordinary attacks of wind 
 and weather, and is competently equipped and manned for the voyage, with 
 a sufficient crew, and with sufficient means to sustain them, and with a 
 captain of general good character and nautical skill. This warranty of 
 seaworthiness relates to the commencement of the risk, and the warranty 
 is not broken if she becomes unseaworthy afterwards. 
 
 37. What is the effect of the breach of the implied warranty of sea- 
 worthiness in the course of the voyage ? 288 
 
 It has no retrospective operation, and does not destroy a just claim to 
 damages for losses occurring prior to the breach of this implied condition. 
 
 38. How is every warranty considered ? 288 
 
 As a part of the contract, and is either express or implied. If it be 
 an express warranty, it must appear on the face of the policy. It requires 
 a strict and literal performance. Whether the thing warranted be mate- 
 rial or not, and whether the loss happened by reason of a breach of the 
 warranty, or did not, is immaterial. A breach of it avoids the contract 
 ab initio.
 
 LEC. XLVIII.] REDUCED TO QUESTIONS AND ANSWERS. 157 
 
 39. What is the effect of a survey 1 289 
 
 If it be made within a reasonable time after the determination of the 
 voyage, and if the survey states that the vessel was condemned solely on 
 account of rottenness existing at the time of the survey, it is a conclusive 
 bar to the assured. 
 
 40. What are the most usual express warranties ?--289 
 
 That the ship was safe at such a time, or would sail by such a day, 
 or would sail with convoy, or a warranty against illicit trade, or that prop- 
 erty insured is neutral. 
 
 41. What are the risks usually insured against ? 291 
 
 The general rule is, that the insurer charges himself with all the 
 maritime perils that the thing insured can meet with on the voyage ; but 
 the enumerated list may be enlarged or abridged at the pleasure of the 
 parties. 
 
 42. May a person insure against a loss by reason of the acts of his 
 own government, as an arrest, or embargo ? 291 
 
 He may, and there is no distinction on this point between a foreign 
 and a domestic embargo ; if the embargo intervenes after the commence- 
 ment of the risk, it suspends, but does not dissolve the contract of in- 
 surance, and the insured may abandon as for a total loss. 
 
 43. To what does a warranty against illicit trade apply 1 294 
 
 Only to seizures for breaches of the laws of trade, and the commer- 
 cial regulations of ports. It does not extend to seizures for offences 
 against the law of nations, nor to acts of lawless violence, though com- 
 mitted under a pretext of some municipal regulation ; nor to arbitrary 
 seizures under the pretence of illicit trade, when in fact no such trade 
 existed. 
 
 44. What is the established rule, if the loss of memorandum articles be 
 partial ? 299 
 
 That the underwriter pays nothing ; and it is partial only, when part 
 of the cargo arrives in safety, however deteriorated in value, though 
 another part of the cargo had been wholly destroyed by disasters on the 
 voyage. 
 
 45. What are the usual perils covered by the policy ? 299 
 
 All those natural perils and operations of the elements which occur 
 without the intervention of human agency, and which the prudence of 
 man could not foresee, nor his strength resist. 
 
 46. Is the destruction of the ship by worms within perils of the sea 
 insured against ? 300
 
 158 KENT'S COMMENTARIES, [VOL. in. 
 
 It is not ; nor the loss of an anchor by the friction of rocks, nor the 
 diminution of liquids by ordinary leakage, nor hemp taking fire in a state 
 of effervescence, nor injury done to the ship by rats. 
 
 47. After what length of time, shall a missing vessel be presumed to 
 have perished by the perils of the sea? 301 
 
 There is no precise time fixed by the English law. In the French 
 law, a vessel not heard from is presumed to have been lost, after the ex- 
 piration of one year, in ordinary voyages, and two in long ones. By the 
 ordinance of Hamburg, a ship was presumed to be lost, if bound to any 
 place in Europe, and not heard from in three months, and by the Recopi- 
 lacion des Loyes de Indias, in Spain, if not heard from within a year and 
 a half. In the case of missing vessels, the loss is presumed to have hap- 
 pened immediately after the date of the last news. 
 
 48. If a ship be driven ashore by the wind, and in that situation is cap- 
 tured by an enemy, to which is her loss attributed 1 302 
 
 To the capture ; for the peril, whatever it may be, upon which the 
 policy attaches, must be the proximate, and not the remote cause of the 
 loss. 
 
 49. What if a partial loss be followed by a total loss 1 302 
 The former may be considered as merged in the latter. 
 
 50. Are the wages and provisions of the crew, during the necessary 
 detention of the vessel for repairs, requisite in the course of the voyage, 
 by reason of the perils insured against, considered as included in the 
 perils of the sea ? 302 
 
 By the rule and practice of these United States they are, and made 
 chargeable upon the insurer. 
 
 51. What do the enumerated perils of pirates, rovers, and thieves, in- 
 clude ? 303 
 
 
 
 The wrongful and violent acts of individuals, whether in the open 
 character of felons, or the character of a mob, or a mutinous crew, or as 
 plunderers of shipwrecked goods on shore. 
 
 52. To what does the stipulation of indemnity against all takings at sea, 
 arrests, restraints, and detainments of all kings, princes, and people, 
 refer ? 303 
 
 Only to the acts of government for government purposes, whether 
 right or wrong. 
 
 53. What is the effect of an arrest in the domestic port ? 303 
 
 If made after the voyage is commenced it justifies an abandonment ;
 
 LEC. XLVIII.] REDUCED TO QUESTIONS AND ANSWERS. 159 
 
 but if made before the risk commenced, the contract is discharged. An 
 arrest by admiralty process, at the instance of an individual, on a private 
 claim, is not a case within the policy. 
 
 54. How far is the insurer liable under the insurance against fire ? 304 
 
 It is held, that if the ship be burnt under justifiable circumstances, to 
 prevent capture, or from an apprehension of a contagious disease, the in- 
 surer is liable. If sails and rigging, put on shore while the vessel is re- 
 pairing at a foreign port, be burnt, they are covered by the policy. It has 
 likewise been held, after a learned discussion, that the insurer is answera- 
 ble for a loss by fire occasioned by the negligence of the master and 
 mariners. 
 
 55. What is barratry ? 304 
 
 It means fraudulent conduct on the part of the master, in his char- 
 acter of master, or of the mariners, to the injury of the owner, and without 
 his consent, and it includes every breach of trust committed with dishonest 
 views. Barratry is used by the French writers in a larger sense, as com- 
 prehending negligence, as well as misconduct. 
 
 56. What time is included in a policy, at and from ? 307 
 
 All the time the ship is in port after the policy is subscribed, if the 
 ship be at home ; and if abroad, it commences, according to a decision in 
 Pennsylvania, only from the time she has been moored twenty-four hours 
 in safety after her arrival. But if a ship be expected to arrive at a foreign 
 port, <ind be insured at and from that place, or from her arrival there, other 
 cases say, the risk attaches from her first arrival. The risk continues 
 during quarantine, though after the twenty-four hours. 
 
 57. What if the policy be to a country generally, as to Jamaica ? 308 
 
 The risk ends at the first port made for the purpose of unloading, 
 after the vessel has been moored there twenty-four hours in safety. But 
 in France, where insurances are generally made to the French West India 
 Islands, the risk continues until the cargo is discharged at the last place 
 of destination. 
 
 58. At what time does the risk begin in insurances on freight ? 311 
 
 Usually from the time the goods are sent on board, and not before. 
 But if the ship, sailing under contract, be lost on her way to the port of 
 lading, or at the port of lading to which she had arrived in ballast, before 
 any goods are put on board, or when part only of the cargo is on board, 
 and preparation making to receive passengers, the insurer on freight and 
 passage money is liable. 
 
 59. What is the effect of deviation ? 312 
 
 If the vessel departs voluntarily, and without necessity, from the
 
 160 KENT'S COMMENTARIES, [VOL. m. 
 
 usual course of the voyage, the insurer is discharged ; not indeed from 
 loss occurring previous to the deviation, but from all subsequent losses. 
 Any stoppage on the high seas, except for the purpose of saving life, is a 
 deviation, and will discharge the underwriter. 
 
 60. What if there be several ports of discharge mentioned in the policy, 
 and the insured goes to more than one ? 314 
 
 He must go to them in the order in which they are named in the 
 policy, or if they be not specifically named, he must generally go to them 
 in the geographical order in which they occur. 
 
 61. What if the ship quits from necessity, the course described in the 
 policy? 315 
 
 She must pursue such new voyage of necessity, in the direct course, 
 and in the shortest time, or it will amount to a deviation. 
 
 62. What if the vessel have liberty to carry letters of marque? 315 
 
 She may deviate for the purpose of defence, but not for the purpose 
 of capture. In Haven v. Holland, (2 Mason's Rep., 230,) a pretty enlarged 
 discretion, for the purpose of capture, was confided to the captain, as to 
 the best mode of defence, and it was held, that the letter of marque might 
 chase and capture hostile vessels in sight, in the course of the voyage. 
 If liberty be given her to chase and capture, that will not enable her to 
 convoy her prize into port ; and to cruise for six weeks, means six con- 
 secutive weeks, and not at different times. 
 
 
 
 63. What is a total loss within the meaning of the policy? 318 
 
 It may arise either by the total destruction of the thing insured, or, 
 if it specifically remains, by such damage to it as renders it of little value. 
 A loss is said to be total if the voyage be entirely lost or defeated, or not 
 worth pursuing, and the projected adventure frustrated. It is a construc- 
 tive total loss if the thing insured, though existing in fact, is lost for any 
 beneficial purpose to the owner. 
 
 64. What is the effect of an abandonment ? 319 
 
 It has a retrospective effect, and does of itself, and without any deed 
 of cession, transfer the right of property to the insurer to the extent of the 
 insurance. 
 
 65. Within what time, after information of the loss, must the abandon- 
 ment be made, in order to charge the underwriter with a constructive total 
 loss? 319 
 
 As soon as the insured is informed of the loss, he ought (after being 
 allowed a reasonable time to inspect the cargo, and for no other purpose,) 
 to determine promptly whether he will elect to abandon ; and he cannot 
 lie by to speculate on events.
 
 LEC. XLVIII.] REDUCED TO QUESTIONS AND ANSWERS. 161 
 
 " The reasonable time forgiving notice of abandonment depends upon 
 circumstances, and five days delay after intelligence received has been 
 held to late. 5 Maule <$ Selw. 47." 
 
 66. What kind, or extent of loss will constitute the right to abandon ? 
 
 321 
 
 Any case of extreme hazard, and of probable expense, exceeding 
 
 one half the value of the ship, though it should happen that she was after- 
 
 wards recovered at a less expense. Such are the common cases of total 
 
 >sses by embargoes, by captures, and by restraints, and detainments of 
 
 The right to abandon exists when the ship, for all the useful 
 
 purposes of the voyage, is gone from the control of the owner ; as in the 
 
 cases of submersion, or shipwreck, or capture. 
 
 The right of abandonment is to be judged of by all the circumstances 
 ol each particular case, and there is no general rule that the injury to the 
 ship must in all cases exceed one half of her value, to justify an abandon- 
 ment. 3 Mason's Rep. 27. 
 
 67 In what cases does the French ordinance of the marine, allow of 
 an abandonment? 322 
 
 In cases of capture, shipwreck, stranding with partial wreck, disabil- 
 
 the vessel occasioned by perils of the sea, arrest by a foreign 
 
 power, or arrest on the part of the government of the insured after the 
 
 :ommencement of the voyage, and a loss or damage of the property insu- 
 
 red, if amounting to at least three-fourths of its value. 
 
 68. What is shipwreck ? 323 
 
 There are two kinds, 1. When the vessel sinks or is dashed to 
 2. When she is stranded, that is, when she is grounded and fills 
 with water. 
 
 69. What is the general rule as to abandonment ? 329 
 
 That if the ship be so injured by perils as to require repairs to the 
 extent of more than one half of her value, the insured may abandon ; for 
 ship or cargo be damaged, so as to diminish their value above one half 
 they are said to be lost. 
 
 mo, 
 
 If the insurance be upon different kinds of goods indiscriminately, or 
 
 3 one entire parcel, it is then an insurance upon an integral subject, and 
 
 an abandonment of part only cannot be made. But if the articles be sep- 
 
 arately specified and valued, it has been considered so far in the nature of 
 
 . distinct insurance on each parcel, that the insured was allowed to re- 
 
 cover for a total loss of the damaged parcel. The meaning of the words 
 
 in the rule, one half of the value," has been held to be, the half of the 
 
 r> i
 
 162 KENT'S COMMENTARIES., [VOL. in. 
 
 general market value of the vessel, at the time of the disaster, and not 
 her value for any particular voyage, or purpose. It has been considered, 
 that the three objects of insurance, vessel, cargo, and freight, stand on the 
 same ground as to a total loss by deterioration to more than one half of the 
 value. 
 
 71. What is the rule for ascertaining the value of the ship, and the 
 quantum of expense or injury ? 330 
 
 The valuation in the policy is conclusive in case of a total loss, but 
 in some respects, it is inapplicable for the purpose of ascertaining the 
 quantum of injury, in case of a partial loss of goods. The rule in that 
 case is, to ascertain the amount of injury by the difference between the 
 gross proceeds of the sound and damaged goods. 
 
 72. What is the doctrine, as regards the freight of an abandoned ship 1 
 333 
 
 It has been a controverted question, whether an abandonment of the 
 ship transferred the freight in whole or in part. It was finally settled in 
 the jurisprudence of New York and of Massachusetts, and adopted as the 
 true rule in the Circuit Court of the United States for Massachusetts, that 
 on an accepted abandonment of the ship, the freight earned previous to the 
 disaster was to be retained by the owner, or his representative, the insurer 
 on the freight, and apportioned pro rata itineris. This litigious question 
 has now been settled in England ; and in Case v. Davidson, (5 Maule < 
 Selw. 79. S. C. affirmed on error, 2 Brod. Bing. 379. In this case the 
 court did not make any distinction between the freight earned as a pro 
 rata freight, antecedent to the abandonment, and that earned afterwards, 
 but the entire freight was held to pass with the transfer of the ship. 
 Where ship and freight were separately insured, and each subject aban- 
 doned as for a total loss, it was adjudged that the abandonment of the ship 
 transferred the freight as incident, and that an abandonment was equiva- 
 lent to a sale of the ship to the abandonee. The French new code of 
 commerce declared that the freight of goods saved, though paid in advance 
 went, upon abandonment, to the insurer on the ship. The construction 
 given to the code by the Royal Court at Rennes, in 1822, in the case of 
 Blaize v. Company of General Assurance at Paris, was, that the future 
 freight did not go to the insurer on the ship, but only the freight on the 
 goods saved and already earned at the time of the loss. 
 
 73. What is the rule for the adjustment of partial losses ? 334 
 
 In an open policy the general rule is, that the actual or market' value 
 of the subject insured, is to be estimated at the time of the commence- 
 ment of the risk. In Gahn v. Broome, the invoice price was adopted as 
 the most stable and certain evidence of the actual value ; but in Le Roy 
 v. The United Insurance Company, the invoice price was understood to be 
 equivalent to the prime cost, and that was commonly the market value of 
 the subject at the commencement of the risk. The English Court of
 
 LEC. XLVI.] REDUCED TO QDESTIOXS AND ANSWERS. 163 
 
 King's Bench, in Usher v. Noble pursued in effect, the same rule, by es- 
 timating a loss on goods in an open policy, at the invoice price at the 
 loading port, -and taking- with that the premium of insurance, and com- 
 mission, as the basis of the calculation. If goods arrive damaged at the 
 place of destination, the way to ascertain the quantity of the damage 
 either in open or valued policies, is to compare the market price or gross 
 amount of the damaged goods, with the market price or gross amount at 
 which the same goods would have sold if sound. 
 
 74. What is the rule, as to return of premium ? 341 
 
 If the insurance be void ab initio, or the risk has not been commen- 
 ced, the insured is entitled to a return of premium. If the insurance be 
 made without any interest whatsoever in the thing insured, and this pro- 
 ceeds through mistake, or misinformation, or any other innocent cause, the 
 premium is to be returned. If the risk has not been run, whether it be 
 owing to the fault, or pleasure, or will of the insured or to any other 
 cause, the premium must be returned. If the vessel never sailed on the 
 voyage insured, or the policy became void by failure of the warranty, and 
 without fraud, the policy never attached ; but if the risk has once com- 
 menced, though the voyage be immediately thereafter abandoned, there is 
 to be no return or apportionment of premium. And if the premium is re- 
 turned, it is the usage in every country Avhere it is not otherwise ex- 
 pressly stipulated in the policy, for the insurer to retain one half per cent, 
 by way of indemnity for his trouble and concern in the transaction. 
 
 LECTURE XL IX. 
 OF MARITIME LOANS. 
 
 1 . What are maritime loans called ? 352 
 Contracts of bottomry and respondentia. 
 
 2. What is a bottomry bond ? 354 
 
 It is a loan upon the ship and freight, and is in the nature of a mort- 
 gage, by which the ship-owner, or master on his behalf, pledges the ship 
 as security for money borrowed ; and it covers the whole freight of the 
 voyage, from the port of departure to the port of destination. 
 
 3. What is a respondentia bond 1 354 
 
 It is a loan upon the pledge of the cargo, though an hypothecation of
 
 164 KENT'S COMMENTARIES, [VOL. in. 
 
 both ship and cargo may be made in one instrument ; and generally, it is 
 only a personal obligation upon the borrower, and is not a specific lien 
 upon the goods, unless there be an express stipulation to that effect in the 
 bond, and it amounts at most, to an equitable lien on the salvage in case 
 of loss. The condition of the loan is, the safe arrival of the subject 
 hypothecated, and the entire principal, as well as interest, is at the risk of 
 the lender during the voyage; and if the subject arrives safe or if it shall 
 not have been injured, except by its own defect, or the fault of the mas- 
 ter or mariners, the borrower must return the sum borrowed, together with 
 the maritime interest agreed on, and for the repayment, the person of the 
 borrower is bound, as well as the property pledged. 
 
 4. When can the master of a ship take up money on respondentia or 
 bottomry ? 356 
 
 The general rule is, that this power exists only after the voyage has 
 commenced, and is to be exercised in some foreign port where the owner 
 does not reside. The master cannot hypothecate for a pre-existing debt, 
 and the necessity of the loan must be shown to have existed at the time it 
 was made, and that the master had no other means of raising the money 
 at maritime interest ; and when that fact is established, the misapplication 
 of it by the master, without the knowledge and assent of the lender, will 
 not effect its validity. 
 
 5. What if after money has been taken up on respondentia, and before 
 the risk commenced, the voyage is broken up ? 357 
 
 The marine interest depends entirely upon the risk, and therefore, if 
 the proposed voyage be abandoned before the risk has attached the 
 contract is turned into a simple and absolute loan at ordinary and legal 
 interest. 
 
 6. What if the borrower had not goods on board the ship to the value 
 of the sum borrowed ? 357 
 
 The contract, in case of loss, is reduced in proportion to the dimin- 
 ished value, and the borrower is bound at all events to return the surplus 
 of the sum borrowed with the ordinary interest. The maritime interest is 
 in a ratio to the maritime risk, or value of the goods shipped. 
 
 7. Why is it, that a bond fairly given at a foreign port, under pressure 
 of necessity, is entitled to priority of payment over one of a former date ? 
 358 
 
 The equity of it consists in this, that the last loan furnished the means 
 of preserving the ship, and without it, the former lenders would entirely 
 have lost their security, and therefore it supersedes a prior mortgage as 
 well as any other prior lien. 
 
 8. May the lender upon respondentia or b'ottomry, insure the money 
 lent? -358 
 
 He can insure the principal, but not his maritime interest.
 
 LEC. XLIX.] REDUCED TO QUESTIONS AND ANSWERS. 165 
 
 9. Will a constructive total loss discharge the borrower on bottomry ? 
 359 
 
 It will not. Nothing but an utter annihilation of the subject hypothe- 
 cated will discharge him. 
 
 10. What is the rule as to the liability of the lender on bottomry we 
 jespondentia to contribute in case of general average ? 360 
 
 In England, except on India risks, the lender does not contribute. 
 This is contrary to the maritime law of France and of other parts of 
 Europe, and in Louisiana we have a decision against it. The new French 
 law, contrary to the ordinance of 1681, charges the lender with simple 
 average, on partial losses, unless there be a positive stipulation to the con- 
 trary ; but such a stipulation to exempt him from gross or general average, 
 would be void and contrary to natural equity. 
 
 11. What if the ship or cargo be lost, not by perils of the sea, but by 
 default of the borrower or master ? 360 
 
 The hypothecation bond is forfeited and must be paid. 
 
 12. What if the ship be lost on the voyage, and the cargo forwarded 
 by another ship ? 360 
 
 The borrowers in that case must pay the debt. 
 
 13. Is a loan on bottomry or respondentia good, if the ship or goods be 
 already at sea when it is effected ? 361 
 
 It has been held good by the Supreme Court of the United States. 
 
 14. When does the maritime interest cease ? 362 
 
 After the risk has ceased by the safe arrival of the ship, marine in- 
 terest ceases, and gives place to ordinary legal interest, on the aggregate 
 amount of the debt due, consisting of the money lent with maritime 
 premium. 
 
 15. Are seamen's wages a legal subject for bottomry or respondentia 
 loans ? 363 
 
 They are not. 
 
 16. What if a bottomry contract be made payable to order or bearer ? 
 363 
 
 It is negotiable like a bill of exchange, and it is to be dealt with 
 and protested in like manner. Boulay Paty, 3. 97.
 
 166 KENT'S COMMENTARIES, [VOL. in. 
 
 LECTURE L. 
 OF INSURANCE OF LIVES AND AGAINST FIRE. 
 
 1. What is the nature of the contract of insurance upon lives ? 365 
 
 These are liberal contracts, and while they create an advantageous 
 investment of capital, they operate benevolently towards the public. Their 
 usual purpose is to provide a fund for creditors, or for family connexions 
 in case of death. The insurer, in consideration of a sum in gross, or of 
 periodical payments, undertakes to pay a certain sum, or an annuity, de- 
 pending upon the death .of a person whose life is insured. The insurance 
 is either for the whole term of life, or for a limited period. Such is the 
 nature of these contracts, that they are well calculated to relieve the more 
 helpless members of a family from a precarious dependence, resting upon 
 the life of a single person ; and they very naturally engage the attention 
 and influence the judgment of those thinking men, who have been accus- 
 tomed to reflect deeply upon the past, and to form just anticipations of the 
 future. 
 
 2. When did life insurance in England commence ? 367 
 
 With the Amicable Society, in the beginning of the last century ; and 
 in 1827, there were in the United Kingdom, forty- four life insurance 
 companies. 
 
 3. What is undertaken by the underwriter, on an insurance against 
 fire ? 370 
 
 He undertakes, in consideration of the premium, to indemnify the 
 insured against all losses in his houses, buildings, furniture, ships in port, 
 or merchandise, by means of accidental fire happening within a prescribed 
 period. 
 
 4. What is a sufficient interest in the property to support an insurance 
 against fire ? 371 
 
 A creditor may have a policy on the house and goods of his debtor, 
 upon which he has a lien or mortgage security. So, a trustee, or agent, 
 or factor, who has the custody of goods for sale on commission, may insure 
 them, and a bonafide equitable interest may be insured. 
 
 5. What is the insured bound in good faith to disclose to the insurer ? 
 373 
 
 Every fact material to the risk and within his knowledge, and which 
 if stated, would influence the mind of the insurer in making or declining 
 .the contract.
 
 LEG. LI.] REDUCED TO QUESTIONS AND ANSWERS. 167 
 
 6. What species of property are not deemed objects of insurance ? 373 
 
 Books of accounts, written securities, or evidence of debt, title deeds, 
 writings, money, or bullion. Nor are jewels, plate, medals, paintings, 
 statuary, sculptures, and curiosities included unless specified. t 
 
 7. What is the rule as to the assignment of policies ? 375 
 
 Fire policies usually contain a prohibition against the assignment of 
 them, without the previous consent of the company. But without this 
 clause, they are assignable in equity like other choses in action, though 
 to render the assignment of any value to the assignee, an interest in the 
 subject matter of the insurance must be assigned also. This restriction 
 upon assignments of the policy, applies only to transfers before a loss 
 happens, and it applies only to voluntary sales, and not to sales on execu- 
 tion. If buildings insured be mortgaged, the policy is ipso facto assigned 
 by the mortgage. 
 
 8. How are settlements of losses by fire made ? 375 
 
 They are made on the principle of particular average, and the esti- 
 mated loss is paid without abandonment of what has been saved. Dam- 
 ages and reasonable charges on removing at a fire, articles insured, are 
 covered by the policy. 
 
 9. How are losses certified ? 376 
 
 Upon oath, and the certificate of a magistrate, notary, or clergyman, 
 is made necessary to be procured in favour of the truth and fairness of 
 the statement of the loss, and a strict and literal compliance with the terms 
 of the conditions is held indispensable to the right of recovery. 
 
 LECTURE LI. 
 OF THE FOUNDATION OF TITLE TO LANDS. 
 
 1. Upon the introduction of the feudal tenures, what became a funda- 
 mental maxim of the English law in relation to title to land ? 378 
 
 That the king was the original proprietor of all the land in the king- 
 dom, and the only true source of title. In this country we have adopted 
 the same principle, and applied it to our own republican governments: and 
 it is a settled fundamental doctrine with us, that all valid individual title to
 
 168 KENT'S COMMENTARIES, [VOL. in. 
 
 land within the United States, is derived from the grant of our local gov- 
 ernments, or from the United States, or from the crown or royal chartered 
 governments, established here prior to the revolution. This doctrine was 
 declared in New York, in the case of Jackson v. Ingraham, and it was 
 held to be the settled rule, that the courts could not take notice of any title 
 not derived from our own state or colonial government, and duly verified 
 by patent. 
 
 2. By what right did the European nations claim to have dominion on 
 this continent? 378 
 
 By right of prior discovery, which discovery was considered to have 
 given to the government by whose subjects or authority it was made, a title 
 to the country, and the sole right of acquiring the soil from the natives, as 
 against all other European powers. Each nation claimed the right to 
 regulate for itself, in exclusion of all others, the relation which was to sub- 
 sist between the discoverer and the Indians. That relation necessarily 
 impaired, to a considerable degree, the rights of the original inhabitants, and 
 an ascendency was asserted in consequence of the superior genius of the 
 Europeans, founded on civilization and Christianity, and of their superior- 
 ity in the art of war. The European nations which respectively estab- 
 lished colonies in America, assumed the ultimate dominion to be in them- 
 selves, and claimed the exclusive right to grant a title to the soil, subject 
 only to the Indian right of occupancy. The natives were admitted to be 
 the rightful occupants of the soil, with a legal as well as a just claim to 
 retain possession of it, and to use it according to their own discretion, 
 though not to dispose of the soil at their will, except to the government 
 claiming the right of pre-emption. The practice of Spain, France, Hol- 
 land, and England proved the very general recognition of the claim and 
 title to American territories given by discovery. The United States have 
 adopted the same principle, and their exclusive right to extinguish the In- 
 dian title by purchase or conquest, arid to grant the soil, and exercise such 
 a degree of sovereignty as circumstances required, has never been judici- 
 ally questioned. 
 
 LECTURE LII. 
 OF INCORPORAL HEREDITAMENTS. 
 
 1. What are corporal hereditaments? 401 
 
 They are confined to land, which according to Lord Coke, includes 
 not only the ground or soil, but every thing which is attached to the earth,
 
 LEG. LII.] REDUCED TO QUESTIONS AND ANSWERS. 169 
 
 whether by the course of nature, as trees, herbage, and water, or by the 
 hand of man, as houses, and other buildings ; and which has an indefinite 
 extent upwards as well as downwards, so a^to include every thing terres- 
 trial under or over it. 
 
 2. What are incorporeal hereditaments ? 402 
 
 Certain inheritable rights, which are not, strictly speaking of a cor- 
 poreal nature or land, although they are by their own nature, or by use, 
 annexed to corporeal inheritances, and are rights issuing out of them, or 
 concern them. They pass by deed, without livery, because they are not 
 tangible rights. 
 
 3. What are the principal incorporeal rights which .subsist in our law ? 
 403 
 
 1. Commons. 2. Ways, easements, and aquatic rights. 3. Offices. 
 4. Franchises. 5. Annuities. 6. Rents. 
 
 4. What is a right of common ? 403 
 
 It is a right which one man has in the lands of another. The object 
 of which is to pasture his cattle, or provide necessary fuel for his family, 
 or for repairing his necessary implements of husbandry. Common of pas- 
 ture is known as common of pasture appendant, and common of pasture 
 appurtenant. Common appendant is founded on prescription, and is regu- 
 larly annexed to arable land. It authorized the owner or occupier of the 
 arable land to put commonable beasts upon the waste grounds-of the 
 manor. Common appurtenant may be annexed to any kind of land, and 
 may be created by grant as well as prescription. It allowed the owner 
 to put in other beasts than such as plough or manure the land. Common 
 of estrovers may be equally appendant or appurtenant. 
 
 5. What is a right of way ? 419 
 
 It is a right of private passage over another man's ground, and may 
 arise either by grant or prescription. It may arise from necessity in sev- 
 eral respects. Thus, if a man sells land to another which is wholly sur- 
 rounded by his own land, in this case the purchaser is entitled to a right 
 of way over the other's ground to arrive at his land. This principle was 
 carried so far in a modern case, (8 Term Rep. 50,) as to be applied to a 
 trustee selling land he held in trust, and to which there was no access 
 but over the trustee's own land. 
 
 6. What is the law as to riparian rights ? 427 
 
 It is a settled principle of the English law, that the right of the soil 
 of owners of land bounded by the sea, or on navigable rivers, where the 
 tide ebbs and flows, extends to high-water mark ; and the shore below the 
 common high-water mark, belongs to the public ; and in England the 
 crown, and in this country the people, have the absolute proprietary inter- 
 est in the same, though it may, by grant or prescription, become private 
 22
 
 170 KENT'S COMMENTARIES, [VOL. in, 
 
 property. But grants of land, bounded on rivers, or upon the margins of 
 the same, above tide water, carry the exclusive right and title of the grantee 
 to the centre of the stream ; fmd the public, in cases where the river is 
 navigable for boats and rafts, have an easement therein, or a right of 
 passage as a public highway. 
 
 7. What is the law in respect to public highways 1 432 
 
 It is the same as that of fresh-water rivers, and the analogy is per- 
 fect, as concerns the right of soil. The presumption is that the owners 
 of the land on each side go to the centre of the road, and they have the 
 exclusive right to the soil, subject to the right of passage in the public. 
 Being owners of the soil, they have a right to all ordinary remedies for 
 the freehold. 
 
 8. What are servitudes? 434 
 
 Real rights existing in the property of another. Like incorporeal here- 
 ditaments, they have been held not to pass without grant. By virtue of 
 such a right, the proprietor of the estates charged is bound to permit, or 
 not to do, certain acts in relation to his estate, for the utility or accommo- 
 dation of a third person, or of the possession of an adjoining estate. 
 
 9. What is the rule in respect to running waters 1439 
 
 That no proprietor has a right to use the water, to the prejudice of 
 other proprietors, above or below him, unless he has a prior right to divert 
 it, or a title to some exclusive enjoyment. He has no property in the water 
 itself, but a simple usufruct while it passes along. Aqua currit et debet 
 currere, is the language of the law. 
 
 10. How may easements be lost ? 447 
 
 A right acquired by use may be lost by non-user, and an absolute dis- 
 continuance of the use affords a presumption of the extinguishment of 
 the right in favour of some other adverse right. As an enjoyment for 
 twenty years is necessary to found a presumption of a grant, the general 
 rule is, that there must be a similar non-user to raise the presumption of a 
 release. 
 
 11. What is the distinction between an easement and a license ? 452 
 
 A claim for an easement must be founded upon grant by deed or writing, 
 or upon prescription which supposes one ; for it is a permanent interest 
 in another's land, with a right at all times to enter and enjoy it. But a 
 license is an authority to do a particular act, or series of acts, upon an- 
 other's land, without possessing any estate therein. It is founded on per- 
 sonal confidence, and is not assignable. 
 
 12. What are annuities ? 460 
 
 An annuity, says Lord Coke, is a yearly sura stipulated to be paid to
 
 LEC. LII.] REDUCED TO QUESTIONS AND ANSWERS. 171 
 
 another, in fee, or for life, or for years, and chargeable only on the per- 
 son of the grantor. If it be agreed to be paid to the annuitant and his 
 heirs, it is a personal fee, and transmissible by descent, like a personal 
 fee. It is chargeable upon the person of the grantor, for if the annuity 
 was made chargeable upon land, it would be a rent-charge. 
 
 13. What are rents ? 460 
 
 Rent is a certain profit in money, provisions/chattels, or labor, issuing 
 out of lands and tenements, in retribution for the use, and it cannot issue 
 out of a mere privilege or easement. There were, at common law, accord- 
 ing to Littleton, three kinds of rent, viz. rent-service, rent-charge, and 
 rent-seek. 
 
 14. What was rent-service ? 461 
 
 Where the tenant held his land by fealty, or other corporeal service, 
 and a certain rent. A right of distress was inseperably incident to this 
 rent. 
 
 15. What is a rent-charge, or fee-farm rent 1 461 
 
 Where the rent is created by deed, and the fee granted ; and as there 
 is no fealty annexed to such a grant of the whole estate, the right of dis- 
 tress is not an incident, and it requires an express power of distress to be 
 annexed to the grant, which gives it the name of a rent-charge. 
 
 16. What was rent-seek, siccus, or barren rent? 461 
 
 It was rent reserved by deed without any clause of distress, and in a 
 case in which the owner of the rent had no future interest or reversion in 
 the land. 
 
 17. What is the rule as to whom rent must be reserved? 463 
 
 That it must be reserved to him from whom the land proceeded, or his 
 lawful representatives, and it cannot be reserved to a stranger. 
 
 18. What will discharge the tenant from paying the rent ? 464 
 
 If the tenant be evicted by title paramount before the rent falls due, he 
 will be discharged from the payment. But if the lawful eviction by para- 
 mount title, be of part only of the devised premises, the rent is apportion- 
 able, and the eviction a bar pro tanto. So, if there be an actual expulsion 
 of the tenant from the whole or part, by the lessor before the rent becomes 
 due, the entire rent is suspended. 
 
 19. What is the rule in cases where the premises are destroyed, as by 
 fire ? 466 
 
 That upon an express contract to pay rent, the loss of the premises by 
 fire or inundation, or external violence, will not exempt the party from 
 paying the rent.
 
 172 KENT'S COMMENTARIES, [VOL. in. 
 
 20. What is the remedy for the non-payment of rent? 476 
 
 When the rent is due and unpaid, and when no judgment in a personal 
 action has been had for the recovery of the same, the landlord, upon de- 
 mand, may enter immediately, by himself or his agent, upon the demised 
 premises, and distrain any goods and chattels that are to be found there, 
 belonging to the tenant or others. 
 
 21. In what cases are articles not distrainable ? 477 
 
 Articles temporarily placed upon land, by way of trade, and belonging 
 to third persons ; a horse at a public inn, or sent to a liyery stable to be 
 taken care of, or corn at a mill, or cloth at a tailor shop, or a grazier's cat- 
 tle put upon the land for the night, on the way to market, or goods depo- 
 sited in a warehouse for sale or on storage, in the way of trade, or goods 
 of a principal in the hands of a factor are not distrainable for rent. Nor 
 can beasts of the plough, sheep, or implements of a man's trade be taken 
 for rent, so long as other property can be found. 
 
 LECTURE LIII. 
 OF THE HISTORY OF FEUDAL TENURE. 
 
 1. To what source do we trace the origin of the feudal system 1 491 
 
 To the Gothic or northern nations. Some authors have supposed that 
 the sources of feuds were not confined to those nations. And Neibuhr, 
 in his History of Rome, vol. I. 99, declares the relation of patron and cli- 
 ent to have been the feudal system in its noblest form. The better and 
 prevailing opinion, however, is, that the origin of the feudal system is es- 
 sentially to be attributed to the northern Gothic conquerors of the Roman 
 Empire. It was part of their military policy, and devised by them as the 
 most effectual means to secure their conquests. The chieftain, as head or 
 representative of his nation, allotted portions of the conquered lands, in 
 parcels, to his principal followers, and they, in their turn, gave smaller 
 parcels to their subtenants or vassals, and all were granted on the same 
 conditions of fealty and military service. The rudiments of the feudal 
 law have been supposed, by many modern feudists, to have existed in the 
 usages of the ancient Germans, as they were studied and described by 
 Caesar and Tacitus. The traces of the feudal policy were first distinctly 
 perceived among the Franks, Burgundians, and Lombards, after they had 
 invaded the Roman provinces. They generally permitted the Roman in- 
 stitutions to remain in the cities and towns, but they claimed a proportion
 
 LEC. LIU.] REDUCED TO QTJESTIOXS AND ANSWERS. 173 
 
 of the land and slaves of the provincials, and brought their own laws and 
 usages with them. The conquered lands which were appropriated by 
 military chiefs to their faithful followers, had the condition of future mili- 
 tary service annexed, and this was the origin of fiefs and. feudal tenures. 
 The same class of persons who had been characterized as volunteers or 
 companions in Germany, became loyal vassals under the feudal grants. 
 These grants which were at first called benefices, were, in their origin, for 
 life, or perhaps only for a term of years. The vassal had a right to use 
 the land, and take the profits, and was bound to render in return such feu- 
 dal duties and seryjces as belonaed to military tenure. The property of 
 the soil remainecl in the lord from whom the grant was received. The 
 king or lord had the dominium rectum, and the vassal or feudatory the do- 
 minium utile. Prior to the introduction of the feudal system, lands were 
 allodial, and held in free and absolute ownership in like manner as per- 
 sonal property was held. Allodial land was not suddenly but very gradu- 
 ally supplanted by the law of tenures. They were never so entirely in- 
 troduced as to abolish all vestiges of allodial estates. The precise time 
 when benefices became hereditary is uncertain. They began to be here- 
 ditary in the age of Charlemagne, who facilitated the conversion of allo- 
 dial into feudal estates. The perpetuity of fiefs was established earlier in 
 France than in Germany; but throughout the continent it appears they 
 had become hereditary, and accompanied with the right of primogeniture, 
 and all the other incidents peculiar to feudal governments, long before the 
 era of the Norman conquest. England was distinguished above every 
 part of Europe for the universal establishment of feudal tenures. There 
 is no presumption or admission in the English law of allodial lands. 
 They are all held by some feudal tenure. There were traces of feudal 
 grants, and of the relation of lord and vassal in the time of the Anglo- 
 Saxons, but the formal and regular establishment of feudal tenures in their 
 genuine character, and with all their fruits and services, was in the reign 
 of William the Conqueror. The tenures which were authoritively estab- 
 lished in England in the time of the Conqueror were principally of two 
 kinds, according to the services annexed. They were either tenures by 
 knight service, in which the services, though occasionally uncertain, were 
 altogether of a military nature ; or tenures by socage, in which the services 
 were defined and certain, and generally of a predial or pacific nature. 
 
 The only feudal fictions and services which can be presumed to exist in 
 these United States, consist of the feudal principle, that the lands are held 
 of some superior lord, to whom the obligation of fealty, and to pay a de- 
 terminate rent, are due. 
 
 2. What is understood by the word fealty "fidelitatis <"' 510 
 
 An oath of fidelity to the lord, and, to use'the words of Littleton, when 
 a freeholder doth fealty to his lord, he shall lay his right hand upon a book, 
 and shall say, " Know ye this, my lord, that I shall be faithful and true 
 unto you, and faith to you shall bear, for the lands which I claim to hold 
 of you, and that I shall lawfully do to you the customs and services which 
 I ought to do, at the terms assigned : so help me God and his Saints."
 
 174 
 
 KENT S COMMENTARIES, 
 
 [VOL. III. 
 
 This oath of fealty every where followed the progress of the feudal sys- 
 tem, and created all those interesting ties and obligations between the 
 lord and his vassal, which, in the simplicity of the feudal ages, they con- 
 sidered to be their truest and greatest glory. It was the parent of the 
 oath of allegiance which is exacted by sovereigns in modern times. 
 
 Lands held by socage tenure (and all lands granted before the revolu- 
 tion are so held) would seem, in theory, to have been chargeable with this 
 oath of fealty. 
 
 Sir Mathew Hale says that the oath of fealty may be due to an inferior 
 lord, and then the oath must have the saving, salvafde^et ligentia domini 
 regis. It may be exacted in England by landlords, and lords of manors, 
 from tenants other than tenants at will, or from year to year. 
 
 END OF VOLUME THIRD.
 
 LEG. XLIV.] REDUCED TO QUESTIONS AND ANSWERS. 175 
 
 VOLUME IV. 
 OF THE LAW CONCERNING REAL PROPERTY. 
 
 LECTURE XLIV. 
 OF ESTATES IN FEE. 
 
 The perusal of the former volumes has prepared the student to enter 
 upon the doctrine of real estates, which is by far the most artificial and 
 complex branch of our municipal law. 
 
 In treating of the doctrine of real estates, it will be most convenient, 
 as well as most intelligible, to employ the established technical language 
 to which we are accustomed, and which appertains to the science. 
 Though the law in some of the United States, discriminates between an 
 estate in pure allodium, and an estate in fee simple absolute, these estates 
 mean essentially the same thing ; and the terms may be used indiscrimi- 
 nately to describe the most ample and perfect interest which can be owned 
 in land. 2 
 
 1 . Has not the words seisin and fee, been always used in New York ? 
 2 
 
 They have, whether the subject was lands granted before or since the 
 revolution; though by the act of 1787, the former were declared to be held 
 by the tenure of free and common socage, and the latter in free and pure 
 allodium, but this was an unnecessary distinction in legal phraseology as 
 applied to estates ; and the distinction lay dormant in the statute, and was 
 utterly lost and unfounded in practice. The technical language of the 
 common law, is too deeply rooted in our usages and institutions, to be 
 materially affected by legislative enactments. 
 
 In Connecticut and Virginia, the terms seisin and fee, are also ap- 
 plied to all estates of inheritance, though the lands in those states are de- 
 clared to be allodial, and free from every vestige of feudal tenure. 
 
 2. What have the New York revised statutes declared on this subject ? 
 3 
 
 That all lands within the state are allodial, and the entire and abso- 
 lute property vested in the owners, according to their respective estates. 
 All feudal tenures of every description, with their incidents are abolished, 
 subject, nevertheless, to the liability to escheat, and to any rents or servi- 
 ces certain, which had been, or might be, created or reserved ; and to
 
 176 KENT'S COMMENTARIES, [VOL. iv. 
 
 avoid the inconvenience and absurdity of attempting a change in the 
 technical language of the law, it was further declared, that every estate of 
 inheritance, notwithstanding the abolition of tenure, should continue to be 
 called a fee simple, or fee ; and that every such estate, when not defeasible 
 or conditional, should be termed a fee simple absolute, or an absolute fee. 
 
 3. What is the proper meaning of a " fee," as now used in this coun- 
 try ? 4 
 
 An estate of inheritance in law, belonging to the owner, and trans- 
 missible to his heirs. No estate is deemed a fee, unless it may continue 
 forever. 
 
 4. What is an estate called, whose duration is circumscribed by one or 
 more lives in being ? 4 
 
 A freehold. Though the limitation be to a man and his heirs, during 
 the life or widowhood of B., it is not an inheritance or fee, because the 
 event must necessarily take place within the period of a life. It is merely 
 a freehold with a descendible or transmissible quality ; and the heir takes 
 the land as a descendible freehold. 
 
 5. Which is the most simple division of estates as laid down in the 
 books ? 4 
 
 That mentioned by Sir William Blackstone, into inheritances absolute 
 or fee simple, and inheritances limited ; and these limited fees he subdi- 
 vides into qualified and conditional fees. This was according to Lord 
 Coke's division. 
 
 6. How has Mr. Preston, in his treatise on estate, divided fees ? 4 
 
 Into fees simple, fees determinable, fees qualified, fees conditional, 
 and fees tail. 
 
 7. What is a fee simple ? 5 
 
 It is a pure inheritance, clear of any qualification or condition, and it 
 gives a right of succession to all the heirs generally, under the restriction 
 that they must be of the blood of the first purchaser, and of the blood of 
 the person last seized. It is an estate of perpetuity, and confers an un- 
 limited power of alienation, and no person is capable of having a greater 
 interest in land. 
 
 8. Is, or is not the word heirs at common law, necessary to be used, if 
 the estate is to be created by deed ? 4 
 
 It is. 
 
 9. If a man purchase lands to himself for ever, or to him and his as- 
 signs for ever, what will he take? 5, 6 
 
 He takes but an estate for life.
 
 LEG. LIV.] REDUCED TO QUESTIONS AND ANSWERS. 177 
 
 10. But if the intent of the parties was clearly expressed in the deed, 
 would not a fee then pass ? 6 
 
 It would not, without the word heirs. The rule was founded origi- 
 nally on principles of feudal policy, which no longer exist, and it has now 
 become entirely technical. A feudal grant was, stricti juris, made in con- 
 sideration of the personal abilities of the feudatory, and his competency 
 to render military service ; and it was consequently confined to the life of 
 the donee, unless there was an express provision that it should go to his 
 heirs. 
 
 1 1 . Has not the rule for a long time been controlled by a more liberal 
 policy ? 6 
 
 It has, and it is counteracted in practice by other rules equally artifi- 
 cial in their nature, and technical in their application. 
 
 12. Does it jpply to coveyances by fine ? 6 
 
 It does not, where the fine is in the nature of an action. 
 
 13. Does the rule apply to a common recovery? 6 
 It does not. 
 
 14. Does it apply to a release by way of extinguishment, as of a com- 
 mon of pasture ? 6 
 
 It does not ; nor to a partition between joint-tenants, coparceners, 
 and tenants in common ; nor to releases of right to land by way of dis- 
 charge or passing the right, by one joint-tenant or coparcener to another. 
 
 15. What does the released take, in taking a distinct interest in his 
 separate part of the land ? 6 
 
 He takes the like estate in quantity, which he had before in common. 
 
 16. How do grants to corporations aggregate pass the fee? 7 
 
 Grants to corporations pass the fee without the words heirs or suc- 
 cessors, because in judgment of law a corporation never dies, and is im- 
 mortal by means of perpetual succession. 
 
 17. Will a fee pass by will without the word heirs ? 7 
 
 It will, if the intention to pass a fee can be clearly ascertained from 
 the will, or a fee be necessary to sustain the charge or trust created by the 
 will. It is likewise understood, that a court of equity will supply the omis- 
 sion of words of inheritance ; and in contracts to convey, it will sustain 
 the right of the party to call for a conveyance in fee, when it appears to 
 have been the intention of the contract to convey a fee. 
 23
 
 178 KENT'S COMMENTARIES, [VOL. i\% 
 
 1 8. But has not the statute law of some of the states abolished the in- 
 flexible rule of the common law? 7 
 
 It has. 
 
 19. What is a qualified, base, or determinable fee ? 9 
 
 It is an interest which may continue for ever, but the estate is liable to 
 be determined by some act or event, circumscribing its continuance or ex- 
 tent. Though the object on which" it rests for perpetuity may be perishable 
 or transitory, yet such estates are deemed fees, because, it is said, they have 
 a possibility of enduring for ever. A limitation to a man and his heirs, so 
 long as A. shall have heirs of his body ; or to a man and his heirs, tenants 
 of the manor of Dale ; or till the marriage of B. ; or so long as St. Paul's 
 church shall stand, or a tree shall stand, are a few of the many instances 
 given in the books, in which the estate will descend to the heirs, but con- 
 tinue no longer than the period mentioned in the respective limitations or 
 when the qualification annexed to it is at an end. 
 
 20. What if the event marked out as the boundary to the time of the 
 continuance of the estate, becomes impossible ? 9 
 
 The estate then ceases to be determinable, and changes into a simple 
 and absolute fee ; but until that time, the estate is in the grantee, subject 
 only to a possibility of reverter in the grantor. 
 
 21. What renders the estate a fee, and not merely a freehold? 9 
 
 The uncertainty of the event, and the possibility that the fee may last 
 for ever 
 
 22. What are determinable fees, and how long do they continue descend- 
 ible inheritances ? 9 
 
 All fees liable to be defeated by an executory devise, are determina- 
 ble fees, and they continue descendible inheritances until they are dischar- 
 ged from the determinable quality annexed to them, either by the happen- 
 ing of the event, or by a release. 
 
 23. What are these qualified and determinable fees termed? 9 
 
 They are likewise termed base fees, because their duration depends 
 upon the occurrence of collateral circumstances, which qualify and debase 
 the purity of the title. 
 
 24. May a tenant in tail, by a bargain and -sale, lease and release, or 
 covenant to stand seized, create a base fee, which will not determine until 
 the issue in tail enters ? 9 
 
 Yes, he may. 
 
 25. If the owner of a determinable fee conveys in fee, what follows 
 the transfer, and on what is this founded? 10
 
 LBC. LIV.] REDUCED TO QUESTIONS AND ANSWERS. 179 
 
 The determinable quality of the estate follows the transfer ; and this 
 is founded upon the sound maxim of the common law, that nemo potestplus 
 juris in alium trans fere quam ipse habet. 
 
 26. What rights and privileges over the estate has the proprietor of a 
 qualified fee T 10 
 
 The same as if he were a tenant in fee simple. 
 
 27. What is a conditional fee ? 10 
 
 It is one which restrains the fee to some particular heirs exclusive of 
 others, as to the heirs of a man's body, or to the heirs male of his body. 
 
 28. How was this fee construed at common law ? 10 
 
 It was construed to be a fee simple, on condition that the grantee had 
 the heirs prescribed. 
 
 29. What if the grantee died without issue ? 10 
 Then the lands reverted to the grantor. 
 
 30. What if he had the specified issue ? 1 1 
 
 The condition was supposed to be performed, and the estate became 
 absolute, so far as to enable the grantee to alien the land, and bar not only 
 his own issue, but the possibility of a reverter. 
 
 31. Could the tenant of the fee simple conditional by feoffment have 
 bound the issue of his body before issue had ? 11 
 
 He could. 
 
 32. After issue born, could the tenant bar the donor and his heirs of their 
 possibility of a reversion ? 1 1 
 
 Yes, but the course of descent was not altered thereby. 
 
 33. How was it before the statute de donis? 11 
 
 Before the enactment of the statute so called, a fee on condition that 
 the donee had issue of his body, was, in fact a fee tail and the limitation 
 was not effaced by the birth of issue. 
 
 34. What effect had the statute de donis, on the birth of issue, and how 
 was it considered by the courts of justice 1 12 
 
 It took away the power of alienation on the birth of issue, and the 
 courts of justice considered that the estate was divided into a particular 
 estate in the donee, and a reversion in the donor. 
 
 35. When the donee had a fee simple before, what had he by the sta- 
 tute 1 12 
 
 An estate tail.
 
 180 KENT'S COMMENTARIES, [VOL. iv. 
 
 36. Under this division of the estate, could or would not the donee bar 
 or charge his issue ? 12 
 
 He could not. 
 
 37. Were estates tail liable to forfeiture, for treason or felony ? 13 
 
 No. Nor were they chargeable with the debts of the ancestor, nor 
 bound by alienation. 
 
 38. To whom were they beneficial, and to whom injurious ? 13 
 
 They were very conducive to the security and power of the great 
 landed proprietors and their families, but very injurious to the industry and 
 commerce of the nation. 
 
 39. When was relief first obtained against this great national griev- 
 ance ? 13 
 
 It was not until Taltarum's case, 12 Edw. IV. that relief was obtained, 
 and it was given by a bold and unexampled stretch of thepower of judi- 
 cial legislation. 
 
 40. What then, did the judges resolve upon? 13 
 
 Upon consultation, they resolved, that an estate tail might be cut off 
 and barred, by a common recovery, and that by reason of the intended 
 recompense, the common recovery was not within the restraint of the 
 statute de donis. 
 
 41. Were these recoveries afterwards taken notice of? 13 
 
 They were, and indirectly sanctioned, by several acts of Parliament, 
 and have, ever since their application to estates tail, been held as one of 
 the lawful and established assurances of the realm. 
 
 42. How are they now considered ? 13 
 
 They are now considered merely in the light of a conveyance on re- 
 cord, invented to give a tenant in tail, an absolute power to dispose of his 
 estate, as if he were a tenant in fee simple ; and estates tail in England, 
 for a long time past, have been reduced to almost the same state, even 
 before issue born, as conditional fees were at common law, after the con- 
 dition was performed by the birth of issue. 
 
 43. What does a common recovery remove ? 13 
 
 It removes all limitations upon an estate tail, and an absolute, unfet- 
 tered, pure fee-simple, passes as the legal effect and operation of a com- 
 mon recovery.
 
 LEC. LIV.] REDUCED TO QUESTIONS AND ANSWERS. 181 
 
 44. Is it, or is it not, the only mode of conveyance in England, by 
 which a tenant in tail, can effectually dock the entail ? 14 
 
 It is. 
 
 45. If he conveys by deed, what only does he convey ? 14 
 
 A base or avoidable fee, and he will not exclude his heirs per formam 
 doni. 
 
 46. What only does he bar even by fine ? 14 
 His issue only, and not subsequent remainders. 
 
 47. What alone is it, that passes an absolute title ? 14 
 The common recovery. ' 
 
 48. Did not estates tail subsist in full force before our revolution ? 14 
 They did. 
 
 49. Has not the doctrine of estates tail, and the complex and multifa- 
 rious learning connected with it, become quite obsolete in most parts of 
 the United States ? 14 
 
 Yes it has, in Virginia, estates tail were abolished as early as 
 1776 ; in New Jersey, in the years 1784 and 1786 ; and in New York, 
 as early as 1782, and all estates tail were turned into estates in fee -simple 
 absolute. So, in North Carolina, Kentucky, Tennessee, Georgia, and 
 Missouri, estates tail have been abolished, by being converted by statute 
 into estates in fee simple. In the states of Vermont, Indiana, Illinois, 
 South Carolina, and Louisiana, they do not appear to be known to their 
 laws, or even to have existed ; but in several of the other states, they are 
 partially tolerated, and exist in a qualified degree. 
 
 50. What has been the fate of conditional fees at common law ? 16 
 
 They have generally partaken of the fate of estates in fee tail, and 
 have not been revived in this country. 
 
 51. Does, or does not the general policy of this country, encourage re- 
 straints upon the power of alienation of land? 17 
 
 No. It does not. 
 
 52. Have the New York revised statutes enlarged or abridged the pre- 
 valing extent of executory limitations ? '17 
 
 They have considerably abridged them. 
 
 53. Have not entails, under certain modifications, been retained in va- 
 rious parts of the United States? 19 
 
 They have, with increased power over the property, and greater fa-
 
 182 KENT'S COMMENTARIES, [VOL. iv. 
 
 cility of alienation. The desire to preserve and perpetuate family influ- 
 ence, and property, is very prevalent with mankind, and is deeply seated 
 in the affections. 
 
 This propensity is attended with many beneficial effects. But if the 
 doctrine of entails be calculated to stimulat eexertion and economy, by the 
 hope of placing the fruits of talent and industry in the possession of a 
 long line of lineal descendants, undisturbed by their folly or extravagance, 
 it has a tendency on the other hand, to destroy the excitement to action in 
 the issue in tail, and to leave an accumulated mass of property in the 
 hands of the idle and vicious. 
 
 Dr. Smith insisted, from actual observation, that entailments were un- 
 favorable to agricultural improvement. The practice of perpetual entails 
 is carried to a great extent in Scotland, and that eminent philosopher ob- 
 served, half a century ago, that one-third of the whole land of the country 
 was loaded with the fetters of a strict entail ; and it is understood that 
 additions are every day making to the quantity of land in tail, and that they 
 now extend over half the country. Some of the most distinguished of 
 the Scotch statesmen and lawyers have united in condemning the policy 
 of perpetual entails, as removing a very powerful incentive to preserving 
 industry and honest ambr.ion. 
 
 54. What says Mr. Gibbon on the simplicity of the civil law ? 19 
 
 It is said by him, to have been a stranger to the long and intricate 
 system of entails ; and yei the Roman trust settlements, or fidei commissa, 
 were analogous to estates tail. When an estate was left to an heir in 
 trust, to leave it at his death to his eldest son, and so on by way of sub- 
 stitution, the person substituted corresponded in a degree to the English 
 issue in tail. 
 
 55. What is it also termed by Mr. Gibbon ? 20 
 
 A partial, perplexed, declamatory law, which, by an abuse of the 
 novel, (159. c. 2. Justinian,) stretched the fidei commissa to the fourth de- 
 gree. 
 
 56. How far were entails formerly permitted to extend in France 1 20 
 
 To the period of three lives only ; but in process of time, they gained 
 ground, and trust settlements, says the ordinance of 1747, were extended 
 not only to many persons successively, but to a long series of generations. 
 That new kind of succession or entailment was founded on private will, 
 which had usurped the place of law, and established a new land of juris- 
 prudence. It led to numerous and subtle questions, which perplexed the 
 tribunals, and the circulation of property was embarassed. Chancellor 
 D'Aguesseau prepared the ordinance of 1747, which was drawn with 
 great wisdom, after consultation with the principal magistrates %f the 
 provincial parliaments, and the superior counsels of the realm, and re- 
 ceiving the exact reports of the state of the local jurisprudence on the 
 subject. It limited the entail to two degrees, counted per capita, between
 
 LEC. LV.] REDUCED TO QUESTION'S AND ANSWERS. 183 
 
 the maker of the entail and the heir ; and, therefore, if the testator made 
 A. his devisee for life, and after the death of A. to B., and after his death 
 to C., and after his death to D., &c., and the estate should descend from 
 A. to B., and from B. to C., he would hold it absolutely, and the remain- 
 der over to D. would be void. But the code Napoleon annihilated the miti- 
 gated entailments allowed by the ordinance of 1747, and declared all sub- 
 stitutions or entails to be null and void, even in respect to the first donee. 
 
 LECTURE LV. 
 OF ESTATES FOR LIFE. 
 
 1. Does an estate of freehold apply equally to an estate of inheritance ; 
 and to what does Sir William Blackstone confine freehold estate ? 23 
 
 It does apply in both cases, and Sir William Blackstone confines the 
 description of a freehold estate simply to the incident of livery of seisin, 
 which applies to estates of inheritance and estates for life ; and as those 
 estates were the only ones which could not be conveyed at common law 
 without the solemnity of livery of seisin, no other estates were properly 
 freehold estates. 
 
 2. What may justly be denominated a freehold ? 24 
 
 Any estate of inheritance, or for life, in real property, whether it be 
 a corporeal or incorporeal herediament, is justly entitled to that appellation. 
 
 3. What, by the ancient law, did a freehold interest confer upon the 
 owner? 24 
 
 A variety of valuable rights and privileges. He became a suitor of 
 the courts, and a judge in the capacity of a juror ; he was entitled to vote 
 for members of parliament, and to defend his title to the land ; as owner 
 of the immediate freehold, he was a necessary tenant to the preecipe in 
 a real action, and he had a right to call in the aid of the reversioner or 
 remainder-man, when the inheritance was demanded. These rights give 
 him importance and dignity as a freeholder and freeman. 
 
 4. How were estates for life divided ? 24 
 
 Into conventional and legal estates. The first are created by the 
 act of parties, and the second by the operation of law. 
 
 5. What were estates for life, at common law ? 24
 
 184 KENT'S COMMENTARIES, [VOL. iv. 
 
 Freehold estates of a feudal nature, inasmuch as they were conferred 
 by the same forms and solemnity as estates in fee, and were held by fealty, 
 services agreed on between the lord and tenant. 
 
 6. In what two ways may life estates be created? 25 
 
 1. By express words, as if A. conveys land to B. for the term of his 
 natural life. 2. They may arise by construction of law, as if A. conveys 
 land to B. without specifying the time of duration, and without words of 
 limitation. In this last case, B. cannot have an estate in fee, according to 
 the English law, and according to the law of those parts of the United 
 States which have not altered the common law in this particular, but he 
 will take the largest estate which can possibly arise from the grant, and 
 that is an estate for life. 
 
 7. Of what two kinds are life estates ? 25 
 
 Either for a man's own life, or for the life of another person, and in this 
 last case, it is termed an estate per autre vie, which is the lowest species 
 of freehold, and esteemed of less value than an estate for one's own life. 
 
 8. How has the law in this respect proceeded ? 25 
 
 It has proceeded upon the known principles of human nature, for, in 
 the ordinary opinion of mankind, as well as in the language of Lord Coke, 
 " an estate for a man's own life is higher than for another man's life." 
 
 9. What third branch of life estate may also be added ? 25 
 
 An estate for the term of the tenant's own life, and the life of one or 
 more third persons. In this case, the tenant for life has but one freehold 
 limited to his own life, and the life of the other party or parties. 
 
 10. May not these estates be made to depend upon a contingency, 
 which can happen and determine the estate before the death of the gran- 
 tee ? 25 
 
 Yes. Thus if an estate be given to a woman dum sola, or durante 
 viduitate, or to a person so long as he shall dwell in a particular place, or 
 for any other indeterminate period, as a grant of an estate to a man until 
 he shall have received a given sum out of the rents and profits ; in all 
 these cases, the grantee takes an estate for life, but one that is determina- 
 ble upon the happening of the event on which the contingency depended. 
 If the tenant for the life of B. died in the lifetime of B., the estate was 
 open to any general occupant during the life of B. ; but if the grant was 
 to A. and his heirs during the life of B., the heir took it as a special oc- 
 cupant. 
 
 11. How in New York is an estate per outer vie deemed, whether 
 limited to heirs or otherwise ? 26 
 
 It is deemed a freehold only during the life of the grantee or devisee, 
 and after his death it is deemed a chattel real.
 
 LEC. LV.] REDUCED TO QUESTIONS AND ANSWERS. 185 
 
 12. What is tenancy by the curtesy ? 26 
 
 It is an estate for life, created by the act of the law. When a man 
 marries a woman, seised, at any time during the coverture, of an estate 
 of inheritance, in severally, in coparcenary, or in common, and hath issue 
 born alive, and which might by possibility inherit the same estate as heir 
 to the wife, and the wife dies in the lifetime of the husband, he holds the 
 land during his life, by the curtesy of England ; and it is immaterial 
 whether the issue be living at the time of the seisin, or at the death of 
 the wife, or whether it was born before or after the seisin. 
 
 13. How in South Carolina is tenancy by curtesy, eo nomine? 28 
 
 It has ceased by the provision of an act in 1794, relative to the distri- 
 bution of intestates' estates, which gives to the husband surviving his wife 
 the same share of her real estate as she would have taken out of his, if 
 left a widow, and that is either one inoiety or one-third of it, in fee, ac- 
 cording to circumstances. 
 
 14. How in Georgia ? 29 
 
 In Georgia it does not exist; because all marriages since 1785, vest 
 the real equally with the personal estate in the husband. 
 
 15. What four things are requisite to an estate by the curtesy ? 29 
 
 1. Marriage. 
 
 2. Actual seisin of the wife. 
 
 3. Issue. 
 
 4. Death of the wife. 
 
 16. Does the law vest the estate in the husband on the death of the 
 wife, without entry ? 29 
 
 It does. 
 
 17. When is his estate initiate and when consummate ? 29 
 
 His estate is initiate on issue had, and consummate on the death of 
 the wife. 
 
 18. How must the wife, according to the English law, have been seised 
 to entitle the husband to his curtesy 1 29 
 
 In fact and in deed, and not merely of a seisin in law of an estate of 
 inheritance. 
 
 19. What is the law of curtesy in Connecticut? 30 
 
 The law of curtesy in that state, is made to symmetrize with other parts 
 of their system, and ownership without seisin, is sufficient to govern the 
 descent or devise of real estate. 
 24
 
 186 KENT'S COMMENTARIES, [VOL. iv' 
 
 20. Could the husband at common law be tenant by the curtsey of a 
 use, and how is that point now settled in equity ? 30 
 
 He could not, but it is now settled in equity, that he may be tenant by 
 the curtesy of an equity of redemption, and of lands of which the wife had 
 only a seisin in equity as a cestui que trust. 
 
 21. Is the receipt of the rents and profits a sufficient seisin in the 
 wife? 31 
 
 It is. 
 
 22. What if lands be devised to the wife for her separate and exclusive 
 use, and with a clear and distinct expression that the husband was not to 
 have any life estate or other interest, but the same was to be for the wife 
 and her heirs ? 31 
 
 In that case, the court of chancery will consider the husband a trustee 
 for the wife and her heirs, and bar him of his curtesy. 
 
 23. Is the husband of a mortgagee in fee entitled to his curtesy ? 31 
 No. 
 
 24. What has this rule now become ? 32 
 
 It has now become common learning, and irts well understood that the 
 rights existing in, or flowing from the mortgagee, are subject to the claims 
 of the equity of redemption, so long as the same remains in force. 
 
 25. To what estates does curtesy apply ? 31 
 
 To qualified as well as to absolute estates in fee. 
 
 26. What is dower, and when or where does it exist ? 34 
 
 It is a species of life estate created by the act of the law, and it ex- 
 ists where a man is siesed of an estate of inheritance, and dies in the 
 lifetime of his wife. 
 
 27. Of what, in such a case, is she at common law, entitled to be en- 
 dowed? 34 
 
 Of the third part of all the lands whereof her husband was seised, 
 either in deed or in law, at any time during the coverture, and of which 
 any issue which she might have had might by possibility have been heir, 
 and these she held for the term of her natural life. 
 
 28. For what was this humane provision of the common law intended ? 
 35 
 
 For the sure and competent sustenance of the widow, and the better 
 nurture and education of her children.
 
 LEC. LV.] REDUCED TO QUESTION'S AND ANSWERS. 187 
 
 29. What three things are requisite to the consummation of the title to 
 dower? 35 
 
 1. Marriage. 2. Seisin of the husband. 3. His death. 
 
 30. Upon what marriage does dower attach ? 36 
 
 It attaches upon all marriages not absolutely void, and existing at the 
 death of the husband; it belongs to a wife de "facto, whose marriage is 
 voidable by decree, as well as to a wife de jure. 
 
 31. What must the husband have had, and at what time, to entitle 
 the wife to dower ? 37 
 
 The husband must have had seisin of the land in severally, and at 
 some time during the marriage. 
 
 32. Does a title to dower attach on a joint seisin? 37 
 
 No. 
 
 33. Will a mere possibility of the estate being defeated by survivorship 
 prevent dower ? 37 
 
 It will. 
 
 34. How far did the old rule go on this subject ? 37 
 
 It went so far as to declare, that if one joint-tenant aliens his share, 
 his wife shall not be endowed, notwithstanding the possibility of the other 
 joint-tenant taking by survivorship is destroyed by the severance ; for the 
 husband was never sole seised. 
 
 35. Is it sufficient to give a title to dower, that the husband had a seisin 
 in law, without being actually seised ? 37 
 
 It is. 
 
 36. What reason is given for the distinction on this point between 
 dower and curtesy? 37 
 
 The reason is, that it is not in the wife's power to procure an actual 
 seisin by the husband's entry, whereas the husband has always the power 
 of procuring seisin of the wife's land. 
 
 37. If land descends to the husband as heir, and he dies before entry, 
 will his wife be entitled to her dower ? 37 
 
 She will, and this would be the case, even if a stranger should, in the 
 intermediate time, by way of abatement, enter upon the land ; for the law 
 contemplates a space of time between the death of the ancestor, and the 
 entry of the abater, during which time the husband had a seisin in law as 
 heir.
 
 188 KENT'S COMMENTARIES, [VOL. iv. 
 
 38. But is it not necessary that the husband should have been seised 
 either in fact or in law, to entitle to dower ? 37 
 
 It is and where the husband had been in possession for years, using 
 the land as his own, and conveying it in fee, the tenant deriving title un- 
 der him is concluded from controverting the seisin of the husband, in the 
 action of dower. If, however, upon the determination of a particular free- 
 hold estate, the tenant holds over and continues his seisin, and the husband 
 dies before entry, or if he dies before entry in a case of forfeiture for a 
 condition broken, his wife is not dowable, because he had no seisin either 
 in fact or in law. 
 
 39. Will the laches of the husband prejudice the claim of dower, when 
 he has no seisin in law ? 38 
 
 When he has no seisin in law it will, but not otherwise ; and Per- 
 kins states general cases in illustration of the rule. So, if a lease for life 
 be made before marriage, by a person seised in fee, the wife of the lessor 
 will be excluded from her dower, unless the life estate terminates during 
 coverture, because the husband, though entitled to the reversion in fee, 
 was not seised of the immediate freehold. If the lease was made subse- 
 quent to the time that the title to dower attached, the wife is dowable of 
 the land, and defeats the lease by title paramount. 
 
 40. Will a transitory seisin for an instant, when the same act that gives 
 the estate to the husband conveys it out of him, as in the case of a conusee 
 of a fine, be sufficient to give the wife dower ? 38 
 
 It will not. The same doctrine applies when the husband takes a 
 conveyance in fee, and at the same time mortgages the land back to the 
 grantor, or to a third person, to secure the purchase money in whole or in 
 part. Dower cannot be claimed as against rights under that mortgage. 
 The husband is not deemed sufficiently or beneficially seised by such an 
 instantaneous passage of the fee in and out of him, to entitle his wife to 
 dower as against the mortgagee, and this conclusion is agreeable to the 
 manifest justice of the case. The widow, in this case, on foreclosure of 
 the mortgage and sale of the mortgaged premises, will be entitled to her 
 claim to the extent of her dower in the surplus proceeds, after satisfying 
 the mortgage ; and if the heir redeems, or she brings her writ of dower, 
 she is let in for her dower, on contributing her proportion of the mortgage 
 debt. 
 
 42. How must the husband- be seised, to create a title to dower? 39 
 
 He must be seised of a freehold in possession, and of an estate of im- 
 mediate inheritance in remainder or reversion. 
 
 43. Does dower attach to all real hereditaments ? 40 
 It does. 
 
 44. What is the reason of the American rule, giving dower in equities 
 of redemption ? 45
 
 LKC. LV.] REDUCED TO QUESTIONS AND ANSWERS. 189 
 
 The reason is, that the mortgagor, so long as the mortgagee does not 
 exert his right of entry or foreclosure, is regarded as being legally as well 
 as equitably seised in respect to all the world, but the mortgagee and his 
 assigns. 
 
 45. Will dower be defeated upon the restoration of the seisin under the 
 prior title in the case of defeasible estates, as in the case of re-entry fora 
 condition broken, which abolishes the intermediate seisin ? 47 
 
 It will. 
 
 46. Will a recovery by actual title against the husband, also defeat the 
 wife's dower? 47 
 
 Yes. 
 
 47. But what if he give up the land by default and collusively ? 47 
 
 The statute of Westminster 2, c. 4. preserved the wife's dower, un- 
 less the tenant could show affirmatively a good seisin out of the husband 
 and in himself. 
 
 48. By what is the wife's dower liable to be defeated, on a general 
 principle ? 49 
 
 By every subsisting claim or encumbrance, in law or equity, existing 
 before the inception of the title, and which would have defeated the hus- 
 band's seisin. 
 
 49. If the husband and wife levy a fine, or suffer a common recovery, 
 is the wife barred of her dower? 50 
 
 She is. 
 
 50. Does a divorce, a vinculo matrimonii,ba.r the claim of dower ? 53 
 It does. 
 
 51. May the wife be barred of her dower, by having a joint estate, 
 usually denominated a jointure, settled upon her and her husband, and in 
 case of his death to be extended to the use of the wife during her life ? 54 
 
 She may. 
 
 52. What four provisions must be complied with, in a jointure to bar a 
 dower? 54 
 
 1. It must take effect immediately on the death of the husband. 2. 
 It must be for the wife's life. 3. It must be made and declared to be in 
 satisfaction of her whole dower. 4. It must be to the wife herself, and 
 not to any other person in trust for her. 
 
 53. Is a conveyance to trustees, for the use of the wife after the hus- 
 band's death, in point of law a jointure ? 54, 55
 
 190 KENT'S COMMENTARIES, [VOL. iv. 
 
 No ; but such a settlement, if in other respects good, will be enforced 
 in chancery as an equitable bar of dower ; and courts of equity have 
 greatly relieved the parties from the strict legal construction given to the 
 statute. It has also been settled, after great discussion in the English 
 House of Lords, in the case of Drury v. Drury, and in New York, in 
 M'Cartee v. Teller, that a jointure on an infant before coverture, bars her 
 dower, notwithstanding her infancy, on the ground of its being a provision 
 by the husband for the wife's support. It was considered to be a bar, a 
 provisione viri and not ex contractu ; and the assent of the wife was held 
 not to be an operative circumstance, though the ante-nuptial contract was, 
 in that case, executed by the infant in the presence of her guardian. An 
 equitable jointure, or a competent and certain provision for the wife, in 
 lieu of dower if assented to by the father or the guardian of the infant 
 before marriage, will also, in analogy to the statute, constitute an equitable 
 bar. But the conveyance before marriage of an estate to the wife, to 
 continue during widowhood, by way of jointure, or if made to depend 
 on any other condition, will not bar her dower, even if she be an adult, 
 unless, when a widow, she enters and accepts the qualified freehold. 
 The legal or equitable provision must be a fair equivalent to the dower 
 estate, to make it absolutely binding in the first instance. In New York, 
 the statute of 27 Hen. VIII. concerning jointures, was, in 1787, adopted 
 verbatim ; but it has been altered and improved by the new revised stat- 
 utes ; and the principle in equity, allowing jointures to exist also by con- 
 veyance of lands to a trustee, in trust for the wife, has been introduced 
 into the statute law, which provides, that if " an estate in lands be conveyed 
 to a person and his intended wife, or to such intended wife alone, or to 
 any other person in trust for such person and his intended wife, or in trust 
 for such wife alone, for the purpose of creating a jointure for such in- 
 tended wife, and with her assent, such jointure shall be a bar to any right 
 or claim of dower, &c. ; and the evidence of the assent of the wife shall 
 be, by her becoming a party to the conveyance, if of age, and, if an infant, 
 by her joining with her father or guardian therein." 
 
 The statute of 27 Hen. VIII. further provided, that if the settlement 
 in jointure was made after marriage, the wife should have her election, if 
 she survived her husband, to take it in lieu of dower, or to reject it, and 
 betake herself to her dower at common law. So, if she was fairly evicted 
 by law from her jointure, or any part of it, the deficiency was to be sup- 
 plied from other lands, whereof she would have been otherwise dowable. 
 Both these provisions formed a part of the statute of New York, in 1787, 
 and they have probably been adopted in all the states where the law of 
 jointure in bar of dower has been introduced. 
 
 54. Is it not settled that a collateral satisfaction, consisting of money 
 or other chattel interests, given by will, and accepted by the wife after her 
 husband's death, will constitute an equitable bar of dower ? 57 
 
 It is. 
 
 55. Have not the New York revised statutes, embodied most of these 
 principles of law and equity, with some variations and amendments ? 58 
 
 They have.
 
 LEC. LV.] REDUCED TO QUESTIONS AND ANSWERS. 191 
 
 56. What do the New York revised statutes, together with the laws of 
 Massachusetts and Connecticut, declare respecting dower ? 58 
 
 They declare, that any pecuniary provision made before marriage in 
 lieu of dower, if duly assented to by the wife, shall bar her dower. 
 
 57. What was a principle of the common law, that if the husband sei- 
 sed of an estate of inheritance, exchanged it for other lands ? 59 
 
 The wife could not have dower of both estates, but should be put to 
 her election. 
 
 58. Is not this principle also introduced into the New York revised stat- 
 utes ? 59 
 
 Yes ; and the widow is required to evince her election to take dower 
 out of the lands given in exchange, by the commencement of proceedings 
 to recover it, within one year after her husband's death, or else she shall 
 be bound to take her dower out of the lands received in exchange. 
 
 59. What is the usual way of barring dower in this country ? 59 
 
 By joining with the wife her husband in a deed of conveyance of the 
 land, containing apt words of grant or release on her part, and acknowledg 
 ing the same privately, apart from her husband, in the mode prescribed by 
 the statute laws of the several states. This practice is probably coeval with 
 the settlement of the country ; and it has been supposed to have taken its 
 rise in Massachusetts, from the colonial act of 1644. The wife must 
 join with her husband in the deed, and there must be apt words of grant, 
 showing an intention on her part to relinquish her dower. 
 
 60. May dower be recovered by bill in equity, as well as by action at 
 law? 71 
 
 Yes. The jurisdiction of chancery over the claim of dower, has 
 been thoroughly examined, clearly asserted, and definitively established. 
 It is a jurisdiction concurrent with that of law ; and when the legal title to 
 dower is in controversy, it must be settled at law ; but if that be admitted 
 or settled, full and effectual relief can be granted to the widow in equity, 
 both as to the assignment of dower, and the damages. The equity 
 jurisdiction was so well established, and in such exercise in England, that 
 Lord Loughborough said, that writs of dower had almost gone out of prac- 
 tice. The equity jurisdiction has been equally entertained in this country, 
 though the writ of dower unde nihil habet, is jthe remedy by suit most in 
 practice. 
 
 61. How is the claim of dower considered in New Jersey ? 71 
 
 It is considered, as emphatically, if not exclusively, within the cog- 
 nizance of the common law courts. 
 
 62. What are the surrogates in New York, in addition to the legal rem-
 
 192 KENT'S COMMENTARIES, [VOL. iv. 
 
 edies at law and in equity, empowered and directed to do, upon the appli- 
 cation either of the widow, or of the heirs or owners ? 72 
 
 To appoint three freeholders to set offby admeasurement the widow's 
 dower. 
 
 63. Has not this convenient and summary mode of assignment of dower, 
 under the direction of the courts of probates in the several states, proba- 
 bly, in a great degree, superseded the common law remedy by action ? 72 
 
 It has. 
 
 64. When a widow is" legally seised of her freehold estate, as dower- 
 ess, may she bequeath the crop in the ground of the land holden by her 
 in dower? 72 
 
 She may. 
 
 65. To what is every tenant for life entitled of common right? 72 
 
 To take reasonable estovers, that is, wood from off the land, for fuel, 
 fences, agricultural erections, and other necessary improvements. 
 
 66. Is he entitled, through his lawful representatives, to the profits of 
 the growing crops, in case the estate determines by his death, before the 
 produce can be gathered? 73 
 
 He is. 
 
 67. What are the profits termed, and on what principles are they given ? 
 73 
 
 They are termed emblements, and they are given on very obvious 
 principles of justice and policy, as the time of the determination of the 
 estate is uncertain. 
 
 68. In what cases does this rule apply ? 73 
 
 It extends to every case where the estate for life determines by the 
 act of God, or by the act of the law, and not to cases where the estate is 
 determined by the voluntary, wilful, or wrongful act of the tenant himself. 
 
 69. To what only is the doctrine of emblements applicable ? 73 
 
 To the products of the earth which are annual, and raised by the 
 yearly expense and labour of the tenant. 
 
 70. Are the tenants by the curtesy, and in dower, and for life or years, 
 answerable for waste committed by a stranger? 77 
 
 They are ; and they take their remedy over against him ; and it is a 
 general principle, that the tenant, without some special agreement to the
 
 tEC. LV.] REDUCED TO QUESTIONS AND ANSWERS. 193 
 
 contrary, is responsible to the reversioner for all injuries amounting to 
 waste, by whomsoever the injury may have been committed, with the ex- 
 ception of the acts of God, and public enemies, and the acts of the rever- 
 sioner himself. 
 
 71. Is the tenant like a common carrier ? 77 t 
 
 He is ; and the law in this instance is founded on the same great 
 principles of public policy. The landlord cannot protect the property 
 against strangers ; and the tenant is on the spot, and presumed to be able 
 to protect it. 
 
 72. What were the ancient remedies for waste ? 77 
 
 The ancient remedies were writs of estrepement, and waste ; but they 
 are now essentially obsolete. 
 
 73. Did any prohibition against waste lay against the lessee for life or 
 years, deriving his interest from the act of the party, at common law ? 77 
 
 No ; the remedy was confined to those tenants who derived their in- 
 terest from the act of the law ; but the timber cut was, at common law, 
 the property of the owner of the inheritance ; and the words in the lease, 
 without impeachment of waste, had the effect of transferring to the lessee 
 the property of the timber. 
 
 74. What is the modern remedy in chancery ? 77 
 
 Injunction ; which is broader than that at law ; and equity will in- 
 terpose in many cases, and stay waste, where there is no remedy at law. 
 
 75. To what is the chancery remedy limited ? 77 
 
 It is limited to cases in which the title is clear and undisputed ; and 
 the remedy by an action on the case in the nature of waste, has been held 
 not to lie for permissive waste. 
 
 76. Was not the provision in the statute of Gloucester, giving, by way 
 of penalty, the forfeiture of the place wasted, and treble damages, re-en- 
 acted in New York and Virginia? 80 
 
 It was ; and it is the acknowledged rule of recovery, in some of the 
 other states, in the action of waste. 
 
 77. But has not the writ of waste gone out of use, and what is its sub- 
 stitute ? 81 
 
 It has, and a special action on the case, in the nature of waste, is the 
 substitute ; and this action, which has superseded the common law reme- 
 dy, relieves the tenant from the penal consequences of waste under the 
 statute of Gloucester. 
 25
 
 194 KENT'S COMMENTARIES, [vol.. IT. 
 
 78. What does the plaintiff in this action upon the case recover ? 81 
 
 He recovers no more than the actual damages which the premises- 
 have sustained. 
 
 LECTURE LVI. 
 
 OF ESTATES FOR YEARS, AT WILL, AND AT 
 SUFFERANCE. 
 
 1. What is a lease for years ? 85 
 
 It is a contract for the possession and profits of land, for a determi- 
 nate period, with the recompense of rent ; and it is deemed an estate for 
 years, though the number of years should exceed the ordinary limit of 
 human life. 
 
 2. Is an estate for life a higher and greater estate than an estate for 
 years ? 85 
 
 It is ; notwithstanding the lease, according to Sir Edward Coke, 
 should be for a thousand years or more ; and if the lease be made for a 
 less time than a single year, the lessee is still ranked among tenants for 
 years. 
 
 3. May leases for years be made to commence infuturo ? 94 
 
 Yes ; for, being chattel interests, they never were required to be 
 created by feoffment and livery of seisin. 
 
 4. If land be let upon shares, for a single crop only, does that amount 
 to a lease ? 95 
 
 No ; the possession remains in the owner. 
 
 5. How may a term for years be defeated ? 99 
 
 By way of merger, when it meets another term immediately expec- 
 tant thereon. The elder term merges in the term in revesion or remain- 
 der. A merger also takes place, when there is a union of the freehold or 
 fee and the term, in one person, in the same right, and at the same time. 
 
 6. What is an estate at will ? 110 
 
 An estate at will is where one man lets land to another, to hold at the 
 of the lessor,
 
 LEG. LVII.] REDUCED TO QUESTIONS AND ANSWERS. 195 
 
 7. Who is a tenant at sufferance ? 116 
 
 A tenant at sufferance is one that comes into possession of land by 
 lawful title, but holdeth over by wrong, after the determination of his in- 
 terest. 
 
 8. What is the general rule to maintain trespass quare clausum ? 119 
 
 That there must be an actual possession in the plaintiff when the 
 trespass was committed, or a constructive possession in respect of the 
 right being actually vested in him. The ground of the action of trespass 
 is the injury to the possession. 
 
 LECTURE LVII. 
 OF ESTATES UPON CONDITION. 
 
 1. What are estates upon condition, and how are they divided by Little- 
 ton? 121 
 
 Estates upon condition are such as have a qualification annexed to 
 them, by which they may, upon the happening of a particular event, be 
 created, or enlarged, or destroyed. They are divided by Littleton into es- 
 tates upon condition implied or in law, and estates upon condition express 
 or in deed. 
 
 2. What are estates upon condition in law ? 121 
 
 They are such as have a condition impliedly annexed to them, with- 
 out any condition specified in the deed or will. 
 
 3. Of what extraction is the doctrine of estates upon condition, and 
 from what did it result ? 122 
 
 It is of feudal extraction, and resulted from the obligations arising 
 out of the fuedal relation. 
 
 4. What are conditions in a deed ? 123 
 
 The conditions are expressly mentioned in the contract between the 
 parties, and the object of them is either to avoid, or defeat an estate ; as 
 if a man (to use the case put by Littleton,) enfeoffs another in fee, reserv- 
 ing to himself and his heirs a yearly rent, with an express condition an 
 aexed, that if the rent be unpaid, the feeff&r and his heirs .may enter, a4
 
 196 KENT'S COMMENTARIES, [VOL. iv 
 
 hold the lands free of the feoffment. So, if a grant be to A. in fee, with 
 a proviso, that if he did not pay twenty pounds by such a day, the estate 
 should be void. It is usual, in the grant, to reserve in express terms, to 
 the grantor and his heirs, a right of entry for the breach of the condition ; 
 but the grantor and his heirs may enter, and take advantage, of the breach, 
 by ejectment, though there be no clause of entry. 
 
 5. How are conditions in a deed divided? 124 
 
 Into general and special. The former puts an end altogether to the 
 tenancy, on entry for the breach of the condition ; but the latter only au- 
 thorizes the reversioner to enter on the land, and take the profits to his 
 own use, and hold the land by way of pledge until the condition be 
 fulfilled. 
 
 6. What is a collateral limitation ? 129 
 
 It is another refinement belonging to this abstruse subject of limited 
 and conditional estates. It gives an interest for a specified period, but 
 makes the right of enjoyment to depend on some collateral events, as a 
 limitation of an estate to a man and his heirs, tenants of the manor of 
 Dale, or to a woman during widowhood, or to C. till the return of B. from 
 Rome, or until B. shall have paid him twenty pounds. The event marked 
 for the determination of the estate is collateral to the time of continuance. 
 
 LECTURE LVIII. 
 . OF THE LAW OF MORTGAGE. 
 
 1. What is a mortgage ? 135 
 
 It is the conveyance of an estate, by way of pledge, for the security 
 of debt, and to become void on payment of it. 
 
 2. In whom is the legal ownership vested, and into what four heads is 
 it divisible ? 1 35 
 
 The legal ownership is vested in the creditor ; but, in equity, the 
 mortgagor remains the actual owner, until he is debarred by his own de- 
 fault, or by judicial decree; and it is divided under the following heads. 
 
 1. Of the general nature of mortgages. 
 
 2. Of the mortgagor's estate and equity of redemption. 
 
 3. Of the estate and rights of the mortgagee. 
 
 4. Of foreclosure.
 
 LEG. LVIII.] REDUCED TO QUESTIONS AND ANSWERS, 197 
 
 3. From what does the Engish law of mortgages appear to have been 
 borrowed ? 136 
 
 From the civil law ; and the Roman hypotheca corresponded very 
 closely with the description of a mortgage in our law. 
 
 4. On what is the use of mortgages founded? 136 
 
 On the wants and convenience of mankind, and would naturally fol- 
 low the progress of order, civilization, and commerce. 
 
 5. Is there not a material distinction to be noticed between a pledge 
 and a mortgage ? 1 38 
 
 Yes. 
 
 6. What is a pledge or pawn ? 138 
 
 It is a deposit of goods, redeemable on certain terms, and either with 
 or without a fixed period for redemption. 
 
 7. May a mortgage arise in equity, out of the transaction of the parties, 
 without any deed or express contract for that special purpose ? 149 
 
 Yes. 
 
 8. What is now well settled in the English law on this subject ? 151 
 
 It is settled that if the debtor deposits his title deeds with a creditor, 
 it is evidence of a valid agreement for a mortgage, and amounts to an 
 equitable mortgage, which is not within the operation of the statute of 
 frauds. 
 
 9. In what case, and when was the earliest decision in support of the 
 doctrine of equitable mortgages, by the deposit of the muniments of ti- 
 tle ? 151 
 
 In the case of Russell v. Russell, in 1783, which decision is now 
 deemed an established principle in English law. 
 
 10. Has not the vendor of real estate a lien for the purchase money ? 
 151 
 
 He has, under certain circumstances. 
 
 11. Upon the execution of a mortgage, in whom does the estate vest ? 
 154 
 
 It vests in the mortgagee, subject to be defeated upon performance of 
 the condition. 
 
 12. Can the mortgagor be treated by the mortgagee as a trespasser ? 
 154
 
 198 KENT'S COMMENTARIES, [VOL. iv. 
 
 No ; he cannot, neither shall his assignee, until the mortgagee has 
 regularly recovered possession, by writ of entry or ejectment. The 
 mortgagor in possession is considered to be so with the mortgagee's as- 
 sent, and is not liable to be treated as a trespasser. 
 
 13. Is not the mortgagor allowed in New York, even to sustain an ac- 
 tion of trespass against the mortgagee, or those claiming under him, if he 
 undertakes an entry while the mortgagor is in possession ? 1 5 1 
 
 He is. 
 
 14. How was it anciently held ? 155 
 
 It was anciently held, that so long as the mortgagor remained in pos- 
 session, with the mortgagee, and without any covenant for the purpose, he 
 was a tenant at will. 
 
 15. What is the equity doctrine in regard to mortgages ? 159 
 
 It is, that the mortgage is a mere security for the debt, and only a 
 chattel interest, the mortgagor continues the real owner of the fee. 
 
 16. How is the equity of redemption considered ? 159 
 
 It is considered to be the real and beneficial estate, tantamount to 
 the fee at law ; and it is, accordingly, held to be descendible by inherit- 
 ance, devisable by will, and alienable by deed, precisely as if it were an 
 absolute estate of inheritance at law. 
 
 17. May not the mortgagor exercise the rights of an owner while in 
 possession ? 160 
 
 He may, provided he does nothing to impair the security ; and a 
 court of chancery will always, on the application of the mortgagee, and 
 with that object in view, stay the commission of waste by process of in- 
 junction. 
 
 18. Will an action at law, by the mortgagee, lie for the commission of 
 waste ? 161 
 
 No ; because he has only a contingent interest ; and yet actions of 
 trespass, quare clausum fregit, by the mortgagee, for the commission of 
 waste, by destroying timber, or removing fixtures, have been sustained 
 against the mortgagor in possession, in those states where they have no 
 separate equity courts with the plenary powers of a court of chancery. 
 
 19. If the mortgagee obtains possession of the mortgaged premises 
 before foreclosure, for what will he be accountable ? 165 
 
 For the actual receipts of rents and profits, and nothing more, unless 
 shey were reduced, or lost by his wilful default, or gross negligence.
 
 LEC. LVIII.] REDUCED TO QUESTIONS AND ANSWERS. 199 
 
 20. What does the mortgagee impose upon himself by taking possession, 
 and to what is he bound ? 1 66 
 
 He imposes upon himself the duty of a provident owner, and he is 
 bound to recover what such an owner would, with reasonable diligence, 
 have received. 
 
 21. May he charge for the expenses of a bailiff or receiver? 166 
 
 Yes, when it becomes proper to employ one ; but he is not entitled 
 to make any charge, by way of commission, for his own trouble in col- 
 lecting and receiving the rents. 
 
 22. Upon what does the mortgagee's right essentially depend ? 168 
 
 Upon the registry of his mortgage, and upon the priority of that 
 registry. 
 
 23. How must every conveyance of real estate be recorded to be valid 
 by the statute law of New York ? 168 
 
 It must be recorded in the clerk's office of the county in which the 
 real estate is situated, after being duly proved or acknowledged, and cer- 
 tified, as the law prescribes. 
 
 24. If not recorded, in what respect will such conveyance be void 1 
 -167 
 
 It is void as against any subsequent purchaser, or mortgagee, in good 
 faith, and for a valuable consideration, of the same estate, or any portion 
 thereof, whose conveyance shall be first duly recorded. 
 
 25. Has a mortgage not registered a preference over a subsequent 
 docketed judgment ? 173 
 
 Yes ; a mortgage unregistered is still a valid conveyance, and binds 
 the estate. 
 
 26. Suppose the purchaser at the sale on execution, under the judg- 
 ment, has his deed first recorded, who then will have the preference, and 
 on what will the question of right turn ? 173 
 
 The purchaser will gain a preference by means of the record over 
 the mortgage, and the question of right turns upon the fact of priority of 
 the record, in cases free from fraud. 
 
 27. How is the rule in Pennsylvania on this subject ? 173 
 
 In Pennsylvania the docketed judgment is preferred, and not unrea- 
 sonably ; for there is much good sense, as well as simplicity and certainty,, 
 in the proposition, that every incumbrance, whether it be a registered 
 deed or docketed judgment, should, in cases free from fraud, be satisfied 
 according to the priority of the lien upon record, which is open for pub- 
 lic inspection-.
 
 200 KENT'S COMMENTARIES, [VOL. iv. 
 
 28. In what one instance will a mortgage have a preference over a prior 
 docketed judgment ? 173 
 
 In the case of a sale and conveyance of land, and mortgage taken at 
 the same time, in return, to secure the payment of the purchase money. 
 
 29. May the right of equity of redemption be barred by the length of 
 time ? 186 
 
 It may. 
 
 30. If the mortgagee omits to give proper notice, whether directed by 
 the power or not ; may not the sale be impeached in chancery ? 189 
 
 It may. 
 
 31. Is not the sale under a power, if regularly and fairly made, accord- 
 ing to the directions of the statute, a final and conclusive bar to the equity 
 of redemption ? 190 
 
 It is. 
 
 32. How long has this been the policy and language of the law of 
 New York? 190 
 
 From the time of the first introduction of the statute regulation on 
 the subject, in March, 1774. 
 
 33. Will a sale under a power, as well as under a decree, bind the in- 
 fant heirs ? 191 
 
 It will ; for the infant has no day, after he comes of age to show cause, 
 as he has where there is the strict technical foreclosure, and as he gener- 
 ally has in the case of decrees. 
 
 34. Has a court of equity a competent power to require, by injunction, 
 and enforce by process of execution, delivery of possession ? 192 
 
 It has ; and the power is founded upon the simple elementary princi- 
 ple, that the power of the court to apply the remedy is co-extensive with 
 its jurisdiction over the subject-matter. 
 
 35. Does the English practice of opening biddings on a sale of mort- 
 gaged pemises, under a decree, prevail to any great extent in this coun- 
 try ? 192 
 
 No. 
 
 36. What was the object of opening biddings, at a sale of mortgaged 
 premises ? 192 
 
 The object was to aid creditors by an increase of the bid. 
 
 37. What does Lord Eldon say on this subject ? 192
 
 LEC. LIX.] REDUCED TO QUESTIONS AND ANSWERS. 201 
 
 He condemned the practice, as injurious to the sale ; and he observed, 
 that a great many estates were thrown away upon the speculation that 
 there would be an opportunity of purchasing afterwards by opening bid- 
 dings. 
 
 38. Does or does not the English method of selling under a decree 
 vary greatly from ours ? 192 
 
 It does. 
 
 LECTURE LIX. 
 OF ESTATES IN REMAINDER. 
 
 1. Of what two kinds are estates in expectancy ? 196 
 
 The first is created by the act of the parties, and called a remainder ; 
 the second by the act of the law, and called a reversion. 
 
 2. Under what nine heads does the commentator treat of remainders 1 
 -196 
 
 They are as follow : 
 
 1. Of the general nature of remainders. 
 
 2. Of vested remainders. 
 
 3. Of contingent remainders. 
 
 4. Of the rule in Shelley's case. 
 
 5. Of the particular estate. 
 
 i 6. Of remainders limited by way of use. 
 
 7. Of the time within which a contingent remainder must vest. 
 
 8. Of the destruction of contingent remainders. 
 
 9. Of some remaining properties of contingent remainders. 
 
 3. What is a remainder? 196 
 
 It is a remnant of an estate in land, depending upon a particular 
 prior estate, created at the same time, and by the same instrument, and 
 limited to arise immediately on the determination of that estate, and not 
 in abridgment of it. 
 
 4. How by the New York revised statutes is a remainder defined ? 
 197 
 
 It is defined to be an estate limited to commence in possession at a 
 future day, on the determination, by lapse of time, or otherwise, of a pre- 
 cedent estate, created at the same time. 
 
 5. Of what may a remainder consist ? 197 
 
 26
 
 202 KENT'S COMMENTARIES, [VOL. iv. 
 
 It may consist of the whole remnant of the estate ; as in the case of 
 a lease to A for years, remainder to B in fee ; or it may consist of a part 
 only of the residuary estate, and there may be a reversion beyond it, left 
 vested in the grantor, as in the case of a grant to A for years, remainder 
 to B for life ; or there may be divers remainders over, exhausting the 
 whole residuum of the estate, as in the case of a grant to A for years, re- 
 mainder to B for life, remainder to C in tail, remainder to D in fee. 
 
 6. What are cross-remainders 1 201 
 
 They are another qualification of these expectant estates, and they 
 may be raised expressly by deed, and by implication in a devise. If a 
 devise be of one lot of land to A, and of another lot to B, in fee, and if 
 either dies without issue, the survivor to take, and if both die without 
 issue, then to C in fee, A and B have cross-remainders over by express 
 terms ; and on the failure of either, the other, or his issue, takes, and the 
 remainder to C is postponed ; but if the devise had been to A and B of 
 lots to each, and remainder over on the death of both of them, the cross- 
 remainders to them would be implied. 
 
 7. Of how many sorts are remainders ? 201 
 -Two ; vested and contingent. 
 
 8. What is the definition of a vested remainder, by the New York re- 
 vised statutes ? 201 
 
 It is " when there is a person in being who would have an immedi- 
 ate right to the possession of the lands, upon the ceasing of the interme- 
 diate or precedent estate." 
 
 9. Are vested remainders actual estates ? 204 
 
 
 
 They are, and may be conveyed by any of the conveyances opera- 
 ting by force of the statute of uses. 
 
 10. What is a contingent remainder? 206 
 
 A contingent remainder is limited so as to depend on an event or 
 condition which is dubious and uncertain, and may never happen or be 
 performed, or not until after the determination of the particular estate. 
 
 11. Into what four classes are contingent remainders divided ? 206 
 
 1. The first sort is where the remainder depends on a contingent 
 determination of the preceding estate, and it remains uncertain whether 
 the use or estate limited in futuro will ever vest. Thus, if A makes a 
 feoffment to the use of B, till C returns from Rome, and after such return 
 remainder over in fee, the remainder depends entirely on the uncertain 
 or contingent determination of the estate in B, by the return of C from 
 Rome. 
 
 2. The second sort is where the contingency on which the remain-
 
 LBC. LIX.] REDCTCED TO CIDESTIONS AND ANSWERS. 203 
 
 der is to take effect is independent of the determination of the preceding 
 estate, and must precede the remainder. As if a lease be to A for life, 
 remainder to B for life, and if B die before A, remainder to C for life ; 
 the event of B dying before A, does not affect the determination of the 
 preceding estate, but it is a dubious event which must precede, in order 
 to give effect to the remainder in C. 
 
 3. A third kind is where the condition upon which the remainder is 
 limited is certain in event, but the determination of the particular estate 
 may happen before it. Thus, if a grant be made to A for life, and, after 
 the death of B, to C in fee ; here, if the death of B does not happen until 
 after the death of A, the particular estate is determined before the re- 
 mainder is vested, and it fails from the want of a particular estate to sup- 
 port it. 
 
 4. The fourth class of contingent remainders is, where the person 
 to whom the remainder is limited is not ascertained, or not in being. As 
 in the case of a limitation to two persons for life, remainder to the sur- 
 vivor of them ; or in the case of a lease to A for life, remainder to the 
 right heirs of B, then living. B cannot have heirs while living, and if he 
 should not die until after A, the remainder is gone, because the particular 
 estate failed before the remainder could vest. 
 
 12. Is there not a distinction which operates by way of exception to 
 the third class of contingent remainders ? 209 
 
 There is ; thus, a limitation for a long term of years, as, for instance, 
 to A for eighty years, if B should live so long, with the remainder over, 
 after the death of B, to C in fee, gives a vested remainder to C, notwith- 
 standing it is limited to take effect on the death of A, which possibly may 
 not happen until after the preceding estate for eighty years. 
 
 13. Do not exceptions exist also to the generality of the rule which 
 governs the fourth class of remainders ? 209 
 
 They do ; thus, if the ancestor takes an estate of freehold, and an 
 immediate remainder is limited thereon, in the same instrument, to his 
 heirs in fee, or in tail, the remainder is not contingent, or in abeyance, 
 but is immediately executed in possession in the ancestor, and he be- 
 comes seised in fee, or in tail. So, if some intermediate estate for life, or 
 in tail, be interposed between the estate of freehold in A and the limita- 
 tion to his heirs, still the remainder to his heirs vests In the ancestor, and 
 does not remain in contingency or abeyance. If there be created an es- 
 tate for life to A, remainder to the heirs of his body, this is not a contin- 
 gent remainder to the heirs of the body of A, but an immediate estate tail 
 in A ; or if there be an estate for life to A, remainder to B for life, re- 
 mainder to the right heirs of A, the remainder in fee is here vested in A, 
 and after the death of A, and the determination of the life estate in B, the 
 heirs of A take by descent as heirs, and not by purchase. The possibility 
 that the freehold in A may determine in his lifetime, does not keep the 
 subsequent limitation to his heirs from attaching in him ; and it is a gene- 
 ral rule, that when the ancestor takes an estate of freehold, and there be
 
 204 KENT'S COMMENTARIES, [VOL. iv. 
 
 in the same conveyance an unconditional limitation to his heirs, in fee, or 
 in tail, either immediately, without the intervention of any estate of free- 
 hold between his freehold and the subsequent limitation to his heirs, or 
 mediately with the interposition of some such intervening estate ; the sub- 
 sequent limitation vests immediately in the ancestor, and becomes, as the 
 case may be, either an estate of inheritance in possession, or a vested re- 
 mainder. 
 
 14. Must the freehold in the ancestor and the limitation to his heirs, 
 be by the same deed or instrument ? 212 
 
 They must, or they will not consolidate in the ancestor. 
 
 15. Must there be a particular estate to precede a remainder ? 233 
 
 Yes, for it necessarily implies, that a part of the estate has already 
 been carved. out of it, and vested in immediate possession in some other 
 person. 
 
 16. Must the particular estate be valid in law, and formed at the same 
 time, and by the same instrument, with the remainder ' 233 
 
 Yes. 
 
 17. If the particular estate be void in its creation, or be defeated after- 
 wards, will the remainder created by a conveyance at common law, resting 
 upon the same title, be defeated also ? 234 
 
 It will, as being, in such a case, a freehold commencing infuturo. 
 
 18. When must the interest to be limited, as a remainder, either vested 
 or contingent, commence or pass out of the grantor ? 248 
 
 At the time of the creation of the particular estate, and not afterwards. 
 
 19. Must the remainder be so limited, as to await the natural determi- 
 nation of the particular estate ? 249 
 
 It must, and cannot take effect in possession upon an event which 
 prematurely determines it. 
 
 20. Does not the New York revised statutes allow' a remainder to be 
 limited on a contingency ? 250 
 
 They do ; on a contingency, which, in case it should happen, would 
 operate to abridge or determine the precedent estate ; and every such re- 
 mainder is to be construed a conditional limitation, and to have the same 
 effect as such a limitation would have at law. 
 
 21. If the particular estate determines, or be destroyed, before the con- 
 tingency happens on which the expectant estate depended, and leaves no 
 right of entry, is not then the remainder annihilated ? 252 
 
 Yes.
 
 LEG. LX.] 
 
 REDUCED TO QUESTIONS AND ANSWERS. 
 
 205 
 
 22. By what are conveyances to uses governed ? 256 
 
 By doctrines derived from courts of equity ; and the principles which 
 originally controlled them, they retained when united with the legal estate. 
 
 23. Are all contingent and executory interests, assignable in equity ? 
 261 
 
 They are ; and will be enforced, if made for a valuable consideration ; 
 and it is settled, that all contingent estates of inheritance, as well as 
 springing and executory uses, and possibilities, coupled with an interest, 
 where the person to take is certain, are transmissible by descent, and de- 
 visable. If the person be not ascertained, they are not then possibilities 
 coupled with an interest, and they cannot be either devised, or descend, 
 at common law. Contingent and executory, as well as vested interests, 
 pass to the real and personal representatives, according to the nature of 
 the interest, and entitle the representatives to them when the contingency 
 happens. 
 
 LECTURE LX. 
 OF EXECUTORY DEVISES. 
 
 1. What is an executory devise ? 263 
 
 It is a limitation by will, of a future contingent .interest in lands, 
 contrary to the rules of limitation of contingent estates in conveyances 
 at law. 
 
 2. What if the limitation by will does not depart from those rules pre- 
 scribed for the government of contingent remainders ? 263 
 
 It is in that case, a contingent remainder, and not an executory devise. 
 
 3. For what reason was executory devises instituted ? 263 
 
 To support the will of the testator ; for when it was evident that he 
 intended a contingent remainder, and when it could not operate as such 
 by the rules of law, the limitation was then, out of indulgence to wills, 
 held to be good as an executory devise. 
 
 4. What does the history of executory devises present ? 264 
 
 An interesting view of the stable policy of the English common law, 
 which abhorred perpetuities, and the determined spirit of the courts of jus- 
 tice to uphold the policy, and keep property free from the fetters of entail- 
 ments, under whatever modification or form they might assume. 
 
 5. What says the learned commentator, respecting perpetuities, as ap- 
 plied to real estates ? 264
 
 206 KENT'S COMMENTARIES, [VOL. iv. 
 
 He says, they were conducive to the power and grandeur of ancient 
 families, and gratifying to the pride of the aristocracy ; but they were ex- 
 tremely disrelished by the nation at large, as being inconsistent with the 
 free and unfettered enjoyment of property. 
 
 6. For what were common recoveries invented 1 264 
 
 To bar estates tail, and then, on the other hand provisoes and con- 
 ditions not to alien with a cesser of the estate on any such attempt by the 
 tenant, were introduced to recall perpetuities. 
 
 7. How many kinds of executory devises are there relative to real es- 
 tates ? 268 
 
 Two. 
 
 8. What is the first? 268 
 
 The first is where the devisor parts with his whole estate, but, upon 
 some contingency, qualifies the disposition of it, and limits an estate on 
 that contingency. Thus, if there be a devise to A for life, remainder to 
 B in fee, provided that if C should, within three months after the death of 
 A, pay one thousand dollars to B, then to C in fee, this is an executory 
 devise to C, and if he dies in the lifetime of A, his heirs may perform the 
 condition. 
 
 | 
 
 9. What is the second ? 258 
 
 The second is where a testator gives a future interest to arise upon 
 a contingency, but does not part with the fee in the mean time ; as in the 
 case of a devise to the heirs of B, after the death of B, or a devise to B 
 in fee, to take effect six months after the testator's death, or a devise to 
 the daughter of B, who shall marry C within fifteen years. 
 
 10. In what three very material points, does an executory devise, differ 
 from a remainder ? 269 
 
 1. An executory devise, needs not any particular estate to precede 
 and support it, as in the case of a devise in fee to A upon his marriage. 
 Here is a freehold limited to commence infuturo, which may be done by 
 devise, because the freehold passes without livery of seisin ; and until 
 the contingency happens, the fee passes in the usual course of descent, to 
 the heirs at law. 
 
 2. A fee may be limited after a fee, as in the case of a devise of land 
 to B in fee, and if he dies without issue, or before the age of twenty-one, 
 then to C in fee. 
 
 3. A term for years may be limited over, after a life estate created 
 in the same. At law, the grant of the term to a man for life would 
 have been a total disposition of the whole term. Nor can an execu- 
 tory devise or bequest be prevented or destroyed, by any alteration 
 whatsoever, in the estate out of which, or subsequently to which, it is lim-
 
 LEC. LX.] REDUCED TO QUESTIONS AND ANSWERS. 207 
 
 ited. The executory interest is wholly exempted from the power of the 
 first devisee or taken. 
 
 11. If an executory devise be limited to take effect after a dying with- 
 out heirs, or without issue, or on failure of issue, or without leaving issue, 
 is the limitation held to be void ? 273 
 
 It is, because the contingency is too remote, as it is not to take place 
 until after an indefinite failure of issue. 
 
 12. What is a definite failure of issue 1 273 
 
 A definite failure of issue is, when a precise time is fixed by the will 
 for the failure of issue, as in the case of a devise to A, but if he dies with- 
 out lawful issue living at the time of his death. 
 
 13. What is an indefinite failure of issue ? 273 
 
 It is a proposition the very converse of the other, and means a fail- 
 ure of issue, whenever it shall happen, sooner or later, without any fixed, 
 certain, or definite period, within which it must happen. 
 
 14. Have not the New York revised statutes, put an end to all sem- 
 blance of any distinction in the contingent limitations of real and personal 
 estates ? 283 
 
 They have, by declaring that all the provisions relative to future es- 
 tates should be construed to apply to limitations of chattels real, as well 
 as of freehold estates ; and that the absolute ownership of personal pro- 
 perty shall not be suspended by any limitation or condition whatever, for 
 a longer period than during the continuance, and until the termination, of 
 not more than two lives in being at the date of the instrument containing 
 the limitation or condition, or, if it be a will, in being at the death of the 
 testator. 
 
 15. When there is an executory devise of the real estate, and the free- 
 hold is not, in the mean time, disposed of, to whom does the inheritance 
 descend? 283 
 
 To the testator's heir, until the event happens. 
 
 16. Have not the New York revised statutes, allowed the accumulation 
 of rents and profits of real estate, for the benefit of one or more persons, 
 by will or deed ? 285 
 
 They have, but the accumulation must commence either on the crea- 
 tion of the estate out of which the rents and profits are to arise, and it 
 must be made for the benefit of one or more minors then in being, and 
 terminate at the expiration of their minority ; or, if directed to commence 
 at any time subsequent to the creation of the estate, it must commence 
 within the time authorized by the statute for the vesting of future estates, 
 and during the minority of the persons for whose benefit it is directed,
 
 208 KENT'S COMMENTARIES, [VOL. IT. 
 
 and terminate at the expiration of such minority. If the direction for ac- 
 cumulation be for a longer time than during the minorities aforesaid, it 
 shall be void for the excess of time ; and all other directions for the ac- 
 cumulation of rents and profits of real estate are void. 
 
 LECTURE LXI. 
 OF USES AND TRUSTS. 
 
 1. What is a use ? 288 
 
 A use is where the legal estates of land is in A, in trust, that B shall 
 take the profits, and that A will make and execute estates according to the 
 direction of B. 
 
 2. What was the trustee to all intents and purposes ? 288 
 He was the real owner of the estate at law. 
 
 3. What title had the cestui que use ? 288 
 
 He had only a confidence or trust, for which he had no remedy at. 
 the common law. 
 
 4. Did uses exist under the Roman law, and if so, under what name ? 
 288 
 
 They did exist under the name of Jtdei commissa, or trusts. 
 
 5. By whom were they introduced, and for what purpose ? 288 
 
 They were introduced by testators, to evade the municipal law, which 
 disabled certain persons, as exiles and strangers, from being heirs or le- 
 gatees. 
 
 6. Was not the contrast between uses and estates at law, extremely 
 striking ? 291 
 
 Yes ; when uses were created before the statute of uses, there was a 
 confidence that the feoffee would suffer the feoffer to take the profits, and 
 that the feoffee, upon the request of the feoffer, or notice of his will, would 
 execute the estate to the feoffor and his heirs, or according to his direc- 
 tions. When the direction was complied with, it was essentially a con- 
 veyance by the feoffer, through his agent the feoffee, who, though even an 
 infant or feme covert, was deemed in equity competent to execute 
 power, and appoint a use. The existing law of the land was equally eluded 
 in the selection of the appointee, who might be a corporation, or alien, 
 or traitor, and in the mode of the direction, which might be by parol. 
 
 7. How do shifting or secondary uses take effect ? 296
 
 LEG. LXI.] REDUCED TO QUESTIONS AND ANSWERS. 209 
 
 They take effect in derogation of some other estate, and are either 
 limited by the deed creating them, or authorized to be created by some 
 person named in it. 
 
 8. To what are springing uses limited ? 297 
 
 They are limited to arise on a future event, where no preceding 
 estate is limited, and they do not take effect in derogation of any preceding 
 interest. 
 
 9. To what are future or contingent uses limited ? 299 
 
 To take effect as remainders. If lands be granted to A, in fee, to the 
 use of B, on his return from Rome, it is a future contingent use, because 
 it is uncertain whether B will ever return. 
 
 10. If the use limited by deed expired, or could not vest, or was not to 
 vest but upon a contingency, to whom did the use result back? 299 
 
 To the grantor, who created it. 
 
 11. Is the rule the same when no uses were declared by the convey- 
 ance ? 298 
 
 Yes. 
 
 12. What objections were made to uses and trusts, as they now, or then 
 did exist, in the remarks which accompanied the bill for the revision of the 
 New York statutes ? 299 
 
 The three following, viz : 
 
 1. They render conveyances more complex, verbose, and expressive 
 than is requisite, and perpetuate in deeds the use of a technical language, 
 unintelligible as a " mysterious jargon," to all but the v members of one 
 learned profession. 
 
 2. Limitations intended to take effect at a future day, may be defeated 
 by a disturbance of the seisin, arising from a forfeiture or a change of the 
 estate of the person seised to the use. 
 
 3. The difficulty of determining whether a particular limitation is 
 to take effect as an executed trust, as an estate at common law, or as a 
 trust. 
 
 13. How were these objections deemed ? 299 
 
 They were deemed so strong and unanswerable as to induce the re- 
 visers to recommend the entire abolition of uses. They considered, that 
 by making a grant, without the actual delivery of possession, or livery of 
 seisin, effectual to pass every estate and interest in land, the utility of 
 conveyances deriving their effect from the statute of uses would be super- 
 seded ; and that the new modifications of property which uses have sanc- 
 tioned, would be preserved by repealing the rules of the common law, by 
 which they were prohibited, and permitting every estate to be created by 
 grant which can be created by devise. 
 27
 
 210 KENT'S COMMENTARIES, [VOL. ir. 
 
 14. What have the New York revised statutes declared respecting uses 
 and trusts, except as authorized or modified in the article ? 299 
 
 They have declared, that they were abolished, and every estate and 
 interest in land is declared to be a legal right, or cognizable in the courts 
 of law, except where it is otherwise provided in the chapter ; and every 
 estate held as a use executed under any former statute, confined as a 
 legal estate. The conveyance by grant is a substitute for the conveyance to 
 uses ; and the future interests in land may be conveyed by grant as well 
 as by devise. The statute gives the legal estate, by virtue of a grant, 
 assignment, or devise ; and the word assignment was introduced to make 
 the assignment of terms, and other chattel interests, pass the legal interest 
 in them, as well as in freehold estates ; though, under the English law, 
 the use in chattel interests was not executed by the statute of uses. 
 
 15. Will not the operation of the statute of New York, in respect to the 
 doctrine of uses, have some slight effect upon the forms of conveyance ? 
 -300 
 
 Yes, and it may give them more brevity and simplicity. But it would 
 be quite visionary to suppose that the science of law, even in the depart- 
 ment of conveyancing, will not continue to have its technical language, 
 and its various, subtle, and profound learning, in common with every other 
 branch of human science. The transfer of property assumes so many 
 modifications, to meet the varying exigencies of speculation, wealth, and 
 refinement, and to supply family wants and wishes, the doctrine of con- 
 veyancing must continue essentially technical, under the incessant opera- 
 tion of skill and invention. The abolition of uses does not appear to be of 
 much moment, but the changes which the law of trusts has been made to 
 undergo, becomes extremely important. 
 
 16. To what extent are express or active trusts allowed ? 309 
 
 1 . To sell land for the benefit of creditors. 
 
 2. To sell, mortgage, or lease lands, for the benefit of legatees, or 
 for the purpose of satisfying any charge thereon. 
 
 3. To receive the rents and profits of lands, and apply them to the 
 use of any person ; or to accumulate the same for the purposes, and 
 within the limits, already mentioned. 
 
 17. May the court accept the resignation of a trustee ? 310 
 
 Yes ; and it may also discharge him, or remove him for just cause, 
 and supply the vacancy, or any want of trustees, in its discretion. 
 
 18. Was it not the object of the New York revised statutes to abolish 
 all trusts, except the express trusts which are enumerated, and resulting 
 trusts ? 311 
 
 It was.
 
 LF.C. LXII.] REDUCED TO QUESTIONS AND ANSWERS. 211 
 
 LECTURE LXII. 
 OF POWERS. 
 
 1. What are the powers with which we are most familiar in this coun- 
 try? 315 
 
 The common law authorities, of simple form and direct application. 
 But the powers now alluded to, are of a more latent and mysterious char- 
 acter, and they derive their effect from the statute of uses. 
 
 2. What are those powers, and how have the estates, arising from the 
 execution of them been classed? 315 
 
 They are declarations of trust, and modifications of future uses ; and 
 the estates arising from the executions of them have been classed under 
 the head of contingent uses. 
 
 3. What are all these powers in point of fact ? 315 
 
 Powers of revocations and appointment. 
 
 f ' 
 
 4. Who are the parties concerned in making a power ? 316 
 
 They are the donor, who confers the power, the appointor or donee, 
 who executes it, and the appointee, or person in whose favour it is exe- 
 cuted. 
 
 5. How are powers usually classed ? 317 
 
 1. Powers appendant, or appurtenant. 
 
 2. Powers collateral, or in gross. 
 
 3. Powers simply collateral. 
 
 This division is thought too artificial. Mr. Powell also divides 
 powers into general and particular powers. This classification of powers 
 is admitted to be important only with reference to the ability of the donee 
 to suspend, extinguish, or merge the power. 
 
 6. What is the general rule respecting a power ? 317 
 
 That it shall not be exercised in derogation of a prior grant by the 
 appointor. But this whole division of powers is condemned, as too arti- 
 ficial and arbitrary. 
 
 7. How is a power defined by the New York revised statutes ? 318 
 
 To be an authority to do some act in relation to lands, or the crea- 
 tion of estates therein, or of charges thereon, which the owner, granting 
 or reserving such power, might himself lawfully perform.
 
 212 KENT'S COMMENTARIES, [VOL. iv. 
 
 8. How has the statute of New York divided it? 317 
 
 Into general and special. A general power authorizes the alienation 
 in fee, by deed, will, or charge, to any alienee whatever. The power is 
 special when the appointee is designated, or a lesser interest than a fee is 
 authorized to be conveyed. It is beneficial when no person other than 
 the grantee has, by the terms of its creation, any interest in its execution. 
 A general power is in trust, when any person other than the grantee of 
 the power is designated as entitled to the whole, or part of the proceeds, 
 or other benefit to result from the execution of the power. 
 
 9. When is a power special? 318 
 
 A power is special in trust, when the dispositions it authorizes are 
 limited to be made to any person other than the grantee of the power, en- 
 titled to the proceeds or benefit thereof, or when any person other than 
 the grantee is designated as entitled to any benefit from the disposition or 
 charge authorized by the power. 
 
 10. Is any formal set of words requisite to create or reserve a power T 
 319 
 
 None at all, it may be created by deed or will. 
 
 11. When the mode in which a power is to be executed is not defined, 
 in what may it be executed ? 329 
 
 It may be executed by deed or will, or simply by writing. 
 
 12. May the power be executed without reciting it ? 334 
 
 It may, or ever referring to it, provided the act shows that the donee 
 had in view the subject of the power. 
 
 13. May a power of revocation and new appointment be reserved in a 
 deed executing a power ? 336 
 
 Yes, though the deed creating the power does not authorize it, and 
 such powers may be reserved toties quoties- 
 
 14. Have not the New York revised statutes given due stability to 
 powers that are beneficial, or in trust ? 337 
 
 They have ; and we would particularly refer the student and gene- 
 ral reader to the Commentaries at large for more information on this sub- 
 ject. The learned commentator shows that the statutes have also cleared 
 away, and very wisely, many difficulties, and given due and adequate re- 
 lief to the creditor. To use his own words of the doctrine of uses, trusts, 
 and powers, he says, " they are the foundation of those voluminous set- , 
 tleraents to which we in this country are comparatively strangers : the 
 groundwork of the operation of a family settlement is a conveyance of 
 the fee to the grantee or releasee to uses ; then follow the various modi-
 
 LEC. LXIII.] REDUCED TO QUESTIONS AND ANSWERS. 
 
 213 
 
 fied interests in the shape of future uses, which constitute the essential 
 part of the settlement ; and with the laws relating to this subject no one 
 can become too well acquainted ; every citizen of the United States 
 should be well informed on it." 
 
 LECTURE LXIII. 
 
 
 
 OF ESTATES IN REVERSION. 
 
 1. What is a reversion ? 353 
 
 A reversion, is the return of land to the grantor, and his heirs, after 
 the grant is over ; or, according to the formal definition in the New York 
 revised statutes ; it is the residue of an estate left in the grantor, or his 
 heirs, or in the heirs of a testator, commencing in possession on the de- 
 termination of a particular estate granted or devised. 
 
 2. What does a reversion necessarily assume ? 353 
 
 That the original owner has not parted with his whole estate or in- 
 terest in the land. 
 
 3. From what does sir William Blackstone say, that the doctrines of 
 reversion are divided ? 353 
 
 From the feudal constitution, but says our learned commentator, it 
 would have been more correct, to have said, that some of the incidents 
 attached to a reversion were of feudal growth, such as fealty, and the vary- 
 ing rule of descent between the cases of a reversion arising out of the 
 original estate, and one limited by the grant of a third person. 
 
 4 1 D 
 -3?3 
 
 oes a reversion arise by operation of law, or by deed, or will ? 
 
 By operation of law. And it is a vested interest or estate, inasmuch 
 as the person entitled to it has a faxed right of future enjoyment. 
 
 5. Is not a reversion an incorporeal hereditament? 354 
 
 It is, and may be conveyed either in whole, or in part, by grant, with- 
 out livery of seisin. 
 
 6. Are reversions expectant on the determination of estates for years, 
 immediate assets in the hands of the heir ? 354 
 
 They are. But the reversion expectant on the determination of an 
 estate for life, is not immediate assets during the continuance of the life 
 estate, and the creditor takes judgment for assets injuturo.
 
 214 KENT'S COMMENTARIES, [VOL. iv. 
 
 7. Is the reversioner entitled to his action for an injury done to the in- 
 heritance ? 355 
 
 He is, because he has a vested interest. 
 
 8. What are the usual incidents to the reversion, under the English 
 law? 355 
 
 Fealty and rent, fealty, in its feudal sense, does not now exist in this 
 country ; but rent is a very important incident, and passes with a grant of 
 the reversion. 
 
 LECTURE LXIV. 
 OF A JOINT INTEREST IN ESTATES. 
 
 1. In what two ways may joint interest in land be had ? 357 
 Either in the title or in the possession. 
 
 2. Who are joint tenants ? 357 
 
 Joint tenants are persons who own lands by a joint title, created ex- 
 pressly by one and the same deed or will. They hold uniformly by pur- 
 chase. 
 
 3. What is the doctrine of survivorship, or jus accrescendi ? 360 
 
 It is the distinguishing incident of title by joint tenancy ; and, there- 
 fore, at common law, the entire tenancy or estate, upon the death of any 
 of the joint tenants, went to the survivors, and so on to the last survivor, 
 who took an estate of inheritance. 
 
 4. Did the common law favour the title by joint tenancy ? 361 
 It did, by reason of the right of survivorship. 
 
 5. When were estates in joint tenancy abolished in New York ? 361 
 As early as February, 1786. 
 
 6. But what have the New York revised statutes re-enacted on this 
 subject ? 361 
 
 They have re-enacted the provision, and with the further declaration, 
 that every estate, vested in executors or trustees, as such, shall be held in 
 joint tenancy. 
 
 7. Can husband and wife take by moieties ? 362 
 
 They cannot. But they are both seised of the entirety, and the sur- 
 vivor takes the whole ; and, during their joint lives, neither of them can
 
 LEC. LXIV.] REDUCED TO QUESTIONS AND ANSWERS. 215 
 
 alien so as to bind the other. If an estate be conveyed expressly in 
 joint tenancy, to a husband and wife, and to a stranger, the latter takes a 
 moiety, and the husband and wife, as one person, the other moiety. 
 
 8. How would it be if the husband and wife had been seised of the 
 lands as joint tenants, before their marriage ? 363 
 
 They would continue joint tenants afterwards, as to that land, and 
 the consequences of joint tenancy, such as severance, partition, and the 
 jus accrescendi, would apply. It is said, however, to be now understood, 
 that husband and wife may, by express words, be made tenants in common 
 by a gift to them during coverture. 
 
 9. How may joint tenancy be destroyed ? 363 
 
 It may be destroyed by destroying any of its constituent unities, ex- 
 cept that of time. 
 
 10. What is the proper conveyance between joint tenants ? 364 
 
 It is a release ; and each has the power of alienation over his aliquot 
 share. 
 
 11. How may joint tenants sever the tenancy ? 364 
 
 Either voluntarily by deed, or they may compel a partition by writ of 
 partition, or by bill in equity. 
 
 It is to be presumed, that the English statutes of 31 and 32 Henry 
 VIII. have been generally re-enacted or adopted in this country, and, prob- 
 ably, with increased facilities for partition. They were re-enacted in New 
 York, 6th of February, 1788 ; and the New York revised statutes have 
 made further and more specific and detailed provisions for the partition of 
 lands, held either in joint tenancy, or in common, and they have given 
 equal jurisdiction over the subject to the courts of law, and of equity. In 
 Massachusetts also, by statute, the writ of partition is not only given, but 
 partition may be effected by petition without writ. 
 
 12. Is not the jurisdiction of chancery in awarding partition, well es- 
 tablished, in England, by a long series of decisions ? 364 
 
 It is, and has been found, by experience, to be a jurisdiction of great 
 public convenience. 
 
 13. When only does a court of equity interfere ? 364 
 
 Never, unless the title be clear, and never where the title is denied, or 
 suspicious, until the party seeking a partition has had an opportunity to try 
 his title at law. The same principle has been acted upon in the courts of 
 equity in this country. 
 
 14. What have the New York revised statutes prescribed to the courts 
 of law and the court of chancery, in respect to partition ? 365
 
 216 KENT'S COMMENTARIES, [VOL. iv. 
 
 That, whenever there shall be a denial of co-tenancy, an issue 
 shall be formed, and submitted to a jury to try the fact ; and the respective 
 rights of the parties are to be ascertained and settled before partition be 
 made, or a sale directed. 
 
 15. Who does a final judgment or decree, upon partition at law, under 
 the revised statutes, bind ? 365 
 
 It binds all parties named in the proceedings, and having, at the time, 
 any interest in the premises divided, as owners in fee, or as tenants for 
 years ; or as entitled to the reversion, remainder or inheritance, after the 
 termination of any particular estate ; or as having a contingent interest 
 therein, or an interest in any undivided share of the premises, as tenants 
 for years, for life, by the curtesy, or in dower. 
 
 But the judgment does not affect persons having claims as tenants in 
 dower, by the curtesy, or for life, in the whole of the premises subject to 
 the partition. It is likewise provided, in respect to the exercise of equity 
 jurisdiction, in the case of partition, that if it should appear that equal par- 
 tition cannot be made without prejudice to the rights and interests of some 
 of the parties, the court may decree compensation to be made by one party 
 to the other, for equality of partition, according to the equity of the case. 
 This is the rule in equity, independent of any statute provision, when 
 equity of partition cannot otherwise be made. 
 
 16. From what does an estate in coparcenary always arise 1 366 
 It always arises from descent. 
 
 17. In what three unities do coparceners resemble joint tenants? 366 
 Unities of title, interest, and possession. 
 
 18. But do not coparceners differ from joint tenants in other respects 
 in a most material degree ? 366 
 
 They do. They are said to be seised like joint tenants, per my et 
 per tout ; and yet each parcener has a devisible interest ; and the doc- 
 trine of survivorship does not apply to them. The shares of the partners 
 descend severally to their respective heirs. They may sever their pos- 
 session, and dissolve the estate in coparcenary, by consent, or by writ of 
 partition at common law. 
 
 19- Who are tenants in common ? 367 
 
 They are persons who hold by unity of possession ; and they may 
 hold by several and distinct titles, or by title derived at the same time, by 
 the same deed or descent. In this respect the American law differs from 
 the English common law.
 
 LEG. LXV.] REDUCED TO QUESTIONS AND ANSWERS. 217 
 
 LECTURE LXV. 
 OF TITLE BY DESCENT. 
 
 1. What must there be to constitute a perfect title ? 371 
 
 There must be the union of actual possession, the right of posses- 
 sion, and right of property. These several constituent parts of title may 
 be divided and distributed among several persons, so that one of them may 
 have the possession, another the right of possession, and the third the 
 right of property. Unless they all be united in one and the same party, 
 there cannot be that consolidated right, that jus duplicatum, or droit droit, 
 or the jus proprietors et possessions, which, according to the ancient 
 English law, formed a complete title. 
 
 2. By what two modes may title to land be acquired ? 372 
 
 By descent and by purchase ; the one is acquired by operation of 
 law, and the other by the act or agreement of the parties. 
 
 3. What is a descent or hereditary possession ? 374 
 
 It is the title whereby a person, on the death of his ancestor, acquires 
 his estate by right of representation as his heir. In these United States, 
 the English common law of descents, in its most essential features, has 
 been universally rejected, and each state has established a law of descents 
 for itself. 
 
 4. What is the first rule of inheritance ? 375 
 
 It is, that if a person owning real estate dies seised, or as owner, with- 
 out devising the same, the estate shall descend to his lawful descendants 
 in the direct line of lineal descent; and if there be one person, then to 
 him or her alone ; and if more than one person, and all of equal degree of 
 consanguinity to the ancestor, then the inheritance shall descend to the 
 several persons as tenants in common, in equal parts, however remote 
 from the intestate the common degree of consanguinity may be. 
 I ? 
 
 5. Is not this rule in favour of the equal claims of the descending line, 
 in the same degree ? 375 
 
 Yes. Without distinction of sex, to the exclusion of all other claim- 
 ants. Thus, if A. dies, owning real estate, and leaves, for instance, two 
 sons and a daughter, or, instead of children, leaves only two or more grand- 
 children, these persons being his lineal descendants, and all of equal de- 
 gree of consanguinity to the common ancestor, that is, being all of them 
 either his children, or grandchildren, or great grandchildren, they will 
 partake equally of the inheritance as tenants in common. 
 28
 
 218 KENT'S COMMENTARIES, [VOL. iv. 
 
 6. When was this rule of descent prescribed by the statute of New 
 York ? 375 
 
 On the 23d of February, 1786 ; and it has been adopted by the New 
 York revised statutes. 
 
 7. To what extent does this rule prevail in the United States ? 375 
 
 It prevails in all the United States, with this variation, that, in South 
 Carolina, the widow takes one-third of the estate in fee, and in Georgia, 
 she takes a child's share in fee, if there be any children, and if none, she 
 then takes a moiety of the estate ; and in South Carolina or Georgia, 
 the whole estate. In Rhode Island, New Jersey, North and South Caro- 
 lina, and in Louisiana, the claimants take, in all cases, per stirpes, though 
 standing in the same degree. In Alabama the descendants of children 
 also take^jer stirpes. 
 
 8. Did not the rule of common law, under the statute of descents for- 
 merly exist in New York ? 388 
 
 Yes, until 1786 ; and the heir was to deduce his title from the person 
 dying seised. But the New York revised statutes have wisely altered 
 the pre-existing law on this subject ; and they have extended the title by 
 descent generally to all the real estate owned by the ancestor at his death ; 
 and they include in the descent, every interest, legal and equitable, in 
 lands, tenements, and hereditaments, either seised or possessed by the in- 
 testate, or to which he was in any manner entitled, with the exception 
 of leases for years, and estates for the life of another person. This com- 
 pletely abolishes the English maxim, that seisina faeit. stipitem. So, like- 
 wise, in Massachusetts, Rhode Island, Connecticut, New Jersey, Penn- 
 sylvania, Delaware, Virginia, South Carolina, Georgia, and Ohio, and 
 probably in other states, the real and personal estates are distributed 
 among the heirs, without any reference or regard to the actual seisin of 
 the ancestor. Reversions and remainders vested by descent in an intes- 
 tate, pass to his heirs in like manner as if he had been seised in pos- 
 session ; and no distinction is admitted in descents between estates in 
 possession, and in reversion. In the states of Vermont, New Hampshire, 
 Maryland, and North Carolina, the doctrine of the possessio fratris would 
 seem still to exist. 
 
 9. In case of posthumous descendants, to whom does the inheritance 
 in the meantime descend, at the death of the intestate ? 389 
 
 To the heir in esse. It was declared, by Lord Ch. J. De Grey, in the 
 case of Goodtitle v. Newman, on the authority of a case in the Year 
 Books, of 9 Hen. VI. 25. that the posthumous heir was not entitled to the 
 profits of the estate before his birth, because the entry of the presump- 
 tive heir was lawful. This rule does not apply to posthumous children 
 who take remainders, under the statute of 10 and 11 Wm. III. They 
 must take the intermediate profits, says Lord Hardwicke ; for they are 
 to take in the same manner as if born in the lifetime of the father. This 

 
 LEG. LXV.] REDUCED TO QUESTIONS AND ANSWERS. 219 
 
 construction of Lord Hardwicke applies to the New York revised statutes ; 
 for it is declared, that posthumous descendants shall, in all cases, inherit 
 in the same manner as if born in the lifetime of the intestate. 
 
 10. What is the second rule of descents? 390 
 
 That, if a person dying seised, or as owner of land, leaves lawful 
 issue of different degrees of consanguinity, the inheritance shall descend 
 to the children and grandchildren of the ancestor, if any be living, and to 
 the issue of such children or grandchildren as shall be dead, and so on 
 to the remotest degree, as tenants in common. But such grandchildren, 
 and their descendants, shall inherit only such share as their parents re- 
 spectively would have inherited if living. 
 
 11. What is the third canon of inheritance ? 393 
 
 That if the owner of lands dies without lawful descendants, leaving 
 parents, the inheritance shall ascend to them, either first to the father and 
 next to the mother, or jointly, under certain qualifications. 
 
 12. What is the fourth rule of inheritance ? 400 
 
 That, if the intestate dies without issue, or parents, the estate goes to 
 his brothers and sisters, and their representatives. If there be several 
 such relatives, and all of equal degree of consanguinity to the intestate, 
 the inheritance descends to them in equal parts, however remote from the 
 intestate the common degree of consanguinity may be. If they all be 
 brothers and sisters, or nephews and nieces, they inherit equally ; but if 
 some be dead leaving issue, and others living, then those who are living 
 take the share they would have taken if all had been living, and the de- 
 scendants of those who are dead inherit only the share which their parents 
 would have received if living. 
 
 13. What is the fifth? 407 
 
 That in default of lineal descendants, and parents, and brothers and 
 sisters, and their descendants, the inheritance ascends to the grandparents 
 of the intestate, or to the survivor of them. This is not the rule that has 
 recently been declared in New York, for that excludes, in all cases, the 
 grandparents from the succession, and the direct lineal ascending line stops 
 with the father. 
 
 14. What is the sixth ? 408 
 
 That, in default of lineal descendants, and parents, and brothers and 
 sisters, and their descendants, and grandparents, the inheritance goes to the 
 brothers and sisters, equally, of both the parents of the intestate, and to 
 their descendants. If all stand in equal degree of consanguinity to 
 the intestate, they take per capita ; and if in unequal degree, they take per 
 stirpes. 
 
 This is_^the rule declared in New York, with the exception of the
 
 120 KENT'S COMMENTARIES, [VOL. iv. 
 
 grandparents ; and I presume it may be considered, with some slight vari- 
 ations in particular instances, as a general rule throughout the United 
 States. It is confined, in New York, to cases in which the inheritance 
 had not come to the intestate on the part of either of his parents. The 
 rule is controlled in that, and in some other states, by the following rule. 
 
 15. What is the seventh ? 409 
 
 That, if the inheritance came to the intestate on the part of his father, 
 then the brothers and sisters of the father, and their descendants, shall have 
 preference, and, in default of them, the estate shall descend to the brothers 
 and sisters of the mother, and their descendants. But if the inheritance 
 came to the intestate on the part of his mother, then her brothers and 
 sisters, and their descendants, have the preference ; and, in default of them, 
 the brothers and sisters on the father's side, and their descendants, take. 
 This rule is so declared in the New York revised statutes ; and the adop- 
 tion of the same distinction in several of the states, and the omission of 
 it in others, has been already sufficiently shown, in discussing the merits 
 of the fourth rule of inheritance. 
 
 16. What is the eighth rule ? 409 
 
 That on failure of heirs, under the preceding rules, the inheritance 
 descends to the remaining next of kin to the intestate, according to the 
 rules in the English statute of distribution of the personal estate, subject 
 to the doctrine in the preceding rules in the different states, as to the half 
 blood, and as to the ancestral estates, and as to the equality of distribution. 
 
 LECTURE LXVI. 
 
 OF TITLE BY ESCHEAT, BY FORFEITURE, AND BY 
 EXECUTION. 
 
 1. Under what heads is title to land usually distributed ? 423 
 
 Under the heads of descent and purchase, the one title being acquired 
 by operation of law, and the other by the act or agreement of the party. 
 But titles by escheat and forfeiture are also acquired by the mere act of 
 the law ; and Mr. Hargrave thinks that the proper general division of title 
 to estates, would have been by purchase, and by act of law, the latter 
 including equally, descent, escheat, and forfeiture. 
 
 2. What additional title, unknown to the English common law, is added 
 by American authors ? 423 
 
 Title by execution. 
 
 3. How was title by escheat created in the English law ? 423
 
 LEG. LXVI.] REDUCED TO QUESTIONS AND ANSWERS. 221 
 
 It was one of the fruits and consequences of feudal tenure. When 
 the blood of the last person seised became extinct, and the title of the ten- 
 ant in fee failed, from want of heirs, or by some other means, the land re- 
 sulted back, or reverted to the original grantor, or lord of the fee, from whom 
 it proceeded, or to his descendants or successors. All escheats, under the 
 English law, are declared to be strictly feudal, and to import the extinction 
 of tenure. The opinions given in the great case of Burgess v. Wheate, 
 concur in this view of the doctrine of escheat. But, as the feudal tenures 
 do not exist in this country, there are no private persons who succeed to 
 the inheritance by escheat ; and the state steps in the place of the feudal 
 lord, by virtue of its sovereignty, as the original and ultimate proprietor of 
 all the lands within its jurisdiction. 
 
 4. Is not the forfeiture, at common law, of the estate for crimes, very 
 much reduced in this country ? 426 
 
 Yes, and the corruption of blood is universally abolished. In New 
 York, forfeiture of property for crimes, is confined to the case of a convic- 
 tion for treason ; and, by a law of the colony of Massachusetts, as early 
 as 1641, escheats and forfeitures, upon the death of the ancestor, " natural, 
 unnatural, casual, or judicial," were abolished for ever. 
 
 5. What is the rule of law, as to the title which the state takes by es- 
 cheat or forfeiture ? 427 
 
 It takes the title which the party had, and none other. It is taken in 
 the plight and extent by which he held it ; and the estate of a remainder- 
 man is not destroyed or divested by the forfeiture of the particular estate. 
 
 6. Was title by execution known to the common law ? 428-31 
 
 It was not, but owes its introduction to modern statutes. The mode 
 which the creditor is required to pursue, varies in different states. 
 
 It is now provided by the New York revised statutes, that the real 
 estate of the debtor may be sold on execution, either at law or in chancery, 
 in default of goods and chattels, on six weeks' notice, and in separate par- 
 cels, if required by the owner. A certificate of the sale is to be delivered 
 by the officer to the purchaser, and another certificate filed in the clerk's 
 office of the county within ten days. 
 
 7. Is a sale so made, conditional or absolute ? 431 
 
 Conditional ; redemption of the lands sold may be made by the debtor, 
 or his representative, within one year, on paying the amount of the bid, 
 with ten per cent, interest. Any joint tenant, or tenant in common, may 
 redeem his ratable share of the land by paying a due proportion of the 
 purchase money. On default of the debtor, any creditor, by judgment at 
 law, or decree in equity, and in his own right, or as a trustee, within three 
 months after the expiration of the year, may redeem the land, on paying 
 the purchase money, with seven per cent, interest. So, any other judg- 
 ment creditor may redeem from such prior creditor. The redemption is 
 allowed to be carried further, and is given to any other creditor, who may
 
 222 KENT'S COMMENTARIES, [VOL. iv. 
 
 redeem from the creditor standing prior to him. But all these subsequent 
 redemptions must be within fifteen months from the time of the sale ; for 
 the officer is then to execute a deed to the person entitled, and the title 
 so acquired becomes absolute in law. 
 
 LECTURE LXVII. 
 OF TITLE BY DEED. 
 
 1. What is a purchase, in the ordinary and popular acceptation of the 
 term? 440 
 
 It is the transmission of property from one person to another, by their 
 voluntary act and agreement, founded on a valuable consideration. 
 
 2. What is it in judgment of law ? 440 
 
 It is the acquisition of land by any lawful act of the party, in contra- 
 distinction to acquisition by operation of law ; and it includes title by deed, 
 title by matter of record, and title by devise. 
 
 3. Were lands alienable in the time of the Anglo-Saxons 1441 
 
 They were, either by deed or by will, agreeable to respectable au- 
 thorities. 
 
 4. How were they called, when conveyed by charter or deed ? 441 
 
 Boc, or bookland, and the other kind of land, called folcland, was 
 held and conveyed without writing. But this notion of the free disposition 
 of the land among the Saxons, must be understood in a very qualified 
 sense ; and the jus disponendi, even at that day, was subject, as it is and 
 ought to be, in every country, and in every stage of society, to the restraints 
 and modifications suggested by convenience, and dictated by civil institu- 
 tions. It was reserved, however, to the feudal policy, to impose restraints 
 upon the enjoyment and circulation of landed property, to an extent then 
 unprecedented in the annals of Europe. 
 
 5. In whose favour did these restraints arise ? 442 
 
 They arose partly in favour of the heir of the tenant ; but principally 
 from favour to the lord of the fee. It was repugnant to the genius of the feu- 
 dal system, to allow the land, which the chieftan had given to one family, 
 to pass, without his consent, into the possession of another, perhaps to an 
 enemy. The restrictions accorded with the doctrine of feuds ; but were 
 proper for that system only. Asa part of the feudal fabric, they fell before 
 the influence of freedom, commerce, and the arts. 
 
 6. When were the earliest innovations upon the feudal restraints made? 
 443
 
 LEC. LXVII.] REDUCED TO QUESTIONS AND ANSWERS. 223 
 
 In the reign of Henry L, the first step taken in mitigation of the 
 rigour of the law of feuds, and in favour of voluntary alienations, was the 
 countenance given to the practice of subinfeudations. 
 
 7. Did not a law of Henry I. relax the restraints as to the purchased 
 lands ? 444 
 
 Yes, but retained it as to those which were ancestral. Under the 
 statute de donis of 13 Edward I., fees conditional were changed into estates 
 tail ; and by construction of the courts, these were eluded, and the policy 
 of the statute defeated by the fiction of a common recovery. The statute 
 of quia emptores, 18 Edward I., permanently established the free right of 
 alienation by the sub-vassel, without the lord's consent. The power of 
 involuntary alienation, by rendering the land answerable by attachment 
 for debt, was created by the statute of 13 Edward I., c. 18, which granted 
 the elegit ; and by the statutes merchant or staple, of 13 Edward I., and 
 27 Edward III., which gave the extent. 
 
 8. Who is capable of holding land by descent, devise, or purchase ? 446 
 
 Every citizen of the United States ; and every person capable of 
 holding lands, except idiots, persons of unsound minds, and infants, and 
 seised of, or entitled to, any estate, or interest in land, may alien the same 
 at his pleasure, under the regulations prescribed by law. 
 
 9. Has not the statute of 32 Henry VIII., respecting pretended titles, 
 which imposed a forfeiture upon the seller of the whole value of lands 
 sold, and the same penalty upon the buyer, also, if he purchased, know- 
 ingly, been re-enacted in the state of New York ? 447 
 
 Yes. This severe statute was re-enacted literally in New York, in 
 1788, but the penalty provisions are altered by the New York revised 
 statutes, which have abolished the forfeiture, and made it a misdemeanor 
 for any person to buy or sell, or make or take a promise or covenant to 
 convey, unless the grantor, or those by whom he claims, shall have been 
 in possession of the land, or of the reversion or remainder thereof, or of 
 the rents and profits, for the space of a year preceding. 
 
 10. Does this provision apply to a mortgage of the lands ? 447 
 
 No nor to a release of the same to the person in lawful possession. 
 
 11. Was not a feoffment void, without livery of seisin ? 448 
 
 Yes ; and without possession a man could not make livery of seisin. 
 
 12. Is this principle peculiar to the common law ? 448 
 
 No. It was a fundamental doctrine of the law of feuds, on the con- 
 tinent of Europe. 
 
 13. Is it not the settled doctrine, in the state of New York, that the 
 purchase of land pending a suit concerning it, is champerty ? 449
 
 224 KENT'S COMMENTARIES, [VOL. iv. 
 
 Yes. And the purchase is void, if made with a knowledge of the 
 suit, and not in consummation of a previous bargain. 
 
 14. What is required, in the due execution of a deed? 449 
 
 It must be written on paper or parchment and signed, sealed, deliv- 
 ered and recorded. 
 
 15. Does not the law require more form and solemnity, in the convey- 
 ance of land, than in that of chattels ? 450 
 
 It does, and this arises frpm the greater dignity of the freehold in the 
 eye of the ancient law, and from the light and transitory nature of person- 
 al property, which enters much more deeply into commerce, and requires 
 the utmost facility in its incessant circulation. 
 
 16. How were lands conveyed in the early periods of English history ? 
 450 
 
 Usually without writing, but it was accompanied, with overt acts, 
 equivalent, in point of formality and certainty, to deeds. As knowledge 
 increased conveyance by writing became more prevalent ; and finally, by 
 the statute of frauds and perjuries, of 29 Charles II., all estates and in- 
 terests inlands, (except leases not exceeding three years,) created, granted, 
 or assigned, by livery and seisin only, or by parol, and not in writing, and 
 signed by the party, were declared to have no greater force or effect than 
 estates at will only. 
 
 17. How has the statute provision been received in the United States ? 
 450 
 
 It has been either, expressly adopted, or assumed as law, throughout 
 the United States. In New York, it has been enacted, in every succes- 
 sive revision of the statutes ; and in the last revision it is made to apply, 
 not only to every estate and interest in lands, but to every power, or trust, 
 concerning the same ; and the exception as to leases is confined to leases 
 for a term not exceeding on year. 
 
 18. Does this provision, apply to trusts by implication, or operation of 
 law ? 450 
 
 No, nor is a parol promise to pay for the improvements made upon 
 land within the statute of frauds. They are not an interest in land, but 
 only another name for work and labour" bestowed upon it. So a crop of 
 growing potatoes, has been held not to be such a contract for the sale of any 
 interest in land, as to require a writing, within the statute of frauds. 
 
 19. How must a conveyance be executed in England ? 451 
 
 It is deemed essential in the English law to a conveyance of land, 
 that it should be by writing, sealed and delivered ; this rule of the 
 common law is adopted and followed, with us with the exception of Lou- 
 isiana, and is in some states made a statute provision. Part performance
 
 e performance of the contract * C U " f "J"^' to * 
 
 20. What is a deed ? _ 453 
 
 2L What did the common law intend by a seal > 
 
 _4 53 
 
 substance 
 
 urfn ? !l 4 T 2 iing " the C0m " '- -., requisite in every state in the 
 
 .dw' o 
 
 mclus've, *e impre ssi on s upor ^ "^X", *?* Ste , rn sta 'f s - f'"New Jersey 
 
 ^ to lnduM the couns , allow aflouri h wi* * ' S " Ch "" extent ' 
 
 name, or a c.cle of lnk , or 
 
 23. Is delivery of a deed essential ?_4 54 
 [' is, for it takes effect only from the delivery. 
 
 To whom may the deed be delivered ?_4 54 
 any *I~Sfi "hom i s made, or 
 
 25^ May i, be deHvered to a stranger as an m ;_ 454 
 
 by him 3 :etin m c e :n n di ?i o rt i0 p :lfo r e m V d ry "A'"' ^ 
 
 over to the grantee. performed, and then to be delivered 
 
 ' " he " * e <* delivered as 
 
 and the deed 
 
 27. When generally does an e roB take e(rec( ,_ 4M 
 
 & Mr. d is to be considered a, the 
 
 r so t r nct i on ""Vf ne f' le . d r S " M 
 
 delivery, so as to .ive the deed ,ff. r V rela " 0n back to the 
 of n m "' at tlm is 
 
 e ee ,. r 
 
 of necessity, to avoid in iurv^ ,h m "' at tlme ' is allo e ' i i" cases 
 
 Pining bet^en 3 *"
 
 226 KENT'S COMMENTARIES, [VOL. iv. 
 
 28. What is the general principle of law on this subject ? 454 
 
 That in all cases where it becomes necessary, for the purposes of 
 justice, that the true time when any legal proceeding took place should be 
 ascertained, the fiction of law introduced for the sake of justice, is not to 
 prevail against the fact. It has been further held, that if the grantor de- 
 liver a deed as his deed, to a third person, to be delivered over to the 
 grantee on some future event, as on the arrival of the grantee at York, 
 it is a valid deed from the beginning, and the third person is but a trustee 
 of it for the grantee. 
 
 29. May the delivery to the third person, for and on behalf of the grantee, 
 amount to a valid delivery ? 455 
 
 Yes ; thus where A delivered a deed to B,to deliver to C as his deed, 
 and B did so, and though C refused to accept of it, the deed was held to 
 enure from the first delivery. 
 
 30. What reason does the law assign for this ? 455 
 
 It is this : because the deed was not delivered as an escrow, or upon* 
 a condition to be performed. So, if a deed be duly delivered in the first 
 instance, it will operate, though the grantee suffer it to remain in the cus- 
 tody of the grantor. 
 
 31. What is required to make a deed valid against bona fide purcha- 
 sers ? 456 
 
 By the statute law of every state in the union, all deeds and convey- 
 ances of land, except certain chattel interests, are required to be recorded, 
 upon previous acknowledgment of proof. 
 
 32. Against whom only, will a deed be good, if not recorded ? 456 
 Only as against the grantor and his heirs. 
 
 33. Upon what does the mode and effect of proof depend ? 457 
 Upon the local laws of the several states. 
 
 34. Does not the New York revised statutes contain specific directions 
 on the subject of the proof ? 458 
 
 They do, and also of the manner of recording conveyances of real 
 estate. 
 
 35. Do the New York revised statutes make any provision as to the 
 number of witnesses requisite to a deed ? 458 
 
 None whatever ; and consequently, the common law rule applies, that 
 one witness is sufficient, or the acknowledgment before the officer with- 
 out any witness.
 
 LEG. LXVII.] REDUCED TO QUESTIONS AND ANSWERS. 227 
 
 36. Is the practice of recording deeds in England, limited or general ? 
 459 
 
 It is of local and very limited application. It applies to the Bedford 
 level tract, to the ridings of Yorkshire, and to the county of Middlesex. 
 
 37. Was there not during the period of the English commonwealth, an 
 effort to establish county registers, for recording deeds throughout Eng- 
 land ? 459 
 
 There was. 
 
 38. Was not the ancient policy in favour of the entire publicity of trans- 
 fers of land, by the fine of record, the livery under the feoffment, the en- 
 rolment of a bargain and sale, and the attornment under the grant ? 459 
 
 Yes. But the ingenuity of conveyancers, and the general and natural 
 dispositions to withdraw settlements, and the domestic arrangements, from 
 the idle curiosity of the public, have defeated that policy. 
 
 39. How is it now in Scotland ? 459 
 
 The old feudal forms, and the sasine, or symbolical tradition of the 
 land are retained. 
 
 40. Of what does a deed consist ? 460 
 
 It consists of the names of the parties, the consideration for which 
 the land was sold, the description of the subject granted, the quantity of 
 interest conveyed, and, lastly, the conditions, reservations, and covenants, 
 if any there be. 
 
 41. What said Sir Henry Spelman, of the deeds of the Saxons ? 460 
 
 He says, that they " observed no set form, but used honest and per- 
 spicuous words to express the thing intended with all brevity, yet not 
 wanting the essential parts of a deed, as the names of the donor and 
 donee, the consideration, the certainty of the thing given, the limitation of 
 the estate, the reservation, and the names of the witnesses." This brev- 
 ity and perspicuity, so much commended by Spelman, has become quite 
 lost, or but dimly perceived, in the cumbersome forms and precedents of 
 the English system of conveyancing. 
 
 42. Does not the forms in New York, and in those parts of the United 
 States which adhere the most to the English practice, still retain the lan- 
 guage of a mutual contract, executed by both parties ? 460 
 
 Yes. And each of them is supposed, by the fiction implied in the 
 more formal parts of the indenture, to retain a copy. But the essential 
 parts of a conveyance of land in fee are brief, and require but few words. 
 If a deed of feoffment, according to Lord Coke, be without premises, ha- 
 bendum, tenendum, reddendum, clause of warranty, &c., it is still a good
 
 228 KENT'S COMMENTARIES, [VOL. ir. 
 
 deed, if it gives lands to another, and to his heirs, without saying more, 
 provided it be sealed and delivered, and be accompanied with livery. 
 
 43. What is the usual form of conveyance in the United States ? 461 
 It is usually by bargain and sale, and possession passes ex vifacti. 
 
 44. What requisites are required ? 462 
 
 The parties must be competent to contract, and truly and sufficiently 
 described. 
 
 45. How has a grant to the people of a county been held ? 462 
 
 To be void ; because the statute enabling supervisors of counties to 
 take conveyances of land, applied only to conveyances made to them by 
 their official name. 
 
 46. Is a grant to the inhabitants of a town not incoporated, valid ? 462 
 It is not. 
 
 47. Are not conveyances good in many cases, when made to a grantee 
 by a certain designation, without the mention of either the christain or 
 surname ? 462 
 
 Yes. As to the wife of I. S., or to his eldest son, for id est certum, 
 quod potest reddi certum. 
 
 48. Is a consideration essential to a good and absolute deed ? 462 
 
 It is generally so held ; but a gift, or voluntary conveyance will be 
 effectual as between the parties, and is only liable to be questioned in 
 certain cases, when the rights of creditors and subsequent purchasers are 
 concerned. 
 
 49. Must the consideration be either good or valuable ? 464 
 
 Yes. And not partaking of any thing immoral or illegal, or fraud- 
 ulent. 
 
 50. Is it not a universal rule, that it is unlawful to contract to do that 
 which it is unlawful to do ? 464 
 
 Yes. And every deed and every contract are equally void, whether 
 they be made in violation of a law which is malum in se', or only malum 
 prohibitum. 
 
 51. What is a good consideration founded upon ? 464 
 
 Upon natural love and affection between near relations by blood ; 
 but a valuable one is founded on something deemed valuable, as money, 
 goods, services, or marriage.
 
 LEC. LXVII.] REDUCED TO QUESTIONS AND ANSWERS. 229 
 
 52. What is the rule respecting the description of the land convey- 
 ed ? 466 
 
 The rule is, that known and fixed monuments control courses and 
 distances. So, the certainty of metes and bounds will include, and pass 
 all the lands within them, though they vary from the given quantity ex- 
 pressed in the deed. The least certain arid material parts of the descrip- 
 tion must yield to those which are the most certain and material. 
 
 53. Does the mention of quantity of acres, after a certain description of 
 "the subject by metes and bounds, or by other known specification, amount 
 
 to any covenant ? 466 
 
 It does not : it is but matter of description nor does it afford ground 
 for the breach of any of the usual covenants, though the quantity of acres 
 should fall short of the given amount. 
 
 54. Whenever it appears by the definite boundaries, or by words of quali- 
 fication, as " more or less," or as " containing by estimation," or the like, 
 that the statement of the quantity of acres in the deed is mere matter of 
 description, and not of the essence of the contract, how does the buyer 
 take it? -467 
 
 He takes it at the risk of the quantity, if there be no intermixture of 
 fraud in the case. 
 
 55. How was the hale.ndum originally used? 468 
 
 To determine the interest granted, or to lessen, enlarge, explain, or 
 qualify the premises. It. is now generally considered but a mere form. 
 If, however, the premises should be merely descriptive, and no estate be 
 mentioned, then the habendum becomes efficient to declare the inten- 
 tion ; and it will rebut any implication arising from the silence of the 
 premises. 
 
 56. What five covenants are usually inserted in a conveyance of the 
 fee? 471 
 
 1. That the grantor is lawfully seised. ^ * 
 
 2. That he has good right to convey. 
 
 3. That the land is free from incumbrances. 
 
 4. That the grantee shall quietly enjoy. 
 
 5. That the grantor will warrant and defend the title against all law- 
 ful claims. 
 
 57. Which three are personal covenants ? 471 
 
 The first three of the five above named. Those three do not run 
 with the land, nor pass to the assignee. 
 
 58. Are the covenant of warranty, and the covenant for quiet enjoy- 
 ment, in the nature of real covenants ? 471
 
 230 KENT'S COMMENTARIES, [VOL. iv. 
 
 Yes : and they run with the land conveyed, and descend to heirs, and 
 vest in assignees. 
 
 59. Are not damages allowed on eviction, for improvements, made by 
 the purchaser ? 475 
 
 None whatever. 
 
 60. If an incumberance has not been extinguished by the purchaser, 
 and there has been no eviction under it, what damages can he recover ? 
 476 
 
 Nominal damages only, if the eviction be only of a part of the land 
 purchased, the damages are a ratable part of the original price ; and they 
 are to bear the same ratio to the whole consideration, that the value 
 of the land, to which the title has failed, bears to the value of the whole 
 tract. 
 
 61. Does the French code adopt the same rule of compensation on 
 eviction of part only of the subject 1 477 
 
 Yes ; but it allows the whole sale to be vacated, if the eviction be 
 of such consequence, relatively to the whole purchase, that the purchase 
 would not have been made without the part lost. 
 
 62. Does not this have the appearance of refined justice ? 477 
 
 It does ; but the prosecution of such an inquiry must, in many cases, 
 be very difficult and delusive ; and this part of the provision, allowing the 
 contract to be rescinded, has been dropped in Louisiana. 
 
 63. What did the French law give prior to the revolution ? 478 
 
 It gave to the buyer a compensation for improvements, and the in- 
 creased value of the land, in addition to the restitution of the price, with 
 interest and costs. It was founded on the Roman law ; but the provision 
 was destitute of fixedness and precision. 
 
 64. What effect did the code Napoleon have upon this rule ? 478 
 
 It rescued the rule from the guidance of loose and arbitrary discre- 
 tion, and reduced it to certainty. 
 
 65. What does that code allow the purchaser on eviction ? 478 
 
 To recover the price, and the mesne profits which he is obliged to 
 pay to the owner, and his costs and expenses, and the increased value of 
 the lands, independent of the acts of the purchaser, and also the benefi- 
 cial improvements which he may have made. 
 
 66. Does the rule in the French code operate with equality and jus- 
 tice 1 478
 
 LEG. LXVII.] REDUCED TO QUESTIONS AND ANSWERS. 231 
 
 It does not ; the vendor is bound to pay for the increased value of 
 the land; and yet if it happens to be diminished in value at the time of 
 eviction, the vendor is not less bound to refund the purchase money. 
 
 67. What has the civil code of Louisiana provided on this subject ? 
 478 
 
 Closely copied the general provisions of the French code ; but it has 
 omitted this inequality of regulation ; and it likewise confines the recovery 
 to the price, mesne profits, costs and special damages, (if any,) and bene- 
 ficial improvements. 
 
 68. On what does the manner of assigning breaches, on these various 
 covenants depend ? 479 
 
 Upon the character of the covenant. 
 
 69. How many kinds of conveyances are there ? 480 
 
 There are two kinds ; first, conveyances at common law ; second, 
 conveyances under the statute of uses. 
 
 70. How is the first class subdivided ? 480 
 Into original and derivative conveyances. 
 
 71. What was a feoffment ? 480 
 
 It was the mode of conveyance in the earliest periods of the com- 
 mon law. 
 
 72. With what was the feoffment accompanied ? 480 
 
 With actual delivery of possession of the land, termed livery of 
 
 73. How was livery of seisin performed ? 480 
 
 It was performed by the entry of the feoffor upon the land, with the 
 charter of feoffment, and delivering a clod, turf, or twig, or the latch of 
 the door, in the name of seisin of all the lands contained in the deed. 
 
 74. What was the ceremony of granting a feud ? 480 
 
 Open and notorious delivery of possession in the presence of the 
 freeholders of the neighbourhood. 
 
 75. Did the feoffment operate upon the possession ? 481 
 
 Yes ; without any regard to the estate or interest of the feoffor. 
 
 76. Has not the conveyance by feoffment, with livery of seisin, long 
 since been obsolete in England? 489
 
 232 KENT'S COMMENTARIES, [VOL. iv, 
 
 Yes ; and though it has been, in this country, a lawful mode of con- 
 veyance, it has not been used in practice. Our conveyances have been 
 either under the statute of uses, or short deeds of conveyance, in the na- 
 ture of the ancient feoffment, and made effectual, on being duly recorded, 
 without the ceremony of livery. The New York revised statutes have 
 expressly abolished the mode of conveying lands by feoffment, with livery 
 of seisin. 
 
 77. What was a grant 7490 
 
 It was a common law conveyance, and applied to incorporeal here- 
 ditaments, such as reversion, rents, and services ; and, not being of a tan- 
 gible nature, and existing only in contemplation of law, they could not be 
 conveyed by livery of seisin. Such rights were said to lie in grant, and 
 not in livery, and they were conveyed simply by deed. 
 
 78. What was the difference between a feoffment and a grant? 490 
 
 There was this essential difference between a feoffment and a gl'ant: 
 while the former carried destruction in its course, by operating upon the 
 possession, without any regard to the estate or interest of the feoffor, the 
 latter benignly operated only upon the estate or interest which the grantor 
 had in the thing granted, and could lawfully convey. 
 
 79. What did the common law require, to render the grant effectual ? 
 490 
 
 It required the consent of the tenant of the land out of which the 
 rent, or other incorporeal interest, proceeded ; and this consent was called 
 attornment ; but this is now abolished in the United States. 
 
 80. Have not the New York revised statutes rendered the attornment 
 of the tenant unnecessary to the validity of a conveyance by his land- 
 lord? 491 
 
 Yes. But to renderi him responsible to the grantee, for rent or other- 
 wise, he must have notice of the grant. Nor will the attornment of a tenant 
 to a stranger be valid, unless made with his landlord's consent, or in con- 
 sequence of a judgment or decree, or to a mortgagee, after forfeiture of the 
 mortgage. 
 
 81. Have not the New York' revised statutes given to deeds of convey- 
 ance of the inheritance or freehold, the name of grants ? 491 
 
 Yes. And though deeds of bargain and sale, and of lease or release, 
 may continue to be used, they are to be deemed grants. 
 
 82. What is the nature and effectof a covenant, tostand seised touses?--492 
 
 By this conveyance, a person seised of lands, covenants that he will 
 stand seised of them to the use of another. On executing the covenant, 
 the other party becomes seised of the use of the land, according to the 
 terms of the use ; and the statute of uses immediately operates, and annexes 
 he possession to the use.
 
 LEC. LXVIII.] REDUCED TO QUESTIONS AND ANSWERS. 233 
 
 83. Can any use be raised for any purpose by this conveyance, in favour 
 of a person not within the influence of the domestic consideration ? 493 
 
 No. And it makes no difference whether the grantee, if he be a 
 stranger, to the consideration, is to take on his own account, or as a 
 mere trustee for some of the family connexions. He is equally incompe- 
 tent to take. 
 
 84. If the covenant to stand seised, be founded on the requisite consid- 
 eration, would not then the grant be good ? 493 
 
 Yes. And it is admitted, that in a covenant to stand seised any 
 words will do, that sufficiently indicate the intention. 
 
 85. What is the usual mode of conveyance in England ? 494 
 
 That of lease and release, because it does not require the trouble 
 of enrolment. It was contrived by Sergeant Moore, at the request of Lord 
 Norris, for a particular case, and to avoid the unpleasant notoriety of livery, 
 or attornment. It was the mode universally in practice in New York, 
 until the year 1788. 
 
 86. What mode of conveyance is most prevalent in the United States ? 
 497. 
 
 That of bargain and sale ; and it was in universal use in New York, 
 prior to the introduction of the grant, by the revised statutes, in January, 
 1830. 
 
 LECTURE LXVIII. 
 OF TITLE BY WILL OR DEVISE. 
 
 1. What is a will? 501 
 
 A will is a disposition of real and personal property, to take effect after 
 the death of the testator. When the will operates upon personal property, 
 it is sometimes called a testament ; and when upon real estate a devise ; 
 but the more general, and the more popular denomination of the instrument, 
 embracing equally real and personal estates, is that of last will and 
 testament. 
 
 2. Were lands devisible to a qualified extent, with the Anglo-Saxons ?503 
 
 It seems so. But, upon the establishment of the feudal system, at the 
 Norman conquest, lands held in tenure ceased to be devisible. 
 
 3. What exceptions were there to this restraint 1 504 
 
 Burgage tenures, and lands in gavelkind. 
 30
 
 234 KENT'S COMMENTARIES, [VOL. IT- 
 
 
 
 4. When did the disposition of real property by will, become absolute ? 
 504 
 
 In the beginning of the reign of Charles II. 
 
 5. Was not the English law of devise, imported into this country by 
 our ancestors ? 504 
 
 Yes. And incorporated into our colonial jurisprudence, under such 
 modifications, in some instances, as were deemed expedient. Lands may 
 be devised by will, in all the United States. 
 
 6. What is the general rule, as to the parties to a devise ? 505 
 
 That all persons of sound mind are competent to devise real estate, 
 with the exception of infants and married women ; a. feme covert, may 
 devise, by way of the execution of a power ; but the will that she makes, 
 in such a case, must be executed with the same solemnities as if she had 
 executed the will while sole ; and the statute of New York excludes the 
 exercise of such power, during infancy. 
 
 7. May testaments of chattels be made by infants ? 506 
 
 They may in conformity with the English rule, females at the age of 
 12, males at the age of 14. 
 
 8. Are the laws in the several states uniform on this point ? 506 
 
 They are not, and by the New York revised statutes, the age to 
 make a will of personal estate is raised up to 18 in males, and 16 in fe- 
 males ; nor can a married woman make a testament of chattels, any more 
 than of lands, except under a power or marriage contract. 
 
 9. May infants, femes covert, and persons of nonsane memory, and 
 aliens be devisees ? 506 
 
 Yes, for the devise is without consideration ; a devise to the heir at 
 law is void, if it gives precisely the same estate that the heir would take 
 by descent, if the particular devise to him was omitted out of the will. 
 
 10. Which, in this case, has the precedence, title by descent, or by de- 
 vise ? 506 
 
 Title by descent. 
 
 11. If the lands be devised to the heir charged with debts, by what will 
 he take, and why ? 507 
 
 By descent, for the charge does not operate as an alteration of the 
 .estate. 
 
 12. Are not corporations excepted out of the English statute of wills ? 
 -507 
 
 Yes, corporations are excepted out of the English statute of wills, and
 
 LEC. LXVI1I.] REDUCED TO QUESTIONS AND ANSWERS. 235 
 
 the object of the law was to prevent property from being locked up in 
 perpetuity, and also to prevent, languishing and dying persons, from being 
 imposed upon by false notions of merit or duty, to give away their estates 
 from their families. 
 
 13. What says the New York revised statutes on this subject 1 507 
 
 That no devise to a corporation shall be valid, unless the corporation 
 be expressly authorized to take by devise. 
 
 14 Are witnesses to a will, rendered incapable of taking any beneficial 
 interest under it I 509 
 
 Yes, except they be creditors, whose debts, by the will, are made a 
 charge on the real estate. 
 
 15. What is the settled rule of the English law, respecting things de- 
 visible ? 510 
 
 That the testator must be seized of the lands devised at the time of 
 making the will. The devise is in the nature of a conveyance, or an ap- 
 pointment of a particular estate ; and therefore lands, purchased after the 
 execution of the will, do not pass by it : the testator must likewise con- 
 tinue seized at the time of his death. 
 
 16. Have not the New York revised statutes made devises prospective ? 
 512 
 
 Yes, by declaring that every estate, and interest descendible to heirs, 
 may be devised ; and that every will made in express terms, of all the real 
 estate, or in any other terms denoting the testator's intent to devise all his 
 real property, shall be construed to pass all the real estate which he was 
 entitled to devise at the time of his death. The law in Pennsylvania and 
 Virginia is the same as that now in New York. Rights of entry which 
 are devisible even though there be an adverse possession or disseisin. 
 
 17. Has a joint tenant an interest which is devisible ? 513 
 
 He has not ; the reason given by Lord Coke is, that the surviving 
 joint tenant has an interest, which first attaches at the death of the joint 
 tenant making the will ; and he insists, that there is a priority of time in an 
 instant ; and Mr. Butler refers to another case in which that subtlety was 
 applied. 
 
 18. What in general are the formalities required in the execution of a 
 will of real estate ? 513 
 
 The general provision on this subject is, that the will of real estate 
 must be in writing, and subscribed by the testator, or acknowledged by 
 him in the presence of at least two witnesses, who are to subscribe their 
 names as witnesses. The regulations in the several states differ in 
 some unessential points ; but generally they have adopted the directions 
 given by the English statute of frauds, of 29 Charles II By the New 
 York revised statutes, the testator is to subscribe the will at the end of
 
 236 KENT'S COMMENTARIES, [VOL. iv. 
 
 it, in the presence of at least two witnesses, who are to write their places 
 of residence opposite their names, under the penalty of fifty dollars ; but the 
 omission to do it will not affect the validity and efficiency of their attesta- 
 tion. In Vermont, the will is required to be sealed ; but this is peculiar to 
 that state. Three witnesses, as in the statute of frauds, are required, in 
 Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Con- 
 necticut, New Jersey, Maryland, South Carolina, Georgia, Alabama, and 
 Mississippi. Two witnesses only, are requisite, in New York, New Jersey, 
 Delaware, Virginia, Ohio, Illinois, Indiana, Missouri, Tennessee, North 
 Carolina, and Kentucky. In some of the states, the provision as to attes- 
 tation is more special. In Pennsylvania, a devise of lands in writing will 
 be good without any subscribing witnesses, provided the authenticity of it 
 can be proved by two witnesses. So in Virginia, two subscribing witnesses 
 do not seem to be indispensable, provided the will has been wholly written 
 x out, and signed by the testator. In North Carolina and Tennessee, a will 
 of land may be good, under special circumstances, without any subscribing 
 witnesses. 
 
 19. Does not the English statute of frauds, require the will to be signed 
 by the devisor, and to be attested and subscribed by the witnesses, in his 
 presence ? 514 
 
 Yes ; and this direction has been extensively followed in the statute 
 laws of this country. 
 
 20. To what extent have the revised statutes altered the former law of 
 New York ? 515 
 
 So far, as to require the signature of the testator, and of the witnesses, 
 to be at the end of the will ; and the testator, when he signs or acknow- 
 ledges the will, is to declare the instrument to be his last will ; and he is to 
 subscribe or acknowledge the will, in the presence of each witness ; and 
 the witnesses are to, subscribe their names at the request of the testator. 
 
 21. Have not the English court, from a disposition to favour wills, de- 
 parted from the strict construction and obvious meaning of the statute of 
 frauds ? 515 
 
 They have, and thereby opened a door to very extensive litigation. It 
 was held to be sufficient, that the testator wrote his name at the top of the 
 will, by way of recital ; and his name, so insertedj was deemed signing the 
 will within the purview of the statute. 
 
 22. Has not the doctrine of a constructive presence of the testator been 
 carried very far 1 515 
 
 Yes : and it has been decided that if the witnesses were within view, 
 and where the testator might, or had the capacity to see them, with some 
 little effort, if he had the desire, though in reality he did not, they were to 
 be deemed subscribing witnesses in his presence. 
 
 23. Has it not been further held, that if the testator produced to the
 
 LEC. LXVIII.] REDUCED TO QUESTIONS AND ANSWERS. 237 
 
 witnesses a will already signed and acknowledged the signature in their 
 presence, it was a sufficient compliance with the statute ? 515 
 
 Yes. 
 
 24. Is it held necessary that the witnesses should attest in the presence 
 of each other ? 516 
 
 It is not, nor is it necessary they should attest every page or sheet, 
 or that they should know the contents. 
 
 25. Must the subscribing witnesses all attest at one time ? 516 
 It is not particularly requisite. 
 
 26. Was a will of chattels good without writing at common law ? 516 
 
 It appears it was, in ignorant ages, there was no other way of making 
 a will but by words or signs. But, by the time of Henry VIII., and es- 
 pecially in the ages of Elizabeth and James, letters had become so gen- 
 erally cultivated, and reading and writing so widely diffused, that verbal 
 unwritten, or nuncupative wills, were confined to extreme cases, and held 
 to be justified only upon the plea of necessity. 
 
 27. What has the New York revised statutes declared, respecting nun- 
 cupative or unwritten wills ? 517 
 
 They have declared, that no nuncupative or unwritten will, shall not 
 be valid, unless made by a soldier while in actual military service, or by 
 a marine while at sea. 
 
 28. What is required in the English ecclesiastical courts, respecting a 
 nuncupative will ? 513 
 
 That it be proved by evidence more strict and stringent, than that 
 applicable to a written will, even in addition to all the requisites prescribed 
 by the statute of frauds. 
 
 29. How are the laws of Louisiana in respect to last wills ? 519 
 
 Wills, under the code of that state, are of three kinds ; nuncupative 
 or open, mystic or sealed, and olographic. They are all to be in writing. 
 The first, or nuncupative testament, is to be made by a public act before 
 a notary, in the presence of three, or five witnesses, according to circum- 
 stances ; and to be signed by the testator and witnesses ; or it may be 
 executed by his private signature, in the presence of three, or five, or 
 seven witnesses, according to circumstances, and they are to subscribe it. 
 The second, or mystic testament, is to be signed by the testator, and sealed 
 up, and presented to a notary and seven witnesses, with a declaration that 
 it is his will ; and the notary and witnesses are to subscribe the super- 
 scription. The third, or olographic testament, is one entirely written, and 
 signed by the testator, and subject to no other form, and may be made out 
 of the state.
 
 238 KENT'S COMMENTARIES, [VOL. iv. 
 
 30. Is not a will, duly made according to law, in its nature ambulatory 
 during the testator's life, and revocable at his pleasure ? 520 
 
 Yes. But to prevent the admission of loose and uncertain testimony, 
 countervailing the operation of an instrument made with the formalities 
 prescribed, it is provided that the revocation must be by another instrument 
 executed in the same manner ; or else by burning, cancelling, tearing, or 
 obliterating the same, by the testator himself, or in his presence, and by 
 his directions. 
 
 31. May not a will be revoked by implication, or inference of law ? 
 521 
 
 Yes. And these revocations are not within the purview of the stat- 
 ute ; and they have given rise to some of the most difficult and interesting 
 discussions existing on the subject of wills. They are founded upon the 
 reasonable presumption of an alteration of the testator's mind, arising from 
 circumstances since the making of the will, producing a change in his 
 previous obligations and duties. The case stated by Cicero, is often al- 
 luded to, in which the father, on the report of the death of his son, who 
 was then abroad, altered his testament, and appointed another person to 
 be his heir. The son returned after the father's death, and the centum- 
 viri restored the inheritance to him. There is a case mentioned in the 
 Pandects to the same effect ; and it was the general doctrine of the Ro- 
 man law, that the subsequent birth of a child, unnoticed in the will, an- 
 nulled it. This is the rule in those countries which have generally adopted 
 the civil law, Testamenta rumpiuntur agnations posthumi ; and there is not 
 perhaps, any code of civilized jurisprudence, in which this doctrine of 
 implied revocation does not exist, and apply when the occurrence of new 
 social relations and moral duties raises a necessary presumption of a 
 change of intention in the testator. 
 
 32. In what court was the first case that recognized in England, the 
 rule, that the subsequent birth of a child was a revocation of a will of 
 personal property ? 522 
 
 It was decided by the court of delegates upon appeal, in the reign 
 of Charles II. ; and it was grounded upon the law of the civilians. 
 
 33. Can a testator devise all his estate to strangers, and disinherit his 
 children 1 525 
 
 There is no doubt of it. This is the English law, and the law in all 
 the states, with the exception of Louisiana. Children are deemed to hare 
 sufficient security in the affection of parents, that this unlimited power of 
 disposition will not be abused. If, however, the testator has not given the 
 estate to a competent devisee, the heir may take it, notwithstanding the 
 testator may have clearly declared his intention to disinherit him. 
 
 34. If the will disposes of the whole estate, and the testator afterwards 
 marries, and has issue born in his lifetime, or after his death, and the wife
 
 LEC. LXVIII.] REDUCED TO QOEST10NS AND ANSWERS. 239 
 
 or issue be living at his death, is the will deemed revoked by the New 
 York revised statutes ? 527 
 
 Yes ; unless the issue be provided for by the will, or by a settlement, 
 or unless the will shows an intention not to make any provision. 
 
 35. Is the will of a feme sole revoked by her marriage ? 527 
 
 It is ; and this is an old and settled rule of law ; and the reason 
 of it is, that the marriage destroys the ambulatory nature of the will, and 
 leaves it no longer subject to the wife's control. 
 
 36. Is a will deemed to be revoked by a second will ? 528 
 
 Yes ; provided it contains words of revocation, or makes a different 
 disposition of the property. 
 
 37. Will a sale of the estate devised, operate as a revocation ? 528 
 
 It will ; for the testator must die while owner of the land, or the will 
 cannot have effect upon it. 
 
 38. Will a valid agreement, or covenant to convey lands, which equity 
 will specifically enforce, also operate in equity as a revocation of a pre- 
 vious devise of the same ? 528 
 
 It will. It is as much a revocation of the will in equity, as a legal 
 conveyance of the land would be at law ; for the estate, from the time of 
 the contract, is considered as the real estate of the vendee. 
 
 39. What is a codicil? 531 
 
 A codicil is an addition, or supplement to a will, and must be executed 
 with the same solemnity. 
 
 40. What says the New York revised statutes, respecting the destruc- 
 tion or revocation of a second will, reviving the first ? 532 
 
 They have dispensed with all refinements on this point. In no case 
 does the destruction or revocation of a second will, revive the first, unless 
 the intention to revive it be declared. Those statutes have essentially 
 changed the law on the subject of these constructive revocations, and res- 
 cued it from the hard operation of those technical rules, of which we 
 have complained, and placed it on juster, and more rational grounds. 
 
 41. What is the first and great object of enquiry in the construction of 
 a will? 533 
 
 The intention of the testator ; and to this object, technical rules are, 
 to a certain extent, made subservient. 
 
 42. Is the word heirs requisite to convey a fee ? 535 
 
 It is not ; but the other words denoting an intention to pass the 
 

 
 240 KENT'S COMMENTARIES, REDUCED TO QUEST. AND ANS. [VOL. iv. 
 
 whole interest of the testator as a devise of all my estate, all my interest, 
 all my property, my whole remainder, all I am worth or own, all my 
 right, and my title, or, all I shall die possessed of, and many other ex- 
 pressions of the like import, will carry an inheritance, if there be nothing 
 in the other parts of the will to limit or control the operation of the 
 words. 
 
 END OF VOLUME FOUR.
 
 INDEX. 
 
 The first figures refer to the question, the last to the page. 
 
 Accession 
 
 2, 95 
 
 Bills 
 
 
 Adultery 
 
 
 acceptance 
 
 6, 129 
 
 divorce for 
 
 3, 73 
 
 conditional acceptance 
 
 8, 130 
 
 punishment for 
 
 , 4, ib. 
 
 acceptor 
 
 9, ib. 
 
 Agent 
 
 
 supra protest 
 
 10, ib. 
 
 how created 
 
 2, 108 
 
 endorsement 
 
 11, 131 
 
 as to real estate 
 
 4, 109 
 
 in blank 
 
 14, ib. 
 
 assumed agent 
 
 6, ib. 
 
 after due 
 
 15, ib. 
 
 duty of 
 
 8, ib. 
 
 note on demand 
 
 16, ib. 
 
 when he exceeds his authority 
 
 9, 110 
 
 demand 
 
 17, 132 
 
 right to sell on credit 
 
 13, 111 
 
 notice of non acceptance 
 
 18, ib. 
 
 to allow set off 
 
 14, ib. 
 
 demand of payment 
 
 19, ib. 
 
 del credere 
 
 16, 112 
 
 addition to bills 
 
 20, ib 
 
 cannot pledge 
 
 17, ib. 
 
 days of grace 
 
 22, 133 
 
 right to deliver goods 
 
 19, 113 
 
 requisites to fix drawer 
 
 23, ib, 
 
 liability of 
 
 20, ib. 
 
 reasonable notice 
 
 24, ib. 
 
 right of owner to collect 
 
 22, 114 
 
 notice not required 
 
 26, 134 
 
 public and private 
 
 23, ib. 
 
 discharge of drawer 
 
 27, ib. 
 
 no right to employ sub-agent 
 
 24, ib. 
 
 damages 
 
 32, 134 
 
 right to lien 
 
 26, 115 
 
 bill of lading 
 
 6, 146 
 
 how cease 
 
 29, ib. 
 
 endorsement of 
 
 8, ib. 
 
 Alien 
 
 5, 67 
 
 Blockade 
 
 6, 131 
 
 right to hold estate 
 
 6, 68 
 
 Bottomry 
 
 1, 163 
 
 how become a citizen 
 
 10, ib. 
 
 
 
 enemy 
 
 1, 22 
 
 Cartel ships 
 
 14, 21 
 
 Allegiance 
 
 2, 67 
 
 Carriers 
 
 8, 108 
 
 Allies 
 
 9, 36 
 
 Caveat emptor 
 
 12, 102 
 
 Ambassadors 
 
 11, 17 
 
 Chattel 
 
 2, 94 
 
 American union 
 
 2, 39 
 
 real 
 
 4, ib. 
 
 Apprentices 
 
 7, 89 
 
 in remainder 
 
 9, ib. 
 
 Attorneys 
 
 
 sale of 
 
 12, 102 
 
 how execute powers 
 
 21, 114 
 
 devise of 
 
 26, 237 
 
 Auctioneers, 
 
 22 104 
 
 Charter party 
 
 1, 145 
 
 Average 
 
 
 duty of owner 
 
 3, ib. 
 
 general 
 
 2, 150 
 
 demurrage 
 
 4, ib 
 
 special 
 
 73, 162 
 
 duty of master 
 
 9, 146 
 
 
 
 deviation 
 
 10, 147 
 
 Bailment 
 
 1, 106 
 
 capture of ship 
 
 11, ib. 
 
 species of 
 
 2, 107 
 
 delivery of goods 
 
 12, ib. 
 
 rules relating to bailees 
 
 7, ib. 
 
 perils of the sea 
 
 14, ib. 
 
 Bankruptcy 
 
 4, 98 
 
 duties of shipper 
 
 15, ib 
 
 Bills 
 
 
 dead freight 
 
 17, 148 
 
 of credit 
 
 2, 54 
 
 prohibition to land 
 
 19, ib. 
 
 of exchange 
 
 1, 128 
 
 general average 
 
 24, 150 
 
 parties to 
 
 2, ib. 
 
 salvage 
 
 29, 151 
 
 requisites to 
 
 4, ib. 
 
 Checks 
 
 * 3, 128 
 
 rights of holder 
 
 5, 129 
 
 Child 
 
 3, 83 
 
 31 
 
 

 
 242 
 
 INDEX. 
 
 Circuit Court 
 
 9, 47 
 
 Deed 
 
 
 jurisdiction of 
 
 10, ib. 
 
 recording of 
 
 32, 226 
 
 Coach proprietors 
 
 10, 108 
 
 form of 
 
 40, 227 
 
 Contraband of war 
 
 2, 30 
 
 consideration of 
 
 49, 228 
 
 insurance of 
 
 12, 102 
 
 description in 
 
 52, 229 
 
 Common recovery 
 
 39, 130 
 
 habendum 
 
 55, ib. 
 
 Contracts 
 
 
 warranty 
 
 58, ib. 
 
 with an enemy 
 
 13, 21 
 
 of feoffment 
 
 71, 231 
 
 laws impairing 
 
 6, 55 
 
 of grant 
 
 77, 232 
 
 of marriage 
 
 5, 70 
 
 of bargain and sale 
 
 86, 233 
 
 between husband and wife 
 
 1, 75 
 
 Demurrage 
 
 4, 145 
 
 executory 
 
 1, 100 
 
 Descent 
 
 1, 217 
 
 how divided 
 
 2, ib. 
 
 Devise 
 
 1, 205 
 
 executed 
 
 3, ib. 
 
 District court 
 
 12, 47 
 
 qualifications of parties 
 
 4, ib. 
 
 admiralty jurisdiction of 
 
 1,51 
 
 lunacy 
 
 5, ib. 
 
 Divorce 
 
 
 intoxication 
 
 6, ib. 
 
 provisions in New York 
 
 1, 72 
 
 imbecility of mind 
 
 7, 101 
 
 how affect children 
 
 5, 73 
 
 made abroad 
 
 8, ib. 
 
 foreign, 
 
 7, 74 
 
 consideration of 
 
 9, 102 
 
 as to dower 
 
 50, 189 
 
 of sale 
 
 11, 102 
 
 Domicil 
 
 
 memorandum of 
 
 17, 103 
 
 commercial 
 
 2, 22 
 
 interpretation of 
 
 25, 106 
 
 in Asia and Africa 
 
 4 ib. 
 
 of partnership 
 
 12, 122 
 
 of intestates 
 
 8, 99 
 
 of affreightment 
 
 1, 145 
 
 Dower 
 
 26, 186 
 
 dissolution of 
 
 31, 151 
 
 requisites to 
 
 29, 187 
 
 of insurance 
 
 1, ib. 
 
 leaches of husband 
 
 39, 188 
 
 of bottomry, 
 
 1, 163 
 
 how defeated 
 
 45, 189 
 
 respondentia 
 
 3, ib. 
 
 how barred 
 
 59, 191 
 
 Congress 
 
 1, 39 
 
 
 
 privileges of 
 
 10, 40 
 
 
 
 power to regulate commerce 
 
 8, 57 
 
 Embargo 
 
 8, 20 
 
 Consideration 
 
 10, 102 
 
 Emblements 
 
 67, 192 
 
 Coparceners 
 
 16, 216 
 
 Enemy 
 
 
 Corporations 
 
 1, 89 
 
 contract with 
 
 13, 21 
 
 object of 
 
 2, ib. 
 
 alien 
 
 1, 22 
 
 antiquity of 
 
 4, 90 
 
 collonial trade of 
 
 7, 23 
 
 capacities of 
 
 5, ib. 
 
 pass of, sailing under 
 
 8, ib. 
 
 of learning 
 
 7, 91 
 
 property of, in neutral ships 
 
 8, 29 
 
 political and commercial 
 
 8, 91 
 
 captor's right to freight 
 
 10, ib. 
 
 now divided 
 
 9, ib. 
 
 carrying despatches 
 
 12, 33 
 
 sole 
 
 10, ib. 
 
 right of search 
 
 13, ib. 
 
 aggregate 
 
 11, ib. 
 
 Escheat 
 
 3, 220 
 
 religious 
 
 13, 92 
 
 Escrowe 
 
 27, 225 
 
 civil 
 
 16, ib. 
 
 Estates 
 
 1, 175 
 
 public 
 
 17, ib. 
 
 in fee simple 
 
 7, 176 
 
 powers of 
 
 18, ib. 
 
 word heirs 
 
 17, 177 
 
 quasi 
 
 19, ib. 
 
 qualified fees 
 
 19, 178 
 
 Courts 
 
 
 conditional 
 
 27, 179 
 
 supreme of U. S. 
 
 2, 46 
 
 statute de donix 
 
 33, ib. 
 
 circuit 
 
 9, 47 
 
 tail 
 
 35, ib. 
 
 district 
 
 12, ib. 
 
 common recovery 
 
 39, 180 
 
 territorial 
 
 13, 48 
 
 for life 
 
 1, 183 
 
 Curtesy 
 
 12, 185 
 
 freehold 
 
 2, ib. 
 
 requisites to 
 
 15. ib. 
 
 how created 
 
 6, 184 
 
 to what apply 
 
 25, 186 
 
 per auter vie 
 
 7, ib. 
 
 
 
 by the curtesy 
 
 12, 185 
 
 Deed 
 
 4, 222 
 
 in dower 
 
 26, 186 
 
 how executed 
 
 14, 224 
 
 in jointure 
 
 53, 189 
 
 in England 
 
 19, ib. 
 
 for years 
 
 2, 194 
 
 sealing of 
 
 22, 225 
 
 at will 
 
 6, ib. 
 
 delivery of 
 
 23, ib. 
 
 at sufferance 
 
 7, 195
 
 243 
 
 Estates 
 
 
 Hereditaments 
 
 
 upon condition 
 
 1, 195 
 
 servitudes 
 
 8, 170 
 
 in deed 
 
 4, ib. 
 
 running waters 
 
 9, ib. 
 
 in mortgage 
 
 1, 196 
 
 easements 
 
 10, ib. 
 
 in remainder 
 
 1, 210 
 
 annuities 
 
 12, ib. 
 
 by devise 
 
 1, 205 
 
 rents 
 
 13, 171 
 
 in trust 
 
 1, 208 
 
 Husband and wife 
 
 
 In reversion 
 
 1, 213 
 
 contracts between 
 
 1,75 
 
 iu joint tenancy 
 
 2, 214 
 
 rights of husband 
 
 2, ib. 
 
 in coparcenary 
 
 16, 216 
 
 as to life estate of the wife 
 
 4, 76 
 
 by escheat 
 
 3, 2-20 
 
 as to chattels real 
 
 7, ib. 
 
 by forfeiture 
 
 4, 221 
 
 as to choses in action 
 
 10, 77 
 
 by execution. 
 
 6, ib. 
 
 wife's debts dum sola, 
 
 13, ib. 
 
 by deed 
 
 1, 222 
 
 joinder in action 
 
 15, ib. 
 
 by will or devise 
 
 1, 233 
 
 assignment in bankruptcy 
 
 16, ib. 
 
 Executory devise 
 
 1, 205 
 
 wife's right to provision in 
 
 
 history of 
 
 4, ib. 
 
 equity 
 
 17, 78 
 
 as to real estate 
 
 7, 206 
 
 settlement on the wife 
 
 19, ib. 
 
 to commence in future 
 
 10, ib. 
 
 personal property of wife 
 
 20, ib. 
 
 
 
 liability of husband for wife's 
 
 
 Fealty 
 
 2, 172 
 
 contracts 
 
 22, 79 
 
 Fee 
 
 
 elopement of wife 
 
 23, ib. 
 
 simple 
 
 7, 176 
 
 torts and frauds of wife 
 
 24, 80 
 
 qualified 
 
 19, 178 
 
 when wife may contract 
 
 25, ib. 
 
 conditional 
 
 -27, 179 
 
 how wife may hold property 
 
 26, 80 
 
 tail 
 
 35, ib. 
 
 when sue her husband 
 
 27, 81 
 
 Feoff rnent 
 
 71, 231 
 
 wiles covenant to warranty 
 
 28, ib. 
 
 Feudal System 
 
 1, 172 
 
 antenuptial agreements 
 
 29, ib. 
 
 Forfeiture 
 
 1, 220 
 
 authority of husband 
 
 29, 82 
 
 in the United States 
 
 4, 221 
 
 rule as to being witness 
 
 3. ib, 
 
 Freehold 
 
 2, 183 
 
 
 
 Freight 
 
 16, 147 
 
 Indians 
 
 7, 43 
 
 dead freight 
 
 17, 148 
 
 Infant 
 
 1, 86 
 
 lien for freight 
 
 18, ib. 
 
 acts of binding 
 
 2, ib. 
 
 general average 
 
 24, 150 
 
 defendant in equity 
 
 6, 87 
 
 salvage 
 
 29, 151 
 
 Inheritance 
 
 4, 217 
 
 insurance of 
 
 19, 154 
 
 Insurance 
 
 
 abandonment of ship 
 
 72, 162 
 
 Marine insurance 
 
 1, 14 
 
 
 
 who may be insured 
 
 2, 152 
 
 
 
 who may insure 
 
 3, ib. 
 
 Gifts 
 
 1, 99 
 
 ship specified 
 
 4, ib. 
 
 how affect creditors 
 
 2, ib. 
 
 whomsoever it may concern 
 
 7, ib. 
 
 revocation of 
 
 3, ib. 
 
 by agent 
 
 9, ib. 
 
 Goods 
 
 
 assignment of subject matter 
 
 13, 153 
 
 confusion of 
 
 4, 95 
 
 of contraband 
 
 16, ib. 
 
 delivery of 
 
 18, 103 
 
 of neutral goods 
 
 17, ib. 
 
 symbolical delivery 
 
 20, 104 
 
 seaman's wages 
 
 18, 154 
 
 Grant 
 
 77, 232 
 
 of freight 
 
 19, ib. 
 
 Guaranty 
 
 34, 134 
 
 commencement of sink 
 
 20, ib. 
 
 Guardian 
 
 1, 83 
 
 of profits 
 
 21, ib. 
 
 in socage 
 
 7, 84 
 
 open policy 
 
 22, ib. 
 
 chancery 
 
 11, ib. 
 
 valued policy 
 
 23, ib. 
 
 how appointed 
 
 13, 85 
 
 wager policy 
 
 27, 155 
 
 responsibility of 
 
 14, ib. 
 
 sufficient interest 
 
 28, ib. 
 
 ad litem 
 
 6, 87 
 
 re-assurance 
 
 29, ib. 
 
 
 
 double insurance 
 
 30, ib. 
 
 Habeas corpus 
 
 15, 66 
 
 representation. 
 
 34, 156 
 
 Heir 
 
 4, 217 
 
 seaworthy 
 
 36, ib. 
 
 posthumous 
 
 9, 218 
 
 warranty 
 
 38, ib. 
 
 Hereditaments 
 
 
 survey 
 
 39, 157 
 
 corporeal 
 
 1, 168 
 
 risks insured 
 
 41, ib. 
 
 incorporeal 
 
 2, 169 
 
 illicit trade 
 
 43, ib-
 
 244 
 
 INDEX. 
 
 Marine Insurance 
 
 memorandum articles 44, ib. 
 
 loss by worms 46, ib. 
 
 missing vessel 47, 158 
 
 cause of loss 48, ib. 
 
 pirates, rovers and thieves 51, ib. 
 
 arrests and restraints 52, ib. 
 
 against fire 54, 145 
 
 barratry 55, ib. 
 
 at and from 56, ib. 
 
 deviation 59, ib. 
 
 letters of marque 62, 160 
 
 total loss 63, ib. 
 
 abandonment 64, ib. 
 
 french ordinance as to aban- 
 donment 67, 161 
 
 shipwreck 68, ib. 
 
 damage goods, rule in case of 70, ib. 
 
 quamum of injury, rule as to 71, 162 
 
 freight on abandonment of 
 
 ship 72, ib. 
 
 partial loss 73, ib. 
 
 return of premium 74, 163 
 
 Insurance upon lives 1, 166 
 
 against fire 3, ib. 
 
 settlement of loss 8, 167 
 
 Issue, lailure of 13, 207 
 
 Innkeeper 5, 107 
 
 Intoxication 6, 100 
 
 Joint tenant 2, 214 
 
 as to husband and wife 7, ib. 
 
 how destroyed 9, 215 
 
 alienation by 10, ib. 
 
 Jointure 53, 189 
 
 Judiciary department 1, 45 
 
 Judicial construction of the acts 
 
 of congress 1, 41 
 
 on the bank act 4, 42 
 
 on taxation 5, ib. 
 
 on bills of credit 2, 54 
 
 on ex post facto laws 3, ib. 
 
 on the obligation of contracts 6, 55 
 
 Judicial decisions 6, 61 
 
 Judgment foreign 8, 74 
 
 property acquired by 4, 98 
 
 Law 
 
 of nations $. 2, 9 
 of what composed 3, ib. 
 how divided 6, 10 
 antiquity of 9, ib. 
 among the Greeks and Romans 10, ib. 
 how in the middle ages 13, 11 
 how improved 16, 12 
 as to change of government 3, 16 
 as to adjoining seas 4, ib. 
 freedom of trade 6, ib. 
 as to passage over foreign terri- 
 tory 8, ib. 
 as to navigable rivers 9, 17 
 criminals fleeing from justice 10, ib. 
 as to ambassadors 11, ib. 
 
 Law 
 
 as to assistance in war 2, 19 
 
 right to declare war 5, 20 
 capture of enemy's properly 7, ib. 
 
 embargo 8, ib. 
 
 letters of marque 9, 21 
 
 as to marriage 14, 72 
 as lo the right to confiscate 
 
 debts 10, ib. 
 trading with enemy 12, ib. 
 contracts with enemy 13, ib. 
 cartel ships 14, ib. 
 property in transitu 9, 23 
 as to retaliation 2, 24 
 as to prizes 8, 25 
 as to neutrals 1, 27 
 contraband of war 2, 30 
 as to blockade 6, 33 
 visitation and search 13, 33 
 neutral documents 15, ib. 
 as to a truce 1, 34 
 as to passports 4. 35 
 enemy's licence to trade 6, ib. 
 treaties of peace 7, ib. 
 as to public domain 8, ib. 
 as to allies 9, 86 
 as to pirates 3, 37 
 ex post facto laws 3, 54 
 impairing the obligation of con- 
 tracts 6, 55 
 of naturalization 5, 57 
 municipal 1, 58 
 sources of common law 2, 61 
 civil by whom digested 1, 61 
 maritime 1, 117 
 
 Libel 10, 65 
 
 how considered 11, ib. 
 
 evidence in case of 13, 66 
 
 Lien 
 
 of United States 
 of factors and agents 
 how created 
 
 Lunatic 
 
 Maritime law 
 antiquity of 
 Consolato del mari 
 laws of Oleron 
 Hanseatic League 
 of Wisbuy 
 French ordinance 
 English marine law 
 of the United Slates 
 
 Maritime Loans 
 bottomry 
 respondentia 
 Jiability of lender in 
 maritime interest 
 as to seamen's wages 
 as to assignment of 
 
 Marriage 
 consent of parties 
 age required 
 
 2, 42 
 26, 115 
 27, ib. 
 5, 100 
 
 1, 117 
 
 2, ib. 
 5, 118 
 
 5, ib. 
 7, ib. 
 
 6, ib. 
 
 9, 119 
 
 10, ib. 
 
 11, ib. 
 
 2, 163 
 
 3, ib. 
 10, 165 
 
 14, ib. 
 
 15, ib. 
 
 16, ib. 
 1, 69 
 
 5, 70 
 
 6, ib.
 
 INDEX. 
 
 245 
 
 Marriage 
 
 pollygamy 
 
 intermarriage of relations 
 
 consent of parents 
 
 form of contract 
 
 settlement 
 Master 
 
 of merchant vessels, see servant 
 
 grand bill of sale 
 
 mortgage of 
 
 charterer 
 
 registry of 
 
 transfer of 
 
 coasting trade 
 
 part owners of 
 
 employment of 
 
 persons employed in 
 
 authority of master 
 
 pilots 
 
 provisions of congress 
 
 extra wages 
 
 sickness of seamen 
 
 death of seamen 
 
 capture 
 
 lien of seamen 
 
 seaworthy 
 
 loss by collision 
 Militia 
 Mortgage 
 
 equity, doctrine of 
 
 rights of mortgagor 
 
 rights of mortgagee 
 
 equity of redemption 
 
 opening biddings 
 
 Nations 
 
 law of 
 
 rights of. in a state of peace 
 
 division of territory 
 
 in a state of war 
 
 obligation of contracts upon 
 Natives 
 Next of kin 
 Neutrals 
 
 rights and duties of 
 
 rules of neutrality established by 
 congress 
 
 property of, on armed beligerent 
 vessels 
 
 rule as to documents 
 Nudem paclum, 
 
 Patent rights 
 Parents 
 
 duties of 
 
 Part owners of merchant ships 
 Partnership 
 
 as to joint possession 
 
 joint purchase 
 
 unincorporated companies 
 
 incorporated companies 
 
 how formed 
 
 
 Partnership 
 
 
 7, 70 
 
 extent of 
 
 14, 122 
 
 9, ib. 
 
 dormant partners 
 
 15, ib. 
 
 10, 71 
 
 nominal 
 
 16, ib. 
 
 13, ib. 
 
 limited 
 
 18, 123 
 
 53, 189 
 
 interest of partners in their 
 
 
 
 stock 
 
 19, 123 
 
 1, 136 
 
 as to real estate 
 
 20, 123 
 
 2, 137 
 
 as to ship owners 
 
 21, 124 
 
 4, ib. 
 
 partner may bind the firm 
 
 22, ib. 
 
 5, ib. 
 
 as to pledging 
 
 24, 125 
 
 6. 138 
 
 guaranty 
 
 25, ib. 
 
 7, ib. 
 
 as to acts by deed 
 
 26, ib. 
 
 8, 139 
 
 dissolution of 
 
 27, 126 
 
 9, ib. 
 
 death of partner 
 
 29, ib. 
 
 10, ib. 
 
 insanity of 
 
 20, ib. 
 
 1, 140 
 
 bankruptcy of partner 
 
 31, 127 
 
 2, ib. 
 
 consequences of dissolution 
 
 32, ib. 
 
 4, 141 
 
 notice of dissolution 
 
 34, ib. 
 
 6, ib. 
 
 Passport 
 
 4, 34 
 
 11, 143 
 
 Peace 
 
 I, 15 
 
 12, ib. 
 
 treaty of 
 
 7, 35 
 
 14, 144 
 
 Pilots 
 
 4, 141 
 
 15, ib. 
 
 Piracy 
 
 3, 71 
 
 17, ib. 
 
 Plunder 
 
 1, 24 
 
 5, 146 
 
 Power 
 
 1, 211 
 
 22, 149 
 
 how classed 
 
 5, ib. 
 
 9, 43 
 
 special 
 
 9, 212 
 
 1, 196 
 
 in New York 
 
 13, ib. 
 
 15, 198 
 
 President 
 
 1. 44 
 
 16, ib. 
 
 how appointed 
 
 -2', ib. 
 
 20, 99 
 
 powers of 
 
 3, 45 
 
 29, 200 
 
 how removed 
 
 4, ib. 
 
 35, ib. 
 
 Privateers 
 
 3, 24 
 
 
 liability 
 
 5, 25 
 
 
 foreign commissions 
 
 6, ib. 
 
 3, 9 
 
 commissions from different 
 
 
 1, 15 
 
 powers 
 
 7, ib. 
 
 4, 16 
 
 Prize 
 
 
 1, 19 
 
 law of 
 
 8, 25 
 
 2, ib. 
 
 how vested in the captor 
 
 9, 26 
 
 1, 67 
 
 in neutral ports 
 
 7, 29 
 
 7, 98 
 
 courts of 
 
 2, 51 
 
 
 Property 
 
 
 1,27 
 
 original method of acquiring 
 
 1, 93 
 
 >y 
 
 personal 
 
 1, ib. 
 
 6, 28 
 
 division of 
 
 3, 94 
 
 t 
 
 absolute 
 
 6, ib. 
 
 11, 29 
 
 qualified 
 
 7, ib. 
 
 11, 33 
 
 title to personal property 
 
 1, 95 
 
 9, 102 
 
 by accession 
 
 2, ib. 
 
 
 by intellectual labour 
 
 5, 96 
 
 6, 96 
 
 distribution of personal 
 
 7, 98 
 
 1, 8-2 
 
 real 
 
 1, 175 
 
 2, ib. 
 
 Public domain 
 
 
 9, 139 
 
 power to alienate 
 
 8, 35 
 
 1, 120 
 
 right to 
 
 6, 43 
 
 5, ib. 
 
 Purchase 
 
 1, 222 
 
 6, ib. 
 
 
 
 11, 121 
 
 Ransom bill 
 
 12, 26 
 
 12, ib. 
 
 Records 
 
 8, 43 
 
 13, 122 
 
 Rents 
 
 13, 171
 
 246 
 
 INDEX. 
 
 Rents 
 
 
 Tenant 
 
 
 remedy for 
 
 20, 172 
 
 for life 
 
 3, 183 
 
 Religion 
 
 16, 66 
 
 per auter vie 
 
 7, 184 
 
 Remainder 
 
 3, 201 
 
 by the curtesy 
 
 12, 185 
 
 cross 
 
 6, 202 
 
 requisites 
 
 29, 187 
 
 vested 
 
 8, ib. 
 
 in dower 
 
 26, 186 
 
 contingent 
 
 10, ib. 
 
 for years 
 
 2, 194 
 
 particular estate 
 
 17, 204 
 
 at will 
 
 6, ib. 
 
 Representatives, house of 
 
 6, 40 
 
 at sufferance 
 
 7, 195 
 
 Reversion 
 
 2, 213 
 
 joint 
 
 2, 214 
 
 incidents to 
 
 8, 214 
 
 in common 
 
 19, 216 
 
 Rights 
 
 
 Tenure 
 
 
 of persons 
 
 1, 63 
 
 feudal 
 
 1, 172 
 
 absolute 
 
 2, ib. 
 
 Title 
 
 
 relative 
 
 3, ib. 
 
 to personal property 
 
 1, 95 
 
 enjoyment of 
 
 5, ib. 
 
 by accession 
 
 2, ib. 
 
 provisions in defence of 
 
 7, 64 
 
 by confusion 
 
 4, ib. 
 
 patent 
 
 6, 96 
 
 by intellectual labour 
 
 5, 96 
 
 copy 
 
 7, ib. 
 
 by transfer by act of law 
 
 1, 97 
 
 of stoppage in transitu 
 
 24, 105 
 
 by forfeiture 
 
 2, ib. 
 
 of common 
 
 4, 169 
 
 by judgment 
 
 3, ib. 
 
 of way 
 
 5, ib. 
 
 by bankruptcy 
 
 4, 98 
 
 riparian 
 
 6, ib. 
 
 by intestacy 
 
 6, ib. 
 
 as to highways 
 
 7, 170 
 
 by gift 
 
 1, 99 
 
 
 
 to merchant ships 
 
 1, 136 
 
 Safe conducts 
 
 2, 37 
 
 foundation of, to land 
 
 1, 167 
 
 Sale 
 
 11, 102 
 
 in fee simple 
 
 7, 176 
 
 when absolute 
 
 15, 103 
 
 by the curtesy 
 
 12, 185 
 
 memorandum of 
 
 17, ib. 
 
 in dower 
 
 26, 186 
 
 at auction 
 
 23, 105 
 
 by descent 
 
 21, 217 
 
 Senate of United States 
 
 1, 39 
 
 Things in action 
 
 8, 94 
 
 Seal 
 
 21, 225 
 
 Treaty 
 
 22, 13 
 
 Seamen 
 
 6, 141 
 
 of peace 
 
 ' 7, 35 
 
 Servants 
 
 1, 88 
 
 Trusts 
 
 14, 200 
 
 Shipwreck 
 
 68, 161 
 
 Truse 
 
 2, 34 
 
 Slaves 
 
 1, 88 
 
 
 
 trade in 
 
 10, 38 
 
 Use 
 
 1, 208 
 
 State governments 
 
 1, 52 
 
 shifting 
 
 7, ib. 
 
 restrictions on 
 
 1, 54 
 
 springing 
 
 8, 209 
 
 tax by 
 
 6, 57 
 
 contingent 
 
 9, ib. 
 
 public and private 
 
 12, 60 
 
 objections to 
 
 12, ib. 
 
 Sstatute 
 
 9, 59, 
 
 ., 
 
 
 interpretation of 
 
 13, ib. 
 
 Waste 
 
 70, 192 
 
 temporary 
 
 14, ib. 
 
 Will or devise 
 
 1, 233 
 
 of frauds 
 
 20, 104 
 
 parties to 
 
 6, 234 
 
 auction sales, as regards to 
 
 23, 105 
 
 as to corporations 
 
 12, ib. 
 
 Stoppage 
 
 
 in New York 
 
 13, 235 
 
 in transitu 
 
 24, 105 
 
 by joint tenant 
 
 17, ib. 
 
 Socage 
 
 1, 173 
 
 form of execution 
 
 18, ib. 
 
 Supreme- Court 
 
 
 statute of frauds 
 
 19, 286 
 
 jurisdiction of 
 
 7, 46 
 
 subscribing witness 
 
 24, 237 
 
 as to common law 
 
 1, 49 
 
 as to chattels 
 
 26, ib. 
 
 where an alien is a party 
 
 3, ib 
 
 in Louisiana 
 
 29, ib. 
 
 where a corporation is a party 
 
 5, 50 
 
 revocation of 
 
 31, 238 
 
 as to trustees 
 
 6, ib. 
 
 to strangers 
 
 33, ib. 
 
 where a state is a party 
 
 7, ib. 
 
 codicil 
 
 39, 239
 
 GLOSSARY. 
 
 Ab initio, 
 
 Ad litem, 
 
 Ad locum rei sites, 
 
 A mensa. el thoro, 
 
 Animo furandi, 
 
 Autre fois aquit, 
 
 A'jua currit- et debet currere, 
 
 A vinculo matrimonii, 
 A provisione viri, 
 
 Bonafide, 
 Casusfaderis, 
 
 Causa metus, 
 Causa impotentia, 
 Causa mortis, 
 Cestui qui trust, 
 Champerty, 
 Chose in action, 
 
 Collegium fabrorum, 
 Commercia belli, 
 Consolato del mare, 
 Coinitas inter communitates f 
 Commendam, 
 
 Como datum, 
 Caveat emptor, 
 
 De facto, 
 Del credere, 
 De bonis non, 
 Depositum, 
 
 De jure, 
 
 Dominium rectum, 
 Dominium utile, 
 Dum sola, 
 Durante mduitate, 
 
 Ex comitate, 
 
 Ex properia vigore, 
 
 Ex post facto, 
 
 Ex ceptio rei judicata? 
 
 Ex d-elicto, 
 
 Ex contractu, 
 
 From the beginning. 
 
 To litigate. 
 
 The place where the thing is situated 
 
 From board and bed. 
 
 With an intention of stealing. 
 
 Upon another time acquitted. 
 
 Water runs and owes to run, or should 
 
 be suffered to run. 
 
 From the band or obligation of marriage. 
 From provision of the man. 
 
 In good faith. 
 
 Case of the contract or within the con- 
 tract. 
 
 By reason of fear. 
 
 By reason of weekness or inability. 
 
 By reason of death. 
 
 One for whom a trust is created. 
 
 Purchasing suits at law. 
 
 A thing, debt, or right for which a suit 
 may be maintained. 
 
 A corporation or society of smiths. 
 
 Intercourse or correspondence of war. 
 
 Director or oracle of the sea; consulship. 
 
 Curtesy between communities. 
 
 Given to one in trust and for his advance- 
 ment. 
 
 A loan with interest. 
 
 Purchaser beware. 
 
 In fact, acting. 
 Of the credit. 
 Of goods not. 
 
 Goods placed with another t<3 keep -with- 
 out reward. 
 Of right, in law. 
 Authority to rule or govern. 
 Right or power to use. 
 While single. 
 During widowhood. 
 
 From curtesy. 
 From its own force. 
 After the act done. 
 Saving of the thing in judgment. 
 From failure in duty. 
 From contract. 
 32
 
 248 
 
 GLOSSARY. 
 
 Ex vifacti, 
 Ex parte, 
 Eo nomine, 
 En autre droit, 
 Eslerpement, 
 Elegit, 
 
 Femme sole, 
 Femme covert, 
 Fera naiura;, 
 Fieri facias, 
 Fidelitates, 
 Fidea commissa, 
 
 Habendum, 
 Habeas corpus, 
 
 Id ist cerium quod potest reddi cerium, 
 
 In esse, 
 
 In pari materia, 
 
 In delicto, 
 
 In transitu, 
 
 In rem, 
 
 In solido, 
 
 InfaccE ecclesia, 
 
 Inter vivos, 
 
 Ipsofaclo, 
 
 Jure gentium, 
 Jure mariti, 
 Jus accrescendi, 
 Jus post liminii, 
 
 Juris et de jure, 
 Jus disponendi, 
 Jetison, 
 Jure belli, 
 
 Lex loci contractus, 
 Lex domicilii, 
 Lex loci rei cita, 
 
 Lex fori, 
 
 Lis pendens, 
 
 Lege loci, 
 
 Locatio, 
 
 Locatio aperis faciendi, 
 
 Location cuslodia, 
 
 i summce minor in est, 
 Miilum in se, 
 JVIalum prokibitum, 
 Mandalum, 
 
 Aec erit alia lex Romcs, alia Athaenis, 
 alia nunc, alia, poal/iac, sed et omnes 
 gentes, et omni tcmpore una lex et sent- 
 piterna et immortalis continent. 
 
 Ry force of the act. 
 
 From one party. 
 
 By that name. 
 
 In right of another. 
 
 Waste 
 
 Elects, right to elect. 
 
 Unmarried woman. 
 
 Married woman. 
 
 Of a wild nature. 
 
 Cause to he made. 
 
 Of fidelity. 
 
 Things given to another in trust. 
 
 To have. 
 Have the body. 
 
 It is certain that may be rendered so. 
 
 In being. 
 
 Relating to like matters. 
 
 In the neglect of duty. 
 
 On the passage. 
 
 Against ihe thing. 
 
 All together as one. 
 
 In the face of the church. 
 
 Between living persons. 
 
 By the act itself. 
 
 By the law of nations. 
 
 By right of the marriage. 
 
 Law of accretion or increasings- 
 
 The law of those who were killed in battle 
 or returned Irom captivity, by provision 
 of which they were supposed never to 
 have been absent. 
 
 Of the law and by right. 
 
 Right of disposing of. 
 
 A thin? cast overboard. 
 
 Bv right of war. 
 
 Law of the place of the contract. 
 
 Law of the domicile. 
 
 Law of the place where the thing is sit- 
 uated. 
 
 Law of the court as to proceedings. 
 
 Suit depending. 
 
 By the local law. 
 
 Lettting for hire. 
 
 Letting of services for hire. 
 
 Letting to keep for hire, as upon storage, 
 or commission. 
 
 In the greater sum the less is contained. 
 
 Bad in itself. 
 
 Bad because prohibited. 
 
 Commission without reward. 
 
 It is not the law of Rome, neither of 
 Athens ; nor of now, nor hereafter, but 
 it is one law of all people, and of all 
 time, and is of universal and eternal 
 obligation.
 
 GLOSSARV. 
 
 249 
 
 Nan cmpns mentis, 
 Nudem fiactum, 
 Naif us )'o/e//s, 
 Nullius fitliits. 
 
 Not of sound mind- 
 A ri.iki-d agreement. 
 Un willinsr or willing. 
 No man's son. 
 
 plus juris in alium transfer- No one may convey greater right to ano- 
 
 Nemo 
 
 rc quam ip&o lwb".t, 
 
 Pnlrem habere win inttitiguntnr. 
 
 Per verb a. de presenti, 
 
 Per verba de future, 
 
 Per autre vie, 
 
 Per capita, 
 
 Pe r fa rmain doni, 
 
 per stirpes, 
 
 Prim a facie, 
 
 Pro forma, 
 
 Possessiofratris, 
 
 Pupitiius pati non inteligilur-, 
 
 Pro hnc vici, 
 Pro raka itineris, 
 Pro lanto, 
 
 Qoud damno fatali contingit, cuivis diii- 
 gentissimo possit cantingere. 
 
 Qui nolent inter se contendere, solent per 
 nuntiam rcm emere in comnwne quod a, 
 societate longe remwtum, 
 
 Quia emptores, 
 Quare clausumfregit, 
 
 Reddendum, 
 JRespodentia, 
 Res judicatez, 
 
 Scandalum magnatum, 
 
 tSub potentate viri, 
 
 Salvo, fide et ligentia domini regis, 
 
 Seisina facit stipitem, 
 Stricti juris, 
 Sub modo, 
 
 Subpoena, 
 Supra, protest, 
 
 Tenendum, 
 Unde nih.il h,abet r 
 
 ther than he himseli' has- 
 
 To have a father unknown. 
 By words in the present lense. 
 By words in the future tense- 
 By another life. 
 By heads. 
 
 By the form of the gift. 
 By roots- 
 First lace, first view. 
 According to form, for forms- 
 Possession of ihe brother. 
 The infant is protecied by not understand- 
 ing. 
 
 For that time or occasion. 
 According to the distance passed. 
 For so much- 
 Damage which happens because of fate 
 and which the utmost diligence may 
 not prevent. 
 
 They who are not willing between them- 
 selves to undertake as mutually bound, 
 accordingto theircustom, by agent may 
 purchase a thing in common ; and yet 
 from a partnership be far remote. 
 As to purchasers. 
 Why the close is broken. 
 
 The return or render. 
 Things hound or pledged- 
 Thing adjuclicated- 
 
 Slander of the great. 
 
 Under the control of the man. 
 
 Preserving faith and leigance to the lord 
 
 the king- 
 Seisin makes the stock. 
 Of positive law. 
 Under some circumstances, in a special 
 
 manner. 
 Under penalty. 
 Upon protest, after having been protested. 
 
 To hold. 
 
 By what means, or why she has nothing.
 
 A LIST OF VALUABLE STANDARD 
 LAW BOOKS; 
 
 PUBLISHED AND FOR SALE BY 
 
 COLLINS, KEESE & CO., 
 254 PEARL STREET, NEW YORK. 
 
 AMERICAN EQUITY DIGEST. An Analytical Digest of the 
 
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 from the earliest periods, &c. Forming- a complete abstract of all the American 
 Equity Reports, down to 1836. By O. L. Barbour and E. B. Harrington, Esqrs. 
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 A work highly recommended by Chancellor Walworth, Judge Cowen, Chief Justice Savage, 
 Professor Hoffman, of the Maryland University, Baltimore, &c. Judge Cowen says of it, 
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 ARCHBOLD'S APPENDIX. A Collection of the Forms and Entries 
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 BURROW'S REPORTS. Reports of cases argued and determined in 
 
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 CHIEF JUSTICE MARSHALL'S DECISIONS. Reports of Cases 
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 CHITTY'S BLACKSTONE. Commentaries on the Laws of England, 
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 CHITTY ON BILLS. A Practical Treatise on Bills of Exchange, 
 
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 CHITTY'S PLEADINGS. A Treatise on the Parties to Actions. 
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 CHITTY'S CRIMINAL LAW. A Practical Treatise on the Criminal 
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 CHITTY ON CONTRACTS. A practical Treatise on the Law of 
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 COLLYER ON PARTNERSHIP. A Practical Treatise on the Law 
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 COMYN ON CONTRACTS. The Law of Contracts and Promises 
 
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 CRUISE'S DIGEST. A Digest of the Laws of England respecting 
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 COWPER'S REPORTS. Reports of cases adjudged in the Court of 
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 DUER'S JURISPRUDENCE. Outlines of the Constitutional Juris- 
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 DURNFORD & EAST'S REPORTS. Reports of cases adjudged in 
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 ENGLISH COMMON LAW, FIRST SERIES ; containing Bur- 
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 This series includes all the Standard English Reports, from 175G to 1800, inclusive, 
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 EXCHEQUER REPORTS. Reports of cases argued and determined 
 
 in the Court of Exchequer, at Law and Equity, and in the Exchequer Chamber 
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 FONBLANQUE ON EQUITY. A Treatise on Equity, with notes and 
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 GOULD'S PLEADING. A Treatise on the Principles of Pleading in 
 Civil Actions, by James Gould. Second Edition, revised and corrected by the au- 
 thor. One Volume. 
 
 Extract of a letter from Chief Justice Marshall, dated, 
 
 RICHMOND, Dec. 3rd. 1832. 
 
 " I have read the work through with advantage to myself, and with some surprise at finding 
 that a subject which has employed so many pens, should still admit of being presented in a 
 form that may make the book an acquisition certainly to the Law Student, and indeed to the 
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 with the utmost precision to the administration of justice, according to uniform rules." 
 
 By showing the reason of the rule plainly, the rule itself becomes more intelligible to the 
 student, and will more certainly adhere to his memory. 
 
 Allow me to repeat my thanks for the gratification afforded me by the perusal of your 
 work, and to assure you that I am with very great respect, 
 
 Your obliged and obedient servant, 
 
 J. MARSHALL. 
 
 Extract of a letter from Chief Justice Spencer, dated, 
 
 ALBANY, Dec. 27th, 1832. 
 
 If my opinion is entitled to any consideration, it is, that you have given to the profession 
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 With sentiments of high esteem and respect, 
 
 Your's sincerely, 
 A. SPENCER. 
 
 HALL'S SUPERIOR COURT REPORTS. Reports of Cases argued 
 
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 HOVENDON ON FRAUDS. A General Treatise on the Principles 
 
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 KENT'S COMMENTARIES. Commentaries on American Law, by 
 
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 KINNE'S BLACKSTONE. The most important parts of Blackstone's 
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 R. H. WALWORTH. 
 
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 PETER S. DU PONCEAU. 
 
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 Extract of a Letter from Chancellor Kent to the Author. 
 
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 MERIVALE'S REPORTS. Reports of cases argued and determined 
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 REEVE ON DESCENTS. A Treatise on the Law of Descents in the 
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 STARKIE ON SLANDER. A Treatise on the Law of Slander, Libel, 
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 STARKIE'S REPORTS. Reports of cases determined at Nisi Prius 
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