(JnrnpU IGaui ^Tlynnl Kibtarg Cornell University Library KF 4700.P27 The political personal, and property rl 3 1924 020 027 888 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020027888 THE Political, Personal, and Peoperty RIGHTS OF A CITIZEN OF THE UNITED STATES. HOW TO EXERCISE AND BOW TO PRESERVE THEM. JOGBTHEE WITH I. A TEEATISE ON THE EULES OF ORGANIZATION AND PROOEDD^E IN DELIBEEATIVE ASSEMBLIES; n. A GLOSSARY OP LAW TEEMS IN COMMON USE. BY THEOPHILUS PARSONS. LL.D., EX-PB0F£SS0B op law in HABrABD COLLEGE; iUTHOK 0» "the laws OF BUSINESS," OF A TKEATISB OH "THE LAW OF 00HTBA0T8, AHD OF OTHER LAW-BOOKS. HARTFO-RD: S. S. SCRANTON AND COMPANY. 1875. Entered according to Act of Congress, in the year 1874, bj THEOPHILUS PAKSONS, In the Office of the Librarian of Congress, at Washington. CONTENTS. BOOK FIRST. OF THE POLITICAL RIGHTS OF A CITIZEN OF THE UNITED STATES. CHAPTER I. PAOS What a Constitution is 3 Articles in addition to, and amendment of, the Constitution ■ of the United States of America 34 CHAPTER n. HrsTOET OF THE Constitution of the United States • . 5 Sect. I. Events before the War of Independence .... 5 II. Events from the beginning of the War of Inde- pendence to the formation of the Constitution . 10 III. The formation of the Constitution 16 CHAPTER III. The Constitution of the United States 25 CHAPTER IV. Comments upon the Constitution of the United States . 38 Sect. 'I. What our Constitution is 38 n. The reconciliation of State rights and national sovereignty 44 III. The distribution of power 47 IV. The executive power 48 The Vice-President' 50 V. The legislative power 51 "VI. Of the Senate 53 Power as to their own members . ' , . . . 55 Vli The House of Representatives 55 CONTENTb. Chapter IV. — Continued. Sect. Vin. Privileges of senators and representatives . . 56 Freedom from arrest 56 Not to be questioned elsewhere for speech in eithei*House . 57 IX. Power to regulate commerce 57 Commerce with foreign nations 57 Power to regulate commerce among the States 58 Railroads 59 Can Congress regulate the freights on rail- roads 60 Internal improvements 63 X. Taxes 64 XL On the judiciary 71 XII. Of impeachment — . 76 Who may be impeached 77 For what offences an officer may be impeached 78 XIII. The war power 78 Articles of war 79 MUitary Academy 80 The Naval Academy 80 Wars of this country 81 The second war 81 The third war 82 The fourth war 82 The fifth war 83 XTV. Power to borrow money 83 XV. Power to coin money 85 XVI. Of naturalization 87 Laws of naturalization 88 Practice • • - 90 Forms annexed to this chapter . . . 90-94 XVn. Admission of new States 94 XVIII. A republican form of government guaranteed . 95 XIX. Of amendments to the Constitution .... 96 Amendments, how made 97 XX. Of the census . . . ' gg Tables 101-106 CHAPTER V. The Constitutions op the Several States IO7 New Hampshire iq7 Massachusetts iqo CONTENTS. Chapter V. — Continued. Rhode Island 110 Connecticut Ill New York 112 New Jersey 114 Pennsylvania 115 Delaware 117 Maryland 118 Virginia 120 North Carolina 122 South Carolina 123 Greorgia 124 Vermont 126 Kentucky 128 Tennessee 130 Ohio 131 The North-west Territory 131 Louisiana 134 Indiana 135 Mississippi 136 Illinois 137 Alabama 138 Maine I39 Missouri 141 Arkansas 142 Michigan I43 Florida I44 Texas 146 Iowa 148 California 148 Wisconsin 150^ Minnesota 151 Oregon 152 Kansas I53 West Virginia I54 Nevada I55 Nebraska 156 New Mexico 156 Utah 157 Washington 15g Colorado 159 Dakota I59. Arizona I60 Idaho 160 VI COifTENTS. Chapter V, — Continued. Montana 161 Wyoming 161 Alaska 162 Indian Territory 163 District of Columbia 163 Table 167 BOOK SECOND. THE PERSONAL RIGHTS OF A CITIZEN OF THE UNITED STATES. CHAPTER I. The "Writ op Habeas Corpus 17j Practice lyj Form annexed to this chapter I75 CHAPTER II. The Right to Personal Security . _ 17g Sect. I. Trial by jury 276 II. No person shall be tried twice for the same of- ^, J^'"'^ 17.9 III. Excessive bail -.on IV. Excessive fines joi Cruel an-d unusual punishment 181 v. Bill of attainder 1 00 VI. Ex poet facto \aM jg2 VII. The right to assemble and petition government . 183 VIII. Impairing the obligation of contracts .... 184 CHAPTER III. The Right to Freedom of Speech and of Writing . . 186 Libel Slander ....... Truth as a defence .... , „„ 187 CONTENTS. vii CHAPTER rV. Fkeedom op Eeligious Faith and Pkofessiok .... 187 CHAPTER V. MiLiTABT Rights and Duties 188 CHAPTER VL The Right and Dutt of Soffbaob 189 The right of suflfrage 190 CHAPTER Vn. The Rights and Duties growing out or the Domestic Relations 201 Sect. I. Parent and child 201 Infants or minors 202 Guardian and ward 205 Apprentices 207 Forms annexed to this section . . . 205, 208-210 11. Husband and wife 210 Alabama 212 Arkansas 212 California 212 Connecticut 214 Delaware 215 Florida 215 Georgia 215 Illinois 216 Indiana 217 Iowa 218 Kansas 219 Kentucky 219 Louisiana 220 Maine 221 Maryland 222 Massachusetts 223 Michigan 224 Minnesota 225 Mississippi 225 Missouri 226 Nebraska 226 Nevada 226 viii CONTENTS. Chapter VII. ■ — Continued. New Hampshire 227 New Jersey 227 New York 228 North Carolina 229 Ohio 229 Oregon 230 Pennsylvania 230 Khode Island 231 South Carolina .' . 231 Tennessee 232 Texas 232 Vermont 233 Virginia 233 West Virginia 234 Wisconsin 234 Marriage 235 Divorce 245 Forms annexed to this section 237-245 BOOK THIRD. THE PEOPERTY- RIGHTS OP A CITIZEN OF THE UNITED STATES. CHAPTER L Eminent Domain , 251 CHAPTER II. The Acquisition of Peopeett 252 CHAPTER III. The Distribution of the Property of an Intestate . . 253 The distribution of personal estate 254 CHAPTER IV. Of the Disposal of Property bt Will 255 Sect. I. Of wills ' ' ! " 255 II. Codicils „-„ CONTENTS. ix Chapter IV. — Continued. Sect. IIL Revocation of wills 258 Forms annexed to this section 259-265 IV. Executors and administrators . . 265 Forms annexed to this section 268-273 CHAPTER V. Deeds of Land 273 Sect. I. What is esssential to deeds conveying land . . 273 11. The usual clauses in deeds 278 III. Mortgages of land 284 Forms annexed to this chapter 289-354 CHAPTER VI. PCECHASE AND SaLE OF GoODS AND CHATTELS 355 Sect. I. What constitutes a sale 355 II. Delivery and its incidents 359 III. Contracts void for illegality or fraud 3 {i3 IV. Sales with warranty 335 Forms annexed to this section 367-369 V. The sale of one's business 369 VI. Stoppage in transitu 370 CHAPTER Vn. MOBTGAGES OF GoODS AND CHATTELS 372 The pledge of personal property 373 Forms annexed to this chapter 874r-378 CHAPTER VIII. LETTmu AND Hieing op Real Propektt 379 Leases 379 Fixtures . 382 Forms annexed to this chapter 383-411 CHAPTER IX. Gifts 411 CHAPTER X. Finding 413 CONTENTS. CHAPTER XI. Consideration 414 Sect. I. The need of a consideration 414 II. What is a sufficient consideration 415 m. An niegal consideration 417 IV. An impossible consideration 417 V Failure of consideration 418 CHAPTER XII. Agreements 420 Sect. I. The legal meaning of agreement 420 Mistakes 421 Fraud 421 II. "What is an assent 422 III. Offers made on time 422 IV. A bargain by correspondence 423 V. What evidence may be received in reference to a written contract 424 VI. Custom or usage 426 How contracts or agreements should be made . 428 Forms annexed to this chapter .... 429-443 CHAPTER XIII. Assignments 445 Forms annexed to this chapter 445-448 CHAPTER XIV. Bonds 449 Forms annexed to this chapter 450-456 CHAPTER XV. Guaranty 457 Sect. I. Of the rights and duties of a guarantor 457 Forms annexed to this chapter 460-462 n. The Statute of Frauds 462 A promise to pay the debt of another .... 463 An agreement not to be performed within a year . 464 The form and subject-matter of the agreement . 465 CHAPTER XVI. Payment and Tender 46g Sect. I. How payment may be made 466 II. Appropriation of payment 467 CONTENTS. CHAPTER XVII. Receipts and Releases 468 Forms annexed to this chapter 469-480 CHAPTER XVm. Notes of Hand and Bills op Exchange, Drafts, and Checks 481 Sect. I. The purpose of, and the parties to, such papers . 481 Forms annexed to this section . . . . . . 482 II. What is essential to a negotiable note or bill . . 484 Form annexed to this section 485 III. The consideration of negotiable paper . . . . 491 IV. The rights and duties of the maker 493 V. The rights and duties of the holder of negotia- ble paper 494 VI. The rights and duties of the jndorser .... 504 VII. The rights and duties of the acceptor .... 507 VIII. Acceptance or payment for honor 508 Forms annexed to this section 509-512 CHAPTER XIX. Agency 512 Sect. I. Agency in general 512 II. How authority may be given to an agent • , . 514 III. Extent andjiuration of authority 51.6 IV. The execution of authority 518 V. Liability of an agent 519 VI. Rights of action growing out of agency . . . 519 VII. How a principal is affected by the acts of his agent 520 VIII. Mutual rights and duties of principal and agent . 521 IX. Factors and brokers 523 Forms annexed to this chapter 526-531 CHAPTER XX. Partnership 532 Sect. I. What a partnership is 532 II. How a partnership may be formed 532 in. How a partnership may be dissolved 534 IV. The property of the partnership 536 V. The authority of each partner, and the joint liability of the partnership 537 VT. Remedies of partners "ojainst each other . . . 540 xu CONTENTS. Chapter XX. — Oontinued. Sect. VII. Eights of tlie fli-m against third parties . . • 542 VIII. Eights of creditors in respect to funds .... 542 IX. The effects of dissolution 544 X. Limited partnership 545 Forms annexed to this chapter 546-550 CHAPTER XXI. Arbitkation 551 Sect. I. Of the submission and award 551 II. The revocation of a submission to arbitrators . . . 554 Forms annexed to this chapter 556, 557 CHAPTEH XXII. The Carriage of Goods and Passengers 558 Sect. I. A private carrier 658 n. The common carrier 559 III. Bills of lading 561 IV. The obligation of the common carrier to I'eceive and carry goods or passengers 562 V. The lien of the common carrier 566 VI. The liability of the common carrier 567 Vn. The carrier of passengers 568 VIII. A notice by the carrier respecting his liability . 569 IX. The carrier's liability for goods carried by pas- sengers 570 Forms annexed to this chapter 573-575 CHAPTEE XXin. Fire Insurance 576 Sect. I. The usual subject and form of this insurance . . 576 Usage 577 II. The construction of policies against fire . . . 578 Api.'lications 580 III. The infiirest of the insured '. . . 584 IV. Doubit. -surance 586 V. Warranty and representation 587 VI. The risk incurred by the insurers 589 VII. Valuation 59q VIII. Alienation 5gj IX. Notice and proof 592 X. Adjustment and loss 593 Forms annexed to this chapter . . . . -.594-596 CONTENTS. XUI CHAPTER XXrV. Life Insurance 597 Sect. I. The purpose and method of life insurance . . . 597 n. The premium .598 III. The restrictions and exceptions in life policies • . 599 IV. The interest of the insured 600 V. The assignment of a life policy 601 VI. Warranty, representation, and concealment . . . 602 VII. Insurance against accident, disease, and dishonesty of servants 605 CHAPTER XXV. Banketjptct . 605 Voluntary bankruptcy. — Commencement of proceedings . . 606 Assignments and assignees 608 The distribution of the bankrupt's estate 613 The bankrupt's discharge and its effect .' 615 Preferences and fraudulent conveyances declared Toid . . . 618 Involuntary bankruptcy 619 Of superseding the bankrupt proceedings by arrangement . 621 Composition with creditors 623 CHAPTER XXVI. LlUITATIONS 625 Sect. I. The Statute of Limitations 625 II. Construction of the statute 626 III. The new promise 627 IV. Part-payment 628 V. Some statutory exceptions 628 VI. When the period of limitation begins 629 VII. The statute does not affect collateral security . . 630 CHAPTER XXVn. Inteebst and Usury 630 Sect. I. What interest is, and when it is due 630 H. A charge for risk or for service 634 III. The sale of notes 635 IV. Compound interest 637 Abstracts of the usury laws of the States . . . 637 XIV CONTENTS. CHAPTER XXVni. Thb La-w op Place 640 Sect. I. What is meant by the law of place 640 II. The general principles of the law of place . . . 641 TIL The place of the contract 642 rV. Domicile 643 CHAPTER XXIX. Tbade-mabks 645 CHAPTER XXX. Means pkovidbd poe the Recovery and Collection op Debts 648 CHAPTER XXXI. The Liens op Mechanics and Material-men fob their Wages and Materials 649 Forms annexed to this chapter 651-653 RULES FOR ORGANIZATION AND PROCEDURE IN DELIB- ERATIVE ASSEMBLIES. CHAPTER I. Origin and Purpose op the Rules op Order .... 657 CHAPTER n. Organization . . 658 CHAPTER in. Quorum ggp CHAPTER IV. HoTV Questions are decided 559 Of the officers ggg CONTENTS. rv CHAPTEB V. How Business hat be intbobuced 660 CHAPTER VI. Of Motions 661 CHAPTER Vn. Resolutions and Okders . 661 Seconding 661 Withdrawing a motion 662 CHAPTER VHL The Obdeb of Motions 662 CHAPTER IX. Motion to adjoubn 662 CHAPTER X. To LIE ON THE Table 663 CHAPTER XI. The Pbeyious Question 663 CHAPTER XII. Postponement to a Day Ceetain 664 CHAPTER XIIL To commit 664 CHAPTER XIV. Motion to amend 665 CHAPTER XV. How Committees are appointed 667 How the committee meet and act 668 Minority reports 668 CHAPTER XVL Committee of the Whole 668 xvi CONTENTS. CHAPTER XVn. Pkitilbged Questions 669 CHAPTER xvrn. Obdeks of the Day 670 CHAPTER XIX. How THE Presiding Officer puts Questions 670 How the vote may be ascertained 671 Taking the question by yeas and nays 671 CHAPTER XX. How A Motion is made 672 Rules and usages of debate 672 CHAPTER XXI. Appeals from a Presiding Officer 673 CHAPTER XXII. Reconsideration 673 CHAPTER XXm. Of a Bill 674 CHAPTER XXIV. The Preservation of Order 675 Glossary of Law Terms in Common Use 677 Index < 699 BOOK FIEST. THE POLITICAL RIGHTS OP A CITIZEN OF THE UNITED STATES. NOTE. I HATE believed that a book exhibiting the provisions and the principles of our national constitution, with the history of its forma- tion, and the means by which republican institutions may be made most productive of good, and guarded from the dangers which most nearly threaten them, would be useful ; and I have attempted to do. this in the First Book in this volume. The Second Book contains a view of the personal rights so secured to all pur citizens by our constitutions and laws, that only our neglect or abuse of them can impair or imperil them. The Third Book states in simple and untechnioal language the laws and rules, by an observance of which all the kinds of business in common use may be safely transacted. Then follows a Treatise on the Rules of Order in Deliberative Bodies. A knowledge of these rules is especially necessary in this country, where nearly all its public business, — from Congress down to our town meetings, — and much of its private business, — as in meetings of stockholders and the like, — are governed by these rules ; and all such meetings would avoid disorder, and accomplish their purposes far better, if these rules were generally known and regarded. The volume closes with a Glossary, or Dictionary, of Law Terms in common use. The language of the law, to a large extent, may be easily taught ; and as without it the rules under which we all live and act cannot be well understood, it would seem that it might be usefully learned. All that part of this volume which is taken from my former works has been carefully revised and amended. Thbophtlus Paesoits. Cambkisge, 1874. BOOK FIRST. OP THE POLITICAL EIGHTS OF A CITIZEN OF THE UNITED STATES. CHAPTER L WHAT A CONSTITUTION IS. The political rights of a citizen of the TTnited States are defined, established, and protected by the Constitution of the United States, and the constitutions of the several States. Our first endeavor will be to ascertain what this word* "constitution," when used in a political sense, means. A constitution is that supreme law, which the nation itself makes, as the condition and the limitation of all the powers it will there- after impart to its political servants. It is the guide which it gives to them all. It is the expression of the deliberate determination of the whole people, that the rights which it believes to lie at the foun- dation of all right, shall ever be preserved ; that certain principles, which are to be as the life and essence of all law, shall ever be maintained ; and it divides and defines, and yet connects together, all the organic powers and functions of the State. It governs all legislative bodies in the exercise of their functions, for it is the law of the law of the nation. And when the constitution is thus formed, it is thereafter the supreme law of every citizen of the State, be. he high or low, be it his oflSce to make, to execute, or to judge of law, or only to assist in laying these duties upon othei's. To every man, and to every man alike, it is a supreme law. The imperfect imitations of a constitution on the continent of Europe, and on this continent south of the Union, were never the expression or the creation of the deliberate reason and will of the people ; they never were what constitutions should be, and nearly all of them have been torn into tatters. THE POLITICAL RIGHTS OF We often read of the British Constitution. But Great Britain has no constitution. Let us suppose that, at the next session of the British Parliament, a rigorous censorship of the press is estabhshed, the Queen authorized to lay what taxes she will, on whom she will, and collect them as she will, the Hajbeas Corpus Act repealed, and all the ministers supplied with blank warrants under the privy seal, as it once was in France, which they may fill with any name, and by these means imprison any persons at their pleasure. And let us suppose that these laws pass through Parliament with pre- cisely the same forms as those necessary for a statute to regulate the days of grace on bills of exchange, or to provide any other common mercantile or municipal measure. It is certain that no man in England would have a legal right to resist any one of these laws ; and no court or magistrate in England would have a legal light to obstruct, or defeat, or annul them, or do any other thing than carry them at once into fhll force and effect. Of course, if the popular sentiment were not greatly changed, there would be oppo- sition and effectual resistance somewhere. But it would be the opposition of rebellion or revolution, and not of legal right. But let any such law be passed by Congress and the President of the United States, or by the legislature and governor of any State, and it is only nothing. It is dead at its birth.- The judicial body of the nation or the State is ready to declare it to be nothing. And the reason for all this is, that the law opposes the constitution, and, by the force of that fact, is nothing. If, in England, the word " con- stitution " may mean the whole complex of all their political and legal institutions, here it means something distinct from them all, something sovereign over them all, imparting life to all of them that live, and denying life and power to whatever opposes it. The government of these United States is this day the strongest government in the world, for it is the organ of a nation endowed with self-government, and is invested with the nation's might, to be used for the nation's good, in whatever way may prove to be the best. It is the government of law, and its strength is in the Con- stitution. We are a nation that includes as wide a diversity of opinion, of sentiment, of character, and of interest, as of soil and climate. But over us all the Constitution bends like the universal sky, holding us all within its embrace, but lifled up too high for any one to reach it with a sacrilegious hand. Like the sky, it comes down as the beneficent air, which surrounds us at every step and at every moment, supplying us with the element of political life, and yet so soft, so yielding and invisible, that we do not think of it as we engage in the work or enjoy the happiness of every day. Soft, yielding, and invisible is this sweet air we breathe and live upon ; A CITIZEN OF THE UNITED STATES. and yet. it may, -when there is need, put forth its strength, — and who can stand against the might of the unfettered wind ! The strength of our constitational goTernment must reside in its gentleness, and in the opportunity which is given by its gentleness,, for passion to calm down, and stubbornness to melt away, and the wanderer to return, and that which is right and best to become manifest to all men. It must reside in its patient forbearance while that is possible, and in its cautious mildness as far as that is possir ble ; in its power, derived from this very gentleness, of adaptedness to every exigency; and, therefore, of adequacy to any exigency which may call upon it, either to bring into action its whole irresist- ible might, or to take any other course which a comprehensive and clear-sighted wisdom may approve. Nor is onr constitution a fetter imposed by the past upon the present and the future, fixed and crystallized into forms which may be broken but cannot change. The exact opposite of this is the truth. It is a living organism. It invites and provides for change. It de- sires all changes, in all time, which shall make it ever more able to perform its great functions. But it carefully provides that these changes shall come only as a common demand, shall be matured by a common deliberation, and rest on a common consent ; common, not universal, for that it is too wise to require or to expect. CHAPTER II. HISTORY OF THE CONSTITUTION OF THE UNITED STATES. SECTION L EVENTS BEFORE THE WAR OF INDEPENDENCE. We might trace back to the very beginning of history, the series of events which led to the formation of our constitution. We can only glance at this series now. Let us begin with the inquiry, what the best government must be; and the answer should be, in onq word, self-government. On this topic, as on so many others, we may be helped by remembering that as a nation is composed of men, it cannot contain any other elements of national character than those which are contributed by the men of the nation. And when we look at men individually, and from the study of hnman character THE POLITICAL RIGHTS OF reach certain definite laws and conclusions concerning human life in the individual, we may well hope that these laws and conclusions will throw some light upon similar questions as they exist in refer- ence to a nation. The best definition or description of a republican constitutional government may be found in the often-quoted words of President Lincoln. It is a government " of the people, by the people, for the people." But these words are often used with an ignorance or disregard of their exact and most important meaning ; for they are used as if government " of" the people and government " by " the people meant the same thing. There can be no greater mistake. Government o/the people means that the people shall be governed ; as really and efiectually governed as under any form of government. But never oppressively or tyrannically, because they are governed by themselves. They govefn themselves, for and in their own best interests. And if they are not governed, if they do not govern themselves, those interests are disregarded and defeated. For what is the best government for an individual ? If I put the question in another shape, — if I ask whether he is best governed who is surren- dered to his own fantasies and proclivities and lusts, and exasper- ates all these by utter unrestraint, and makes no reference to right or wrong, or the law of God or the law of man, the question answers itself. I am describing a man who has done all that he can do to become only a wild beast. Better were it for him that some arm of power should hold him, some fear restrain him, some irresistible command control him, and all these influences compel him to decent conduct. Then, it might at least be possible that his lusts and follies, because they were repressed, would be enfeebled. If so, it might again be possible that the severity of external control could be safely relaxed ; that some acknowledgment of law, some thought of right, would begin to exert a power within him, and thereby facilitate the entrance of yet better thoughts and higher motives, and that this advancing and ascending progress might go on, until a control from within accepted and welcomed a control from without as a necessary help. And the consummation of all this would come when the law of truth, of right, and of instructed conscience was all the law he needed, all the law he felt ; and this law put him at ease with the system of law prevailing all around him, and the man stood and lived in perfect peace with the law and perfect peace with himself. This is but an ideail picture ; far from the reality existing in the best of us. It is, however, a picture of that last result towards which we are led by all moral improvement, all elevation of motive, all recognition of the authority of right, and all confirmation of our love of goodness. A CITIZEN OF THE UNITED STATES. I cannot but think that the history of the past and the condition of the present lead to the conclusion that a law and method of progi"ess, somewhat analogous at least, prevail in the growth of nations. History is but the biography of man; and the lessons which are taught by the life of mankind cannot be altogether remote and diverse from those we may gather from the lives of men. To see how the progress of mankind has accorded with these principles, we must go far back towards the beginning ; and it is of course impossible to give rdore than the most cursory glance at the evidence which the pages of history offer. But even this glance will show us that while government was known only as unmitigated despotism in the Eastern and ancient world, it received important modifications as it passed through Greece ; and that the despotism of the central power of the vast empire of Rome was accompanied with a singular amount of freedom and self-govei-nment in the cities and boroughs and lesser provinces into which the Roman empire was divided. In this way some preparation was made for the feudal system, which was, in theory, a government of laws and not of men, for it assigned his own place and his own rights to every man. And so the possibility of deliverance from a wholly external control, from a power which was over him and against him, instead of one which was accepted by him as his own and as self-imposed, grew from age to age. A few centuries ago, four great discoveries, or rather the bring- ing within reach and use of four things known but neglected before, came near together and distinguished that period from any other in history. One of these was the mariner's compass ; and it guided Columbus to America. The discovery of this continent was another. Gunpowder, the third, made the subjection of this continent easy and rapid. And the press, which was the fourth discovery, diffused among expecting nations the tidings of this new world, and spread widely a knowledge of the advantages which it offered ; and this soon brought to our shores the beginning of a new population. This grew up under the fostering and needed care of the parent races, until the colony was strong enough to become a State. Something like this had often happened before. History is fall . of stories of successful colonization, and of young nations which cast off dependence when they were strong enough to break their fetters. But something else happened now that never occurred before. In all previous instances where colonies gi'ew into States, they became substantially what their parents were. When the new shoot was rooted, it was the old tree again, with more or less nnimpoitant change from soil or climate or position. Not so here. Our colonial fathers were at first subjects of a king, as all the in- 8 THE POLITICAL RIGHTS OF habitants of earth, with few and slight exceptions, under some form or name, were and always had been. But when our fathers ceased to be subjects of their king, they founded States without a king; and in this simple fact they indicated, and the wiser among them saw, the dawn of a new day in the life of mankind. This new world, thus and then discovered, was near enough to the old world to receive colonists with no more hinderance and difficulty than were useful to sift out the weak from the strong, that the seed of a new nation might have due vitality. Far enough from the old world to prevent an immediate and controlling influ- ence from stretching across the waters and causing the future to be but a repetition of the past; far enough to permit the germs of nations planted here to grow up into the great possibility which awaited them. And then the hour came, and the last word of God's providence in human government was uttered when he said to a great. nation, " Go forth, be free, and GovEKif toubsblves." The great question for this country is, shall we be deaf to this word ? In the infinite ftiture there may be and will be vast changes and infinite improvements. These will lessen, or remedy, or prevent many evils which we already discern, and many more which we do not yet discern, in our republican institutions; and whatever good has yet come, or may now be hoped for from these institutions, will be increased a thousand fold, as they are changed for the better. But the nations will never again regard as the only possible or desirable government, that of a power distinct from the people, and deriving no force and no life from their consent and voluntary recognition. The work we have begun will not be suppressed and extinguished. It will live, and it will grow into -the fulness of its stature ; and that it may live and grow, the wants, the deficiencies, and the errors of any age will be disclosed by whatever lessons may be necessary to teach them, and will be remedied by whatever means are then found best for that purpose. For the period in the progress of mankind has been reached when a government was to be formed, which should possess, and in time of need be able to exert, the force of the nation for national purposes, and the combined power of its component parts for all those purposes which embrace the interests of all, and yet leave each of those parts. States, cities, families, and individuals, in the utmost possible freedom to enjoy the blessing and discharge the duty of self-government. When before, where else, has this ever been the design of government? The colonies, from their beginning, exercised a large amount some more and some less — of self-government. They knew that this must be so, and in some cases provided for it. A noticeable instance of this occurred among the founders of the colony of Ply- A CITIZEN OF THE UNITED STATES. mouth in New England. The "Mayflower" dropped her anchor in the roadstead of what is now Provincetown, on Cape Cod, Nov. 11, 1620. A journal of their proceedings says : — " This day, before we came to harbor, observing some not well aflTected to unity and concord, but gave some appearance of faction, it was thought good there should be an association and agreement, that we should combine together in one body, and to submit to Huch government and governors as we should by common consent agree to make and choose, and set our hands to this that follows, word for word." The following instrument was prepared and signed : — <■ In the name of God, amen. We, whose names are underwritten, the loyal subjects of our dread sovereign lord, King James, by the grace of God, of Great Britain, Prance, and Ireland King, Defender of the Faith, &c., having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our king ard country, a voyage to plant the first colony in the northern parts •:£ Virginia, do by these presents, solemnly and mutually, in the pnts- ence of God and one of another, covenant and combine oursehijs together into a civil body politic, for our better ordering and prts- orvation, and furtherance of the ends aforesaid ; and by virtue liereof to enact, constitute, and frame such just and equal lav s, ordinances, acts, constitutions, and ofiices, from time to time, as shall be thought most meet and convenient for the general good of the colony ; unto which we promise all due submission and obei'li- ence. In witness whereof we have hereunder subscribed our nam «s, at Cape Cod, the 11th of November, in the year of the reign of our sovereign lord, King James, of England, France, and Ireland the eighteenth, and of Scotland the fifty-fourth. Anno Domini 1620." This may be called the first written constitution ; forced, as it were, upon our fathers, by the compulsion of circumstances. It contains the essential principles of all republican constitutions. In all the colonies, through all their history, there was some conflict, and in some of the colonies an almost constant conflict, between their efibrts at self-government and the royal authority, which, in the hands of its agents and officials, sought to control them. They became little republics ; or it is more accurate to say that, by the experiences and the discipline they passed through for more than a century, they were trained to become republics. 10 TBE POLITICAL RIGHTS OF SECTION IL EVENTS FROM THE BEGINNING OF THE WAR OF INDEPEN- DENCE TO THE FORMATION OF THE CONSTITUTION. The colonies of Nortli America were formed in rapid succession, and were scattered all along our seaboard. They were formed, to some extent, by diflferent kinds of people, who came not all fi-om one country nor moved by the same impulse, and they brought with them different characteristics. They were planted at distances which permitted them, independently, or, at least, without much assimilating influence of one upon another, to grow up each in its own way, each under its own circumstances, and each to develop its own peculiarities. And yet they were near enough, and similar enough, to seek and to have much intercourse, and to render to each other much assistance. As time passed on, they found it de- sirable, in some instances to unite and coalesce under a common government ; and in others, to fonn alliances for mutual assistance and protection. And in this way some unity of feeling and of interest, and some tendency to community of action, grew up. And these experiences undoubtedly facilitated, and perhaps I might say made possible, their united action in their efforts to obtain in- dependence. As the feelings that independence must be won, and would be worth all that it might cost, grew stronger and more general, it became evident to the far-sighted and the patriotic that there must be some concert of action. In June, 1765, James Otis, of Boston, advised the calling of an American congress. But this measure met with much opposition, and for a time it seemed as if there could be no union. Then South Carolina responded to Massachu- setts, and declared for union ! In New York, those who held similar views established a newspaper, called the " Constitutional Conrant," which had much influence. It bore for its motto the words, first used by Franklin nearly ten years before, " Join or Die." Never was the guiding truth of a great emergency expressed more emphatically or in fewer words. Join or die. This was indeed the great truth of that day, of every day since then, and of the very hour in which we live. Other States acceded, and on the 7th of October, 1765, the first congress, consisting of delegates re<*ularly appointed from six States, with others, representino- three more assembled at New York. The doings of this congress strengthened and diffused the desire for united action. As the necessity became greater and more apparent, at length what is called the Continental A CITIZEN OF THE UNITED STATES. U Congress assembled in Philadelphia on the 5th of September, 1774, and then on the 10th of May, 1775. Still, so great was the jealousy of a central power, that nothing but the peril of impending war, and its pressure when it came, held even this congress of delegates together. But they did hold together; and it was this congress ■which, oh the 15th of June, 1775, appointed Washington com- mander-in-chief of the continental army ; and on the 4th day of July, 1776, declared our independence. In that declaration these two elements of the unity of the whole and the sovereignty of the parts were mingled. It begins, " Wlien it becomes necessary for one people to dissolve the political bonds which have connected them with another," and at its close declares that the former colonies are " free and independent States." There they stood, free from all external dominion, and as independent of each other as of England. But in 1777, Washington, when, at Morristown in New Jersey, he found himself in the midst, if not of treason, of an indifference which was hardening into treason, by proclamation required all who had received protections from the British commander to surrender them and take an oath of allegiance to the United States ! United ; when and how were they united? In Congress he was censured for this. In the legislature of New Jersey it was declared that the required oath encroached upon the prerogatives of the State, and that it was absurd to swear allegiance to the United States before even a confederacy was formed. But even then Washington was justified by the language of the Declaration of Independence : even then were these States united in the contemplation of the good and the wise, and most of all in the heart of him who was best among the good and wisest among the wise. The doings of the Continental Congress before the Declaration of Independence, and in making that declaration, were revolutionary. They acted from necessity ; and the general sense of this necessity prevented criticism of their measures or a refusal to obey them. But the Congress itself felt the need of a more orderly organization, which should approach a nationality, so far, at least, as to unite the States into a strong and efficient confederacy. On the same day in which a committee was appointed to prepare a declaration of independence, 11th of June, 1776, it was resolved to appoint another committee " to prepare and digest the form of a confederation to be entered into between these colonies." This committee reported a draft of articles of confederation, which was debated for about a month, and then a new draft was reported by the Congress in committee of the whole. The matter then slept until April, 1777, when it was taken up and debated on sundry days 12 THE POLITICAL EIGHTS OF for about seven months, and on the 15th of November was adopted. These particulars are stated, that it may be seen how slowly and with what difficulty the idea of nationality made its way among the people. At that time it had indeed scarcely an existence. The different colonies had always been jealous of each other. Their interests were distinct, and in some respects opposed. Only because no one colony, and no part of the colonies, could achieve their independence, and all desired their independence, could they be induced to combine together sufficiently to act with any concert in the war of- the Revolution. The wisest and strongest men in the country — Washington and Franklin maybe mentioned — looked further. We cannot say that either of these men or any of their great compatriots anticipated the wonderful future which awaited their country, and which would have been impossible if that country had not become a nation. It is, however, certain that they did earnestly desire an actual and effectual confederation, which should confer upon the general government adequate powers. The nearest approach they could make to this, and that with great diffi- culty, was in forming the Articles of Confederation. It was no easy matter to caiTy these articles through the Congress, obvious as must have been the need of them to every member of that body. And after they had been adopted by Congress, there was great diffi- culty in obtaining the ratification of them by the colonies, which by the declaration of independence had become States. At length, however, in the last half of 1778, about one year from the adoption of this instrument by the Congress, it was ratified by all the States but two ; and these, Delaware in 1779, and Maryland in 1781, finally ratified it. It was then publicly declared by Congress, with rejoic- ings which proved, on the one hand, with how much difficulty it had been obtained, and on the other, how much was hoped from it, and how great a good it was thought to be. The main cause of this difficnlty was in the absence of all wil- lingness among the people of the different States to give up so much of the independence and sovereignty of each State as was necessary, that all together might constitute a nation. There were, however, other causes. One of these was a gi-eat difference of opinion as to the basis of voting in the Congress. Some wished this to be by States, the smaller having equal power with the larger. Others Would have political power proportioned to wealth ; and still others to population. There was also much conflict, both of opinion and of interest, as to the ownership of the vacant lands in the vast and then unexplored western tenitory. The charters of the colonies were exceedingly indefinite as to their western boundaries, some of them running to " The South Sea," as the Pacific Ocean was then A CITIZEN OF TEE UNITED STATES. 13 called. The larger States claimed that all the land within their chartered boundaries should belong to them. The smaller States insisted that the western regions, so far as they were unoccupied, should belong as a common property to the whole country. After much exciting controversy, which more than once threatened the existence of the confederacy, this question was settled by a con- liession to the confederacy, by the larger States, of a great part of the unsettled territory claimed by them. These obstacles not only obstructed and delayed the formation of ii confederacy, until they were overcome by the absolute necessity 01 union and co-operation in resisting the efforts of Great Britain to preserve her sovereignty, but they made the Articles of Confedera- tion a most imperfect instrument. While the war lasted, it sufficed tolerably well for its purpose; and one reason for this was that Congress took whatever measUres seemed necessary, without any careful observance of the limits imposed by the articles ; and the people seeing the necessity made no opposition. But when peace came, it may be said that the Articles of Confederation broke down. The reason was, that the general jealousy of a central government had withheld from it powers absolutely necessary to its existence. It had, indeed, no power of self-protection, no power of compulsion, no power of carrying into effect its own resolves. They could raise no money, and no army. They could appoint ambassa- dors, but could pay them nothing. They could conclude treaties, but only advise the execution of them. It was but the semblance of a government, with little of its substance. For all this, the Articles of Confederation must be regarded as the nearest approach to a national government that the temper of the people at that time made possible. They were a step in that direction, and an important step ; but it was only one step towards that result. The Articles of Confederation did not even purport to make of us a nation. If they are studied, they will prove the earnest desire of some at least of those who drew them, that we might become a nation. But they stopped so far short of this as to foiTU of the States only a confederacy. These articles were skilfully drawn, and gave to the central government all the power which the States could then be induced to part with. Some semblance — something indeed of the substance of national power — was given; although there was no regular legislative, executive, or judicial department. Probably all the power was given to Congress that it was thought necessary that it should possess to do the work that lay before it. This work it did, well and thoroughly ; for while the thirteen States were held together by the presence of a common enemy, a common 14 THE POLITICAL RIGHTS OF •war, and a common necessity, the Articles of Confederation sufficed to make that war triumphant ; but they sufficed for this, because the sagacity and singleness of purpose of the men who wielded the powers of government, the patriotism of the people, and the wisdom and constancy of Washington, supplied — so iar at least as was needed for success — all deficiencies. Then came peace, and it was soon apparent that the want of unity in the nation, and of power in the government and its organs, - not only prevented the deep wounds of the war from healing, but seemed even to aggravate all the mischiefs which followed, and made the first years of peace no years of returning prosperity. The central government, no longer sustained and invigorated by the war, found itself utterly unable to prevent or to avenge- insults and out- rages to our flag ; it could not even repel the incursion of the sav- ages on our borders ; it could not pay the interest of our national debt; it had no credit, no force, no vital energy, and it may well be said to have died of inherent weakness ; for in 1787 it abrogated its own functions, declared its inability to act as the government of a nation, and it appealed to the ultimate source of all political power, — the people of the whole country. And then came the convention of 1787. "When it met, there was in that assembly as much of sagacity, of varied intellectual accomplishment and resource, and of earnest devotion to duty, as ever co-operated in a great woi-k. And with all these mingled as little of folly and weakness, as little personal ambition, as little self-seeking of any kind, and as little of the disturbing force which these ignoble quali- ties would exert, as was possible under the conditions of humanity. If, in saying that the old Articles of Confederation carried this country successfully through the war of independence, I give them high praise, I believe that I give them still higher when I say that they made the national Constitution possible. These articles famil- iarized the minds of the whole country with the idea of united ac- tion and a central government. They proved indisputably the immense advantages which might be obtained thereby ; and they proved as certainly that to secure all these advantages it was abso- lutely necessary that the nation should have a greater unity than they gave to it, and the central government more power. Aided and illustrated by the course of events, they produced a general impression, especially among leading minds, everywhere, that there might be a stricter national unity, and a stronger central govern- ment, without absorbing or imperilling those State rights which were deservedly dear to the people of every State. Thus it was that this jealous love for the sovereign rights of the several States yielded slowly, reluctantly, and only step by step, to the inevitable A CITIZEN OF THE UNITED STATES. 15 « necessity for closer union. This jealousy was, at the beginning, paramount and extreme. It was not suppressed and overcome, but moderated until it stood in just equilibrium with the prevail- ing sense of the need and the good of a national existence and a national government. Then these two sentiments, or principles, met and co-operated ; and the result was, the Constitution of the United States, formed in the manner to be stated in the next sec- tion. And this, I again declare, I regard not merely as the best which could then have been made, but as in itself good, and very good, and the best for the good of the whole nation which could have been made, by any men, under any circumstances. I do not consider that this constitution came into being in itself perfect, and in itself able to go forward for ever, the instrument of a great nation's growth, prosperity, and happiness, with no more help, with no new influences to bear upon it and give to it added life and energy and efficiency. I mean no such thing. It needed more, a vast deal more, before it could become — what I think it is to be — a permanent instrument of the greatest, the highest, and the completest political good. The problem to be solved in the establishment of this govern- ment, or, as it may be better said, in the formation of this nation, was to create the best possible form of a republican government by the perfect reconciliation of the two elements of central power and reserved rights. In other words of the same meaning, the problem was to create a system of government which should arm the central power with all the force which it could usefully exert, and yet leave to all whom it gathered within its wide embrace, the utmost possible freedom for self-government, and the strongest assurance that this freedom should be guarded but not weakened, protected and not impaired. This was done by the Constitution, as far as written words could do it. For after all our experience, at this day no words could mend that constitution in this respect ; none could make this balance of forces more perfect. But another thing could be done, and remained to be done. It was to fix the meaning of this constitution by prac- tical construction. To fasten on the public mind the conviction, and fill with it the public Heart, that our constitution meant, on the one hand, a preservation of State rights, and on the other, indissoluble ' national unity ; and to root this conviction into the public life firmly, so that no storm could shake it, and so that no devastating force could rend it assvay. It may not be possible to prevent these two elements from sometimes, during the ages that wUl come, rising separately into undue prominence. At one time, or by one body or class, the national unity may be urged until it threatens consolidation, and 16 THE POLITICAL RIGHTS OF , at another time the principle of State rights may again assert itself too strongly. But it may be hoped that their reconciliation is here-^ after to be so established, not by the -written constitution only, but by the constitution of the public sentiment and the public will, that it will stand, even as our continent stands upon its rocky base, -no more to be moved from its foundation than our continent is moved by the two great oceans which beat upon its shores. SECTION in. THE FORMATION OF THE CONSTITUTION. As the insufficiency of the Articles of Confederation became ap- parent, and the need of concerted action was felt, efforts were made in that direction. Thus, in 1785, Virginia and Maryland appointed commissioners to form some agreement concerning the navigation of the rivers Potomac and Pocomoke, and the Chesapeake Bay. These commissioners met at Alexandria, and found they could do lit- tle good unless some provision could be made for a general tariff of duties upon imports, and they reported the need of this to the legis- lature of Vu'ginia. "Whereupon that State, on the 21st of January, 1786, appointed commissioners, " who were to meet such as might be appointed by the other States in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the said States ; to consider how far a uniform system in their commercial relations may be necessary to their common interest and their per- manent harmony ; and to report to the several States such an act relative to this great object as, when unanimously ratified by them, will enable the United States in Congress assembled effectually to provide for the same." The appointment of commissioners for this purpose was notified to the other States; but only four others. New York, New Jer- sey, Delawai'e, and Pennsylvania, responded by the appointment of commissioners. In September, 1786, commissioners from these five States met at Annapolis. All that they did, however, was to lay before Congress and the several States a report, in which they recommend that all the States should appoint commissioners, to meet in convention at Philadelphia, on the second Monday of May, 1787, "to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union ; and to report such an act for that purpose to the United States in Congress assembled, as when agreed to by A CITIZEN OF THE UNITED STATES. 17 them, and afterwards confirmed by the legislature of every State, will effectually provide for the same." The reasons assigned for bringing; the subject before a conven- tion especially chosen for that purpose, rather than leaving it to Congress, were, "that in the latter body it might be too much interrupted by the ordinary business before them, and would, be- sides, be deprived of the valuable counsels of sundry individuals who were disqualified by the constitution or laws of particular States, or restrained by peculiar circumstances from a sieat in that assembly." Little do the people of this country know, difficult will it be for them to believe, the condition of public affairs and public opinion at that time. But all of us ought to know it, for it may help us to value more that constitution, which, under Divine Providence, was the instrument by which safety from these perils was at last attained. That we may better understand what these perils were, let me give extracts from some of the letters written at that time by some of our ablest and wisest men. John Jay writes to Washington, on the 16th March, 1786 : " Experience has pointed out errors in our national government which call for correction, and which threaten to blast the fruit we expected from our tree of liberty. The con- vention proposed by Virginia may do some good, and would perhaps do more, if it comprehended more objects. An opinion begins to prevail that a general convention for revising the Articles of Con- federation would be expedient. Whether the people are yet ripe for such a measure, or whether the system proposed to be attained by it is only to be expected from calamity and commotion, is difli- cult to ascertain. I think we are in a delicate situation, and a vari- ety of considerations and circumstances give me uneasiness. It is in contemplation to take measures for forming a general convention. The plan is not matm-ed. If it should be well considered, and take effect, I am fervent in my wishes that it may comport with the line of life you have marked out for yourself, — to favor your country with your councils on such an important and single occasion. I suggest this merely as a hint for consideration." On the 27th of June he writes : " Our affairs seem to lead to some crisis, some revolution, — ^ something that I cannot foresee or conjecture. I am uneasy and apprehensive, more so than during the war. Then, we had a fixed object, and though the means and time of obtaining it were often problematical, yet I did firmly believe that we should ultimately succeed, because I did firmly believe that justice was with us. The case is now altered, — we are going and doing wrong, and therefore I look forward to evils and calamities, but without being able to guess at the instrument, nature, or meas- 2 18 THE POLITICAL EIGHTS OF lire of them. That we shall again recover, and things again go well, I have no doubt. Such a variety of circumstances would not, almost miraculously, have combined to liberate and make us a natiouj for transient and unimportant purposes. I therefore believe we are yet to become a great and respectable people, — but when, or how, only the spirit of prophecy can discern. " What I most fear is, that the better kind of people (by which I mean the people who are orderly and industrious, who are content with their situations, and not uneasy in their circumstances) will be led by the insecurity of property, the loss of confidence in tlieir rulers, and the want of public faith and rectitude, to consider the charms of liberty as imaginary and delusive. A state of uncertainty and fluctuation must disgust and alarm such men, and prepare their minds for almost any change that may promise them quiet and security." To this letter Washington replies as follows : " Your sentiments, that our affairs are drawing rapidly to a crisis, accord with my own. What the event will be is also beyond the reach of my foresight. We have errors to correct; we have probably had too good an opinion of human nature in forming our confederation. Experience has taught us that men will not adopt and carry into execution measures the best calculated for their own good, without the inter- vention of coercive power. I do not conceive we can exist long as a nation, without lodging somewhere a power which will pervade the whole Union in as energetic a manner as the authority of the State govei-nments extends over the several States. To be fearful of investing Congress, constituted as that body is, with ample authorities for national purposes, appears to me the very climax of popular absurdity and madness. Could Congress exert them for the detriment of the people, without injuring themselves in an equal or greater proportion? Are not their interests inseparably connected with those of their constituents ? By the rotation of appointment, must they not mingle frequently with the mass of citizens-? Is it not rather to be apprehended, if they were possessed of the powers before described, that the individual members would be induced to use them, on many occasions, very timidly and ineffi- caeiously, for fear of losing their popularity and future election ? we must take human nature as we find it : perfection falls not to the share of mortals. Many are of opinion that Congress have too frequently made use of the suppliant humble tone of requisition in applications to the States, when they had a right to assert their imperial dignity, and command obedience. Be that as it may, rcquisiitions are a perfect nullity, where thirteen sovereign, indepen- dent, disunited States are in the habit of discussing, and lefusing A CITlZEk OF THE UNITED STATES. 19 or complying with them at then" option. Requisitions are actually- little better than a jest and a byword throughout the land. If you tell the legislatures they have violated the treaty of peace, and invaded the prerogatives of the confederacy, they will laugh in your face. What then is to be done? Things cannot go on in the same train for ever. It is much to be feared, as you observe, that the better kind of people, being disgusted with these circum- stances, will have their minds prepared for any revolution whatever. We are apt to run from one extreme into another. To anticipate and prevent disastrous contingencies would be the part of wisdom and patriotism. "What astonishing changes a few years are capable of pro- ducing! I am told that even respectable characters speak of a ■monarchical form of government without horror. From thinking proceeds speaking, thence to acting is often but a single step. But how irrevocable and tremendous ! What a triumph for our erfemies to verify their predictions ! What a triumph for the advocates of despotism to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal and^Uacious ! Would to God that wise measures may be taken in time to' avert the consequences we have but too much reason to apprehend." Congress did nothing about the matter. The best men there were deeply impressed with the necessity of taking some measures which might prevent the threatened disintegration of the country ; but they were aware of the unpopularity of Congress, and appre- hended that their manifesting any desire for the convention would tend rather to defeat than promote it. It must be difficult for us, enjoying as we do all the benefits of union, to understand the very general opposition to it. I will presently endeavor to exhibit the state of the country, by extracts from the letters most likely to understand it thoroughly. Some of these letters refer to the dis- contents which prevailed throughout New England, and broke out into insurrection in Massachusetts, and with less violence "in New Hampshire. The enormous exertions of those States during the war had accumulated a great debt. Their fisheries, which were then their principal reliance, had been neglected and had become unproductive. The taxes were very burdensome. General Lincoln was sent with a body of troops- into the west of Massachusetts, ia the depths of winter, and pressed upon the rebels, until, after a few had been killed and more made prisoners, the rebellion there was subdued. In other places where courts were to be held, mobs suc- ceeded in preventing the judges from holding court, that judgments and executions might not issue against debtors. In Taunton, General 20 THE POLITICAL RIGHTS OF Cobb, -who had been in Washington's military family during the war, was major-general of militia, and at the same time a judge of the Court of Common Pleas. On the day when the court was to sit, he came upon the open green in front of the court-house, at the head of three hundred men in military array, and confronted a far move numerous mob. They sent to him, demanding that he should desist from opening the court. His only answer was : " I shall this day sit in that court as a judge, or die on this horse as a general." The mob knew their man, and dispersed. But extracts from letters written at that time, by men who were most likely to understand the condition and temper of the public mind, will present that more accurately than any words of mine. On the 20th of January, 1787, Colonel Humphries writes thus to Washington, accounting for the omission by those in favor of a federal union to press the appointment of deputies from Connecti- cut : " The reason was, a conviction that the persons who could be elected were some of the most anti-federal men in the State, who believed, or acted as if they believed, that the powers of Congi-ess were already too unlimited, and who would wish, apparently, to see the Union dissolved. These demagogues," continued the letter, "really affect to persuade the people (to use their own phraseology) that they are only in danger of having their liberties stolen away by an artful, designing aristocracy. But should the convention be formed under the most favorable auspices, and should the members be unanimous in recommending, in the most forcible, the most glow- ing and the most pathetic terms which language can afford, that it is indispensable to the salvation of the country Congress should be clothed with more ample powers, the States would not all comply with the recommendation. They have a mortal reluctance to di- vest themselves of the smallest attribute of independent separate ■sovereignties." In a letter to Colonel Humphries, Washington says : " For God's sake, tell me what is the cause of all these commotions. Do they proceed from licentiousness, British influence disseminated by the Tories, or real grievances which admit of redress ? If the letter, why was redress delayed until the public mind had become so much agitated? If the foi-mer, why are not the powers of government tried at once ? It is as well to be without, as not to exercise them. Commotions of this sort, like snow-balls, gather strength as they roll, if there is no opposition in the way to divide and crumble them." And in a letter to General Znox he says : " I feel infinitely more than I can express to you, for the disorders which have arisen in these States. Good God ! Who besides a Tory could have foreseen, A CITIZEN OF TIIE UNITED STATES. 21 or a Briton have predicted them ? I do assure you that even at this moment, when I reflect upon the present aspect of our affairs, it seems to me like the visions of a dream. My mind can scarcely realize it as a thing in actual existence, — so strange, so wonderful does it appear to me. In this, as in most other matters, we are too slow. When this spirit first dawned, it might probably have been easily checked ; but it is scarcely within the reach of human ken, at this moment, to say when, where, or how it will terminate. There are combustibles in every State, to which a spark might set fire. - In bewailing, which I have often done with the keenest sor- row, the death of our much lamented friend. General Greene, I have accompanied my regrets of late with a query, whether he would not have preferred such an exit to the scenes which it is more than probable many of his compatriots may live to bemoan." At length the legislature of New York, by an order which passed the senate by a majority of but one vote, instructed the delegates from that State to move in Congress a resolution recommending to the several States to send deputies to meet in a convention for the purpose of revising and proposing amendments to the federal con- stitution. On the 21st of February, 1787, the Congress resolved that it was expedient " that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal constitution adequate to the exigencies of government and the preservation of the Union." Twelve States sent delegates- to Philadelphia at the time ap- pointed, Rhode Island alone reftising to appoint any. The conven- tion met, unanimously chose Washington as their president, and proceeded, with closed doors, to discuss the subjects before them. The deliberations of the convention were protracted. All the difficulties in the way of union, all the objections on the part of the States to give up any part of their independent sovereignty, came up, and were discussed over and over, sometimes with considerable asperity of feeling and of language, but on the whole ternperately and wisely. Mutual concessions were made. The absolute neces- sity of union became more and more apparent, as the diversities of opinion and feeling and interest were manifested. Compromises were assented to ; and at length, on the 17th of September, about four months after the convention met, a constitution was agreed to, which was substantially the same as it now is. 22 THE POLITICAL RIGHTS OF By a resolution passed on the same day, the convention directed that the constitution should be laid before Congress, and recom- mended that it should be submitted in each State to a convention of delegates, for their assent and ratification ; and that as soon as nine States should ratify it, it should go into operation. This constitution was transmitted to Congress, accompanied hy the following letter from the president of the convention. , An admirable letter it is, stating very briefly, and yet clearly, the prin- ciples which governed the convention in framing the instrument, and should forever govern the people in their view of it : — " We hare now the honor to submit to the consideration of the United States, in Congress assemHed, that constitution which has appeared to us the most advisable. " The friends of our country have long seen and desired that the power of making war, peace, and treaties ; that of levying money and regulating commerce, and the correspondent executive and judicial authorities, — shall be fully and effectually vested in the general government of the Union. But the impropriety of dele- gating such extensive trust to one body of men is evident. Thence results the necessity of a different organization. It is obviously impracticable, in the federal government of these States, to secure all the rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest. The magni- tude of the sacrifice must depend as well on situation and circum- stances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved. And on the present occasion this difficulty was increased by a difference among the several States, as to their situation^ extent, habits, and particular interests. " In all our deliberations on this subject we have kept steadily in our view that which appeared to us the greatest interest of every true American, — the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each in the convention to be less rigid in points of infe- rior magnitude than might have been otherwise expected. And thus the constitution which we now present is the result of a spirit of amit_y, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable. "That it will meet the full and -entire approbation of every State, is not, perhaps, to be expected. But each . will doubtless consider that, had her interest alone been consulted, the conse- A CITIZEN OF THE UNITED STATES. 23 quences might have been particularly disagreeable and injurious to others. That it is liable to as few exceptions as could reasonably have been expected, we hope and believe ; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish." The constitution came before State conventions in 1787 and 1788. The conventions of Georgia, New Jersey, and Delaware adopted it at once, unanimously. Those of Connecticut, Maryland, Pennsyl- vania, and South Carolina adopted it by large majorities. Here were seven States, a bare majority of the thirteen, and two less than the number requisite to put the constitution into operation ; and it was thought very doubtful whether other States would ratify it. Bhode Island would not call a convention. That of Massachu- setts met in January, 1788, and it was understood that a majority of the members were disposed to reject it. The most strenuous efforts were made by those who were in its favor, and were at last so far successful, that on the 6th of February a vote in its favor was carried by a small majority; and at the same time some im- portant amendments were recommended. A convention met in New Hampshire soon after, and here, too, it was understood that a majority was opposed to the constitution ; but here also it was over- come, and the constitution adopted by a very small majority, and with a recommendation of amendments. The convention of Virginia met on the second of June. Here, also, the ablest and most influential men of the State were divided in opinion, the celebrated Patrick Henry leading the opposition. But on the 26th of June the constitution was adopted. The convention of New York met on the 17th of June. A de- cided majority of the convention were opposed to the constitution. Ten States, however, had adopted it, and it would certainly go into operation. This fact had greal weight, and on the 26th of July the constitution was adopted, but with the recommendation of numerous amendments. The convention of North Carolina was in session at the same time as that of New York, and at first refused their assent until a declaration of rights, with other amendments, were first laid before Congress or a convention of the States. But on the 21st of November, 1789, that State ratified the constitution. And on the 29th of May, 1790, the State of Rhode Island ratified the constitution; and it then embraced all the original thirteen States. On the 13th of September, 1788, Congress resolved "that the first "Wednesday in January following be the day for appointing electors in the several States which before the said day shall have ratified the said constitution; that the first "Wednesday in February 24 THE POLITICAL RIGHTS OF be the day for the electors to assemble in their respective States, and vote for a president ; and that the fii-st Wednesday in March next be the time, and the present seat of Congress (New York) the place, for commencing the proceedings under the said consti- tution." The electors did so meet and vote ; and the States which had ratified the constitution chose their senators and representatives. They were eleven in number, Rhode Island and North Carolina not having ratified the constitution until a later period, as above stated. Then the first Congress met, and the Constitution of the United States went into operation, on the 4th day of March, 1789. Here we close our chapter on the History of the Constitution of the United States. I have given, with as much brevity as seemed to be consistent with distinctness, an account of the circumstances attending the formation of the constitution; the successive steps taken ; and the difficulties encountered and overcome. Especially have I endeavored to show how perfectly indispensable it was for the preservation not merely of our national honor and prosperity, but of our national existence. And not only of our national pros- perity, but of the prosperity, order, and freedom of the integral parts of which our nation consists, and of the individuals who com- pose it. All these things the people of this country ought to know and to remember. This knowledge should help the people to value this con- stitution aright ; to learn, from the many and great difficulties which attended its creation, the perils which will always demand a watchfiil care and a constant defence of it : for the same or similar erroneous opinions, and the same diversities of feeling and of interest, which caused those difficulties, are operative now, and will perhaps always be operative. The lessons of the past were painful and distressing to those to whom they were first given. They are given to us, also, as well as to them. And in our own generation, other lessons, written in letters of blood, have been given to us, for us and our children. Would that we might hope that the mercy of God will permit these lessons to teach us and all coming generations that local or personal prejudices, opinions, feelings, or interests, become our worst enemies, when they threaten to. impair the excellence, to paralyze the energies, or imperil the permanence of that constitu- tion, which, obtained with so much difficulty, has already wrought so much good, and promises to secure it for us and our posterity. A CITIZEN OF THE UNITED STATES. 25 CHAPTER III. THE CONSTITUTIOIS^ OF THE UNITED STATES. We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and estabhsh this Constitution for the United States of America. ARTICLE. L Section. 1. AH legislative Powers herein granted shall be vested in a, Congress of the United States, which shall consist of a Senate and House of Representatives. Section. 2. The House of Representatives shall be composed of Mem- bers chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Elec- tors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their re- spective Numbers, which shaU be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. The actual Enumeration shall be tnade within three Years after the first Meeting of the Congress of the United States, and within every subse- quent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Provi- dence Plantations one, Connecticut five. New- York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other OflScers ; and shall have the sole Power of impeachment. Section. 3. The Senate of the United States shall be composed of two 26 THE POLITICAL RIGHTS OF Senators from each State, chosen by the Legislature thereof, for six Years ; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expi- ration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year ; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Sen- ate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he' shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside : And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and Disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States : but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators. .The Congress shall assemble at least once in every Year, and such Meet- ing shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall con- stitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment A CITIZEN OF THE UNITED STATES. 27 require Secrecy ; and the Yeas and Nays of the Members of , either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, -without the Con- sent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. The Senators and Representatives shall receive a Com- pensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same ; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office imder the United States, shall be a Member of either House during his Continuance in Office. Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amend- ments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have origi- nated, who shall enter the Objections at large on their Journal, and pro- ceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the objections, to the other House, by which it shall hkewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Sen- ate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States ; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations pre- scribed in the Case of a Bill. Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be imiform throughout the United States ; 28 THE POLITICAL RIGHTS OF To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws ou the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and cur- rent Coin of the United States; To establish Post Offices and post Roads; To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their re- spective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to-that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the MiUtia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, 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 Disci- pline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Govern- ment of the United States, and to ex,ercise Uke Authority over all Places pui'chased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock- yards, and other needful Buildings; — And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Con- stitution in the Government of the United States, or in any Department or Officer thereof. Section. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may re- quire it. A CITIZEN OF THE UNITED STATES. 29 No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Kegulation of Commerce or Keve- nue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all pubUc Money shall be published from time to time. No Title of Nobility shall be granted by the United States; And no Person holding any OfBce of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present. Emolument, OfBce, or Title, of any kind whatever, from any King, Prince, or foreign State. Section. 10. No State shall enter into any Treaty, Alliance, or Con- federation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender iji Payment of Debts ; pass any Bill of Attainder, ex post facto Law, or Law impair- ing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Toimage, 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. ARTICLE. II. Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [* The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Per- * This clause within brackets has been supereeded and annulled by the 12th ameiid- inent, on page 35. 30 THE POLITICAL RIGBTS OF sons voted for, and of the Number of Votes for each; -which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The Presi- dent of the Senate shall, in the' Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Elec- toi's appointed; and if there be more than one who have such Majoiity, and have an equal Number of Votes, then the House of Pwepresentatives shaE immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from- the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A Quorum for this Purpose shall consist of a Member or Members from twothirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.] The Congress may determine the Time of chusing the Electors, and the Day on which they shaU give their Votes; which Day shall be the same throughout the United States. No Person except a natural bom Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Deiith, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Com- pensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the follow- ing Oath or Affirmation: — " I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Abil- ity, preserve, protect and defend the Constitution of the United States. Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia-of the several States, when called into the actual Service of the United States ; he may require the Opinion, in writing, of the principal Officer in each of the executive A CITIZEN OF THE UNITED. STATES. 31 Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Sen- ate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, ■whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Ap- pointment of such inferior Officers, as, they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may hap- pen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Informa- tion of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on exti-aordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Ad- journment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the officers of the United States. Sectiok. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Con- viction of, Treason, Bribery, or other high Cilmes and Misdemeanors. ARTICLE III. Section. 1 . The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their,Services, a Compensation, which shall not be diminished duiing their Continuance in Office. Section. 2. The judicial tower shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under tlieir Authority ; — to all Cases affecting Ambassadors, other pubhc Ministers, and Consuls; — to all Cases of admiralty and maritime Jurisdiction ; — to Controversies to which the United States shall be a Party ; — to Controversies between two or more States ; — between a State and Citizens of another State; — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citi- zens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have 32 THE POLITICAL EIGHTS OF' original Jurisdiction. In all the other Cases before mentioned, the supreme Court; shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE. IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of eveiy other State, ^nd the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section. 2. The Citizens of each State shall be entitled to all Privi- leges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regu- lation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labom- may be due. Section. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Con.stitution shall be so consti'ued as to Prejudice any claims of the United States, or of any particular State. Section. 1. The United States shall guarantee to eveiy State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on AppUcation of the Legislature, or of the Execu- tive (when the Legislature cannot be convened) against domestic Violence. A CITIZEN OF THE UNITED STATES. 33 ARTICLE. V. The Congress, -whenever two thirds of both Houses shall deem it neces- sary, shall propose Amendments to this Constitution, or, on the Applica- tion of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, •which, in either Case, shall be vaUd to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conven- tions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress ; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article ; and that no State, without its Consent, shall be deprived of its equal Su&age in the Senate. ARTICLE. VI. All Debts contracted and Engagements entered into, before the Adop- tion of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws. of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Memlsers of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several'States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any "Office or public Trust under the United States. ARTICLE. Vn. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. 34 • THE POLITICAL EIGHTS OF ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CON- STITUTION OF THE UNITED STATES OF AMERICA, Proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth article of the original Constitution. (ARTICLE 1.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (ARTICLE 2.) A -well regulated Militia, being, necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (ARTICLE mj No Soldier shall, in time of peace be quartered in any house, withaut the consent of the Owner, nor in time of war, but in a manner to be pre- scribed by law. (ARTICLE IV.) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be vio- lated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be Seized. (ARTICLE V.) No person shall be held to answer for a capital, or otherwise infamous crime , unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any Criminal Case to be a witness against himseK, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (ARTICLE VI.) In all criminal prosecutions, the accused shall enjoy the rioht to a speedy and public trial, by an impartial Jury of the State and district wherein the crime shall have been committed, which district shall have A CITIZEN OF THE UNITED STATES. 35 been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have Compulsory process for obtaining Witnesses in his favour, and to have the Assistance of Counsel for his defence. (ARTICLE Vn.) « In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. (ARTICLE Vm.) . Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (ARTICLE IX.) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparagS others retained by the people. (ARTICLE X.) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ARTICLE XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted agaiast one of the UniCed States by Citizens of another State, or by Citizens or Sub- jects of any Foreign State. ARTICLE Xn. The Electors" shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall 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 shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certifi- cates and the votes shall then be counted; — The person having the greatest 36 THE POLITICAL EIGHTS OF number of votes for. President, shall be the President, if such number be a majority of the -whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers 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 from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House ,of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next follQwing, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vioe-J'resident, shall be the Vice- President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. ARTICLE Xm. 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 2. Congress shall have power to enforce this article by apprbpriate legislation. ARTICLE XIV. Section 1. All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, hberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the ex- ecutive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime the basis of A CITIZEN OF THE UNITED STATES. 37 representation therein shall be reduced in the proportion -which the num- ber of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Sectiojt 3. No person shall be a senator or representative in Congress, or elector of President and Vice-President, or hold any office, civil or mil- itary, under the United States, or under any State, who having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; but Congress may, by a vote of two-thirds of each house, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obhgation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void. Section 5. The Congress shall have power to enforcS, by appropriate legislation, the provisions of this article. ARTICLE XY. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. 88 THE POLITICAL RIGHTS OF CHAPTEB IV. COMMENTS UPOK THE CONSTITUTIQI^ OF THE UNITED STATES. SECTION I. WHAT OUR CONSTITUTIOIV IS. From the day the constitution was adopted to this time, the question, what that constitution is, has divided men's minds. At sundry times debated and discussed with earnestness, and arraying different political parties against each other, at length the antago- nism which had. been growing for generations was intensified into open hostility, and the late war broke forth. Slavery made the political question a local question. But those who seceded from the Union regarded the antislavery movement only as the occasion for exercising their right of secession. Some went so far as to maintain that each State had a right to secede whenever it chose to, and for no other reason than its will and pleasure. But generally they rested theu' secession upon the principle that the constitution is a compact between the States ; that each of the parties has the right of judging whether that compact be violated ; and that any party deeming it violated has a right to leave or secede from the Union formed by the compact. It is to the last degree nnjust and unwise in those who stand on either side of this great question to accuse those who stand on the other side, of holding views which are wholly and obviously un- reasonable, and are_ induced only by personal, local, and selfish interests. On the contrary, the question is one of great and inherent difficulty, and from the foundation of the government has divided able and honest men. One of the forms of this question is this : Is the Constitution of the United States a compact ? The answer I should give is : Tes, it is a compact ; but it is also much more than a compact. The question may then be asked, Supposing it to be a compact, is it a social or a federal compact ? In other words, is it a compact between all the members of this political society, meaning thereby all the individuals who collectively make up the people, each one entering into covenant with all the rest ; or is it a compact between the several States who come together in a federal league ? A CITIZEN OF THE UNITED STATES. 39 Here my answer would be, it is both ; neither exclusivelyj but both reconciled into unity. It is, in the first place, a compact between the States. The very name of this nation, " The United States," indicates this. The States, while still colonies, first met by delegates to think of, and, if they could, provide for, confederation. The States, then, met by delegates, and prepared and submitted to the people the Articles of Confederation. When it became apparent that these were insuffi- cient and unsatisfactory, the States came together by delegates in a convention, which prepared this constitution, and returned it to the States. It was provided that it should go into force, not when such a number or proportion of the people should approve of and accept it, but when it should be ratified by the conventions of nine of the States. So, too, the constitution itself constantly preserves the dis- tinction between the States, as in choosing the President and the members of the Senate and House of Representatives, and continu- ally refers to the States elsewhere. On the other hand, the constitution itself, as decidedly declares that it is made by the people. " We the people of the United States, ... do ordain and establish this constitution for the United States of America." It is made/br the States; but it is the people who make it. The States met in convention to frame it ; but they met by dele- gates appointed by the people. And when it was framed and re- mitted for approval and adoption to the States, it was sent there, not to be ratified by their executive or legislative bodies,, but by conventions of delegates to be chosen by the people expressly to take-this matter into consideration. These considerations, on the one side and the other, rest perhaps too much upon mere verbal construction. There are those of greater weight which we may invoke to help us answer this ques- tion. No precedents in human history can give us much assistance. The work which our fathers had to do was a new work. Leagues and confederacies had been made before, but never under such circumstances or for such a purpose ; and the work they did must be judged of by itself 'The very first principle which came forth from the circum- stances and doings of the time is, that when men come together to accomplish any great purpose, the will of the majority must govern. Henceforward this great principle must stand forth among human transactions, and wield a force which it never possessed before. There had been forms of government which called themselves republican. But this great word bore a very different meaning formerly from that which it bears now. Our fathers had achieved 40 THE POLITICAL RIGHTS OF their independence. They had ^11 been subjects of a personal sov- ereign. When they cast off this sovereignty, they had no master ; nor were any of them masters over the rest. They came together as pohtical equals : all free, and all equally free. It followed, of necessity, that the will of the majority must govern. Everybody felt, everybody saw, that if the majority did not govern, nothing could govern ; and if there were no government, there could be no social order, no organized community. Under their charters, the people of the different colonies had voted on many important matters, and determined them by a ma- jority. When the colonies became States, this became, of neces- sity, the universal rule. Within each State no other method was thought of The machinery of counties and townships was still made use of, because they were accustomed to it, and it was the most convenient way of ascertaining the will of the majority. So when the question came, Shall we form a Union, shall we become a nation, and how shall we become a nation, and what shall it be ? — all these questions were answered by a convention of delegates, chosen in the several States by a majority vote. That convention framed a constitution for the people ; and the people in the States, and through State organizations, accepted it. This was done in conventions of delegates chosen by majority votes, and the constitution was ratified in these conventions by a majority vote. And what did the people do ? " We the people of the United States . . . ordain and establish this constitution." Surely words of such emphatic meaning were not chosen by accident or without design. They tell us that the constitution is a supreme, a fixed, and abiding law ; ordained and established, so that it might make of the people, from whose will it was bom, a nation, — a permanent and abiding nation. This it could not be and do if the very existence of the constitution and of the Union itself were made dependent upon the will and pleasure of any portion of the people who framed it. No portion of the people, whether under the name and form of a State, or county, or township, or by any other designation, could annul it. True to its fundamental principle, the will of the majority, and knowing that the will of the majority may change either from change of circumstances or the teaching of experience, it provides the means of change, which will be considered presently. But unless and until changed in accordance with these provisions, the constitution remains, the fixed and abiding, the ordained and estab- lished, framework of our political and national existence. The principle which underlies the Constitution of the United States, and every State constitution, and upon which all are founded, is this, — the utmost liberty is given to the individual, and yet he, A CITIZEN OF THE UNITED STATES. 41 vith others, must yield so much of this as is needed to give due life and efficiency to the nearest and least community of which he is a member ; this smaller community joins with others to jaake a larger ; and that a yet larger, until the series ends in a nation which embraces the whole. And in the whole series, from the lowest step to the highest, each for its own sake gives up so much of right and power as is needed to make the community which stands on the next higher step all that it should be. Founded upon this principle, the system of government formed by the Constitution of the United States is not, I think, to be regarded as, merely and upon the whole, the best thing which circumstances permitted our fathers to construct, but as in itself near to the perfection of a republican government. I am perfectly aware that this may seem to many persons an obscure statement. Let me try to explain my meaning. The first form of nnion fbr a common regulation is in the family ; and that the family may be happy, each individual member gives up somewhat of his or her own mere will and pleasure. All our citizens, who are not exceptions to a prevailing method, live in fam- ilies ; and it is there that the work of government begins ; there its first lessons are learned ; there its habits are formed ; there its first fruits are gathered ; and there, if the family government is wise and good, those fruits are peace and happiness and mutual assistance and universal improvement. Sut families need that duties should be performed and advantages secured which demand combination with other families, and the strength and support of united counsel and united action ; and to this end families combine into townships or cities. To the town or city, as an organization, are committed all those duties and utilities the need of which has called them into being, and to the town or city is freely entrasted all the power requisite to a full and complete discharge of all those duties. And then the same principle is further applied. Beyond those of the towns and cities are, again, common duties and utilities, which are all those of a certain district ; and within this district the towns coalesce into counties, to which, again, as separate organizations, are confided -the duties which can be best discharged in this way and by this means ; and with these duties goes all the power requisite to the best performance of them. Nor is this principle then arrested. For the counties are gath- ered into one body, and this is the State. And who are they who then form the State, — who constitute the State? The people, and the whole people. They who first form its families, and then its towns and cities and counties, finally, in their widest assemblage, form the State. And for what do they form it ? Precisely for all 42 THE POLITICAL RIGHTS OF those duties and all those utilities which embrace the whole people, which require for their due performance a due regard to the whole people, and which may serve not only to cement all together by a common interest, a common safety, and a common prosperity, but may use the strength of the whole for the protection of each, and for the preservation of all personal rights, and family rights, and all the rights of those lesser and larger communities into which families and persons are gathered. And, then, what power do the people who constitute the State give to it ? Abundant power to discharge all its duties ; to do the whole of its work of legislation for the whole, and of common de- fence and protection through all the departments of government ; but nothing, more. This, then, is the theory of our State polity ; and so far as we are wise, this it is in active operation ; and so far as we are truly prosperous, this prosperity is its effect. Did the thought ever enter into the mind of a human being that it would be wise for any State to abandon to-morrow all town and city and county lines and organizations, and commit all the duties now performed by their means to the central power of the State ? No one can imagine such a thing. And he who should desire it must, if he would be consistent, go yet further, and propose also to obliterate all family lines, all family organization and authority, and ask of the central power to determine what food shall be placed on every table, and what clothes every member of the household shall wear. No ; State rights, in the just and rational meaning of that phrase, are perfectly compatible with national sovereignty. We all feel that our present form of government is perfectly adapted to the great end of all republican government, and that is, a wise self-government-; and the reason of this adaptation is, that it leaves to the individual, with the least possible control or inter- ference, the freedom of voluntary choice and action. And it gathers individuals into communities, the least, the larger, and at length the largest, only so far as a common necessity and a common good require this, leaving to each one full power to do all that is needful to subserve and protect its best interests, and promote its highest prosperity. And then it seeks so to form these communities, and so to provide for them, and so to act by its common legislation upon individuals and the bodies into which they are gathered, as to lead and guide each and all into that conduct which shall be best fot each and for all, with the least possible compulsory action upon any. When the several States came- together and formed a nation, what else did they but take a step further forward upon the same pathway, which each State does so well and so wisely in treading for herself? It seems to me that it was precisely this step and no A CITIZEN OF THE UNITED STATES. 43 other which was taken when the Constitution of the United States was formed, and this nation was born. It may be asked, la there not here a division of sovereignty and of power, which shows that much is wanting to constitute the full strength of a national government? I answer. The national gov- ernment has at this moment, by force of the constitution, all the strength — absolutely all — which it needs, or could profitably use, as a central national government. I answer, next, that, by the pro- visions of our national and State constitutions, the reserved powers of every State may be, and, so far as that State does its duty, will be, prepared and developed to their utmost efSoiency, and then imparted to the nation in its need. Did not the eflTorts made by all the States during the late war prove this? The constitution thus framed makes use throughout of State machinery. More than this, it recognizes the States as separate organizations ; and we shall presently see that it watches with the most careful consideration over the interests and safety of the smaller and weaker States which thus came into union with larger and stronger States. But through all this, and by means of all this, the one end and aim in framing the constitution, in adopting it, and in carrying out its various provisions through coming ages, was to ascertain and carry into effect the will of the majority. This, we cannot understand too well, is a new thing upon earth. From the earliest times of recorded history there was never before an instance of a people, large enough to form a nation, perfectly liberated from all restraint, all government delivered over into their own hands, with no power on earth to restrain or coerce them, and then deliberately forming an organic ^.constitution by which they should govern themselves, by the vote of the majority. Because mankind had no experience of such a thing as this, our fathers had nothing to help them in their work but their knowledge of human nature, their earnest desire to secure the prevalence of right over wrong, and their wisdom in discovering the means of doing so. To that wisdom we owe, under Divine Providence, our con- stitution ; and great is the marvel that the experience of nearly a century, in good part a stormy and painful experience, should have revealed so few errors or deficiencies. One of the greatest dangers to be guarded against was the abuse of their power by the majority. In all ages, the supreme power, the sovereignty, whatever its form, had been abused. Emperors, kings, and absolute rulers, under any name, had sometimes been despotic, unjust, and cruel. When the sovereignty was given to a majority, what was to prevent that majority from tyrannizing over a pros- trate minority ? The answer to this question is,- The constitution. 44 THE POLITICAL RIGHTS OF It accomplishes the purpose of curbing the will of the majority, so that while free for all good, it might be restrained from evil, by three means. First, the constitution itself, as the law of the law, as a declaration of the rights of all men, and a fixed and unyielding barrier against any assault upon those rights, exerts a powerful influence to protect the minority against the abuse of power by a majority Next, the checks and hinderances by which the will of the people is delayed by repeated and protracted consideration before it acquires the force of law ; while it is only delayed, and not prevented from enforcing itself as law after it has received due consideration. This is accomplished mainly through the structure of the legislative body; and we shall treat of it more fully when we come to consider the form and functions of the body to which the power of making law is entrusted. But most of all is the supremacy of law and right secured by the -judicial power, its full authority, its independence, and its place and function as interpreter and defender of the constitution. This subject, also, which we deem of vital importance to a just comprehension of our constitution, we shall treat of more fully when considering the judicial power: its structure, its duty, and its value. SECTION II. THE RECONCILIATION OF STATE RIGHTS AND NATIONAL SOVEREIGNTY. From the facts stated in the chapter on the history of the con- stitution, it will be seen that the greatest diflSculty in forming and in adopting it arose from the reluctance of the people in the several States to relinquish any part of their independent sovereignty. They saw and they felt that if the United States became a nation, it must possess, in all national matters, sovereignty ; and that, so far as it was sovereign, the several States were subordinate. As this was the great objection to the constitution, so the adoption of the con- stitution must be regarded as a yielding of the States on this point. It must, however, be remembered, that while our nationality involved the giving up by the States of so much of their sovereignty as was necessary to constitute a national sovereignty, this necessity . went no further. The severq,! States gave up nothing which they could hold, and the United States be a nation. Here was the practical diflSculty for those whose work it was to frame a constitution ; and they displayed nothing less than a marvellous wisdom in overcoming A CITIZEN OF THE UNITED STATES. 45 this difSculty, or in taking from the States and giving to the Union all that was necessary to make the TJnion a nation, and leaving to the States all that was not necessary for this pui-pose. Let ns now look at the provisions by which they effected 'this purpose. The second clause of the sixth article of the constitation is as follows: "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." This article asserts and establishes the nationality of the ITnion, and the sovereignty of this nationality; for that is the necessary meaning and effect of making all laws and treaties made under its authority the supreme law of .the land. This sovereignty being established, the next question is, What does it embrace, or how far does it extend ? The answer is, Just so much and so far as it is carried by the constitution itself, and not a jot farther. The constitution being a written instrument, the pur- pose of which was to create a national constitution by abstracting so much of the sovereignty of the States as was necessary therefor and putting together what was thus taken, the natural and just con- struction would have been, that whatever was not taken fi'om the States, expressly or by necessary implication, was left to them. But to make this sure. Articles IX, and X. of the amendments were adopted. They provide, that " the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. . . . The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The constitution has been subjected in all its parts to the severest examination and the most acute criticism. But it may safely be said that no one has succeeded in pointing out clearly and rationally, any claim or assumption in the constitution of any right or power which the Union possesses or can exercise not necessary to our existence and prosperity as a nation. But the principles of con- struction above stated, and the amendments above cited, as they reserve to the States whatever is not taken from them, and as they give supreme authority to laws made under the constitution, required express declarations as to what subjects' Congress could make laws about, and also as to what things the States should not do. The first will be found in^he eighth section of the first article, beginning, "The Congi-ess shall have power;" the second may be found in the tenth section of the same article, beginning, " No State shall," &c. 46 THE POLITICAL RIGHTS OF We shall have occasion hereafter, in the course of these comments, to refer more particularly to some of these permissions and to some of these prohibitions. Here we will only say, that a familiar prin- ciple of legal construction will apply to both of these enumerations ; namely, that an enumeration which purports to be complete and exhaustive, excludes all items not expressly included. A most important provision for the preservation of State rights is to be found in the peculiar construction of the Senate. The representatives in Congress are apportioned among the several States according to the number of their population. But the Senate is composed of two senators from each State. This provision is appar- ently a very simple one-; but it is of extreme importance. It was a compromise — more than ingenious, for it was a wise and just compromise — between extreme views, both of which were pressed with very great urgency. , On the one hand, it was said to be of the very essence of a republican representative government that all its citizens should be equal in power and privilege. If the United States were to be a nation, it was to be a republic, and could not, without losing an essential quality of a republic, give to a por- tion of its people a distinct advantage in the exercise of political power over any other equal portion. Admit that a large State would have more power in the government than a small State, no citizen or citizens of the larger State would have more power than the same number of citizens in the smaller. If the larger State had more power, that only meant that its citizens, taken together, possessed the same power that they would have if, in the same number, they lived in small States ; and why should their political power be taken from them because they united together to form a large State ? On the other hand, it was contended that, for many purposes, it must be considered that the States had come together to form a Union. They had, each one of them, occupations and interests which were peculiar to that State. If they joined with the much larger States in a government which was purely popular, the small must yield to the large in all things, and be crushed in the conflict. Because the Union would be a republic, much power must be given to a merely popular vote, or to majority of numbers. But because it was a Union formed from independent and sovereign States, who gave up much of their independent sovereignty for the sake of union, some regard must be paid to their rights as States, and an equality between the States must be conceded in some important points of political power. This was admitted ; and how much was conteded may be inferred from the fact that Delaware, with a territory of a little more than two thousand miles, and a population of about one hundred thousand, A CITIZEN OF THE UNITED STATES. 47 has the same representation in the Senate that New York has, with a territory more than twenty times as large, and a population about forty times as large. Hence the two States have equal powers as to the acceptance or rejection of treaties, the confirmation of all appointments by the President, and in trials of impeachment. More- over, as each State has as many electors of President and Vice- President as the whole number of its representatives and senators, the smaller States have in this important matter a power larger in proportion to the number of their population than the larger States possess. But perhaps the most important advantage secured to the smaller States is, that they have equal power with the larger as to any amendments of the constitution, as they can be made only by three- fourths of the several States ; and should there be an agreement in opinion or feeling between all, or nearly all, of the smaller States, it might come to pass that such amendments would be made or be rejected by much less than a majority of the whole people. SECTION in. THE DISTRIBUTION OF POWER. There are three great governmental powers or functions. One is the executive, which carries all the laws into effect ; another is the legislative, which makes all the laws ; the third is the judicial, which determines whether that which is alleged to be law is in fact law, and which construes and interprets the laws', or declares what they mean, and how they apply to any particular case. It is perfectly certain and obvious to any one who will think about it, that the union of these three powers in the same pei-pcn or body makes him or it perfectly despotic. For if he who exe- cutes the laws makes them just as he pleases, and then construes and applies them just as he pleases, he must needs be a perfect despot, or, as the modern word is, an autocrat, which means one who has all power in himself. • Then it should be obvious to us, for it is quite as true, that prog- ress away from despotism, progress in a well-ordered and -guarded liberty, depends upon and may be measured by the degree in which these three great and fundamental powers of government are sep- arated from each other, and each of them protected from the invasion of the others. Then the executive can do nothing but execute the laws which are made for him by one body and interpreted for him by another, over which he has no absoltite control. Legislators 48 THE POLITICAL RIGHTS OF have less temptation to make laws to strengthen their own hands ; because the laws, when they are made, pass out of their hands, leaving behind them no power to enforce the laws. The judicial * body is under still less temptation to interpret laws wrongly ; for it can gain nothing by it, as it has nothing to do with making the laws or with enforcing them. Hence, as civilization advanced in the world, and governments improved, this distinction was made, and the importance of it dis- cerned. Thus, in England, the government is monarchical in form, but a mingled web of aristocracy and democracy in fact ; for the English king or queen has no political power, and is only a pageant. But there are many republican elements in their government, and a great deal of freedom in the nation. And there this distinction between the three great powers of government is carried out to a considerable extent. Our fathers, when they lived in colonies sub- ject to Great Britain, had more of this distinction than they had in the parent country, and saw it more clearly and valued it more highly. And when they became independent, and framed their own constitutions. State and national, they took excellent care to make this distinction as perfect as possible. We shall see as we go on that this distinction is not perfect ; and perhaps we shall have reason to look upon this imperfection as a weak spot in our national constitution, and to think it would be strengthened if these great powers were more distinctly separated, and the bodies which hold them made more independent of each other. SECTION IV. THE EXECUTIVE POWER. The exeontive power is vested in a President. He holds his office for four years ; and there is nothing in the constitution to prevent him, or the Vice-President, from being re-elected any number of times. Originally the method of electing the President and Vice-President was very different from that now in force. Then the electors voted for two .persons, and whoever had the highest number of votes (if he had a majority of all the votes) was President; and the person having the next greatest number of votes was Vice-President. If there was no majority, the House of Representatives, voting by States, and each State having one vote, chose the President. At the election for 1801 there was no majority, — Thomas Jefferson having sixty-three votes; Aaron Burr, the same number; John A CITIZEN OF THE UNITED STATES. 49 Adams, sixty-iive ; C. C. Pinkney, sixty-four ; and John Jay, one. On the first ballot in the House, eight States toted for Jefierson, six for Burr, and the votes of two States were divided ; three States having then been added to the original thirteen. There were thirty-four ballots without any change from the first ; but on the thirty-sixth ballot Jefferson had ten votes and Burr had four: so Jefferson became President, and Burr Vice-President. This exhibition of the incon- venience and embarrassment which might arise from that method of electing these officers, led to the 12th amendment, which was adopted in 1804, and has been in force ever since. By this araend- , ment the electors vote in distinct ballots for President and for Vice-President. The provisions for filling these offices in case no one has a majority will be seen in the 12th amendment, as hereto- fore given in the constitution. The' theory of choosing the President and Vice-President by electors is excellent; but it does not work well. This theory is, that the people in the several States should choose their wisest men, and that the electors so chosen should choose the men for these high offices who, in their judgment, were best fitted for them. But in point of fact the electors exercise no judgment whatever. They are simply the instruments of the party which chooses them, and are chosen to vote for the candidate of the party, and always do so. As soon as the electors are chosen and known to the country, it is certainly known who will be President and Vice-President, the vote by electors having become a mere formality. These officers are, in fact, chosen by a popular vote. But the machinery of electors chosen by States may put the choice of President and Vice- President into the hands of a minority of the people, because each State has as many electors as it has representatives and senators ; and a small majority in a large number of the smaller States might constitute a majority of the electors, while the minority of the electors were chosen by and represented a majority of the people. There have been, on this and other grounds, many attempts to avoid these mischiefs by a direct popular vote. As yet, however, they have not succeeded. For the powers of the President, we refer to the second article of the constitution. We must, however, look to the seventh section of the first article for a most important power given to the President ; it is what is commonly called the veto power. Every bill which has passed the House and the Senate is pre- sented to the President. If he approves and signs it, it becomes a law. If he does not approve it, he may return it to the House in which it originated, with his objections. It then becomes a law if il be passed by two-thirds of each House. He must return it within 4 60 THE POLITICAL RIGHTS OF ten days (Sundays excepted) after it is presented to Mm, or it be- comes a law without his signature. But if it does not receive his signature, and before the ten days expire Congress adjourns, so that the President has not the ten days to keep it and then return it, it is not a law. This veto power was probably copied from the British system, and seems to give the President some portion of monarchical power. But iri the British system it has become wholly obsolete. The phrase, " King, Lords, and Commons," as designating the legislative power, is meaningless ; the lords and commons having the "whole power of legislation, and no king has ventured to interpose his neg- ative since 1692; This negative of the king would be final, for in theory it is absolute. But if a British sovereign should undertake at this day to resist the power of the lords and commons by refusing his assent to a law which had passed both Houses, it would cause a revolution ; while our Presidents have used this 'power, and some- times quite freely. It might seem, therefore, that we, republican as we are, have more of a king than Great Britain has. But this is not the right way of looking at this matter. The negative of the President amounts to just this. If he disapproves a bill, he can require a reconsideration of it by the Senate and House of Representatives, with any light which he may throw upon the objections to the bill, and then a vote of two-thirds. This is all. It is a wise precaution against bills which might be passed incon- siderately, or under the influence of personal or party passion, by a bare majority. This is a power properly placed in the hands of the chief magistrate ; and whenever a President believes that a bill is so objectionable or so questionable as to call for reconsideration and a larger majority, it is his duty to require this by withholding his assent. As to Ms preventing a biU from becoming a law by " pocketing it," as is the phrase. Congress, which is the master of its own ad- journments, can avoid that by continuing their session. It is, how- ever, not the right way. Congress should not be compelled to remain in session, and, if it is the close of the political year for which the representatives are chosen, cannot remain in session. The constitution cannot intend that the President in such case should prevent a bill from becoming a law by merely keeping it from Congress. THE VICE-PEE SIDBKT. By the first section of the second article of tiie constitution it is provided that in case of the removal of the President from oflice, or A CITIZEN OF THE UNITED STATES. 61 his death or inability to discharge the duties of the office, the same shall devolve on the Vice-President ; and Congress may provide by law for the case of the removal, death, resignation, or inability, both of President and Vice-President, declaring what officer shall then act as President. Accordingly Congress has provided by law that, in such case, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives for the time being, shall act as President until the disability be removed or a President be elected. The Vice-President is President of the Senate, but has no vote, unless they be equally divided. This constitutes a difference be- tween the Senate and the House. The people choose the President of the Senate when they choose the Vice-President of the nation. The House of Representatives chooses its own Speaker. The Sen- ate also chooses a President pro tempore, who takes the place of the Vice-President when he is absent. The second article of the constitution provides that no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the constitution, shall be eligible as President. The twelfth article of amendment provides that no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President. SECTION V. THE liEGISI-ATIVE POWER. There can he no doubt that our fathers profited by the experience of Great Britain in vesting the legislative functions in two bodies. There it grew up by what we call accident ; and, indeed, the early history of the English Parliament is somewhat uncertain. Now, however, the Parliament is composed of the House of Lords, of which the members sit by hereditary tenure (excepting the Scotch and Irish lords, who are elected from the peers of each country, and are called representative peers), and the House of Commons, which consists of members chosen by the votes of those who pos- sess the elective franchise. We have no lords, and no hereditary tenure of office or place, and', it may be hoped, are not likely to have them. And the resem- blance of a Senate to a House of Lords, however remote, caused a prejudice against this division of the legislative functions between two Houses. There was, indeed, great opposition to this ; and some wise men doubted its expediency and safety. But better counsels 52 TEE POLITICAL RIGHTS OF prevailed. By the Articles of Confederation Congress had consisted of only one body; and a part of the feebleness and inadequacy of that confederation was attributed to that fact. It was, moreover, seen that the requirement of the consent of two distinct bodies supplied a useful and necessary protection against hasty and passionate leg- islation, not only by the delay it caused, but by the twofold con- sideration of a proposed measure. Not only so, but by providing that one of the Houses should be chosen in a different way and by a different body from the other, any measure would be looked at under a different aspect, and a decision be governed by somewhat different influences. In a republican government, acting under a constitution care- fully discriminating between the different functions of government and placing them in different hands, there is always danger that one of these functionaries will strive to enlarge its own power by absorbing the functions of another. The executive must be guarded from the temptation and the opportunity of encroaching upon the legislature or the judiciary. The legislature must be guarded from the temptation and the opportunity of encroaching upon the exec- utive or the judiciary. At different times we have heard the cry of " Cesarism " raised, which means that there are some among the people who suspect the President of aiming at more than republi- can, — at imperial power. At other times, watchful men have thought they saw a mischievous increase in the pretensions of the House of Representatives, and perhaps in the power they assumed and exercised. Whether these suspicions were well or ill founded, nothing can be better founded than the fear that a body possessing legislative powers will always be exposed to the temptation of increasing that power, and making themselves sovereign in fact, however another name and appearance may be preserved. History proves this. The Long Parliament in England voted itself per- petual, and for a time was supreme. Holland was foi-merly gov- erned by one representative body, annually elected. They afterwards voted themselves from an annually to a septennially elected body ; then for life ; and finally exercised the power of filling up all vacant offices : and thus the government became an oligarchy and a tyranny, although retaining the name of a republic. Think of it as we may, this danger will always exist. And there can be no more efficient barrier against it than the division of the legislative function, and conferring it upon two bodies, each of which will watch the other, and detect, expose, and resist any attempted encroachment. Then, also, greater stability is given in this way to the course of legislation, by obstructing hasty and inconsiderate change, and increasing the probability that all actual objections to the proposed A CITIZEN OF THE UNITED STATES. 53 change will come under consideration. And there is also an advan- tage in the greater permanence which is gained, if to the memhers ' of one of these bodies a longer term of office is given, as is the case with our Senate. There is still another reason. It was deemed desirable to give a portion of executive power, or rather a direct check upon the exec- utive power, to the legislative body. And this could be done more safely and more conveniently if there were two bodies, one smaller and more permanent than the other, and by this permanence further removed from the passions or prejudices of the hour and the fluctu- ations of public opinion ; and to this smaller body was given this restraint over the executive. SECTION VI. OF THE SENATE. The Senate is composed of two senators &om each State ; and each senator has one vote. It has equal and concorrent power with the House in all the common topics of legislation, excepting that the seventh section of the first article declares that " all bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose or concur with amendments, as on other bills." • This provision is undoubtedly copied from the British Parlia- ment. There only the House of Commons can originate money bills, as they are called. How this usage, which has now become a settled rule, grew up, is not certainly known : but probably from the fact that the House of Commons itself began by the calling together by the King of persons from the boroughs, cities, and counties, when he wanted supplies of money from them. -In our constitution, this privilege of originating a measure which would tax the people was given exclusively to the representatives, because that body came directly, and most recently, from the people. Per- haps an additional reason was found in the wish to balance the two Houses properly. As the Senate must concur with the President in making war and peace, and so may be said to have hold of the sword of the nation, it was thought well to give to the representa- tives the exclusive power to originate money bills, and thus to give them a stronger hold upon the nation's purse. In Great Britain, the lords oan do nothing with a money bill but accept or reject it. Our Senate, however, may propose amendments, as in other bills. 54 THE POLITICAL RIGHTS OF The senators are not chosen directly by the people of a State, but by the legislature ; thus making another difference between them and the representatives. The constitution does not prescribe the manner in which senators should be chosen ; but, as it was obvi- ously desirable that there should be some uniformity in this respect, it was provided by a law approved July 25th, 1866, that the legis- latures of the several States should elect senators in the following manner : Each House, by a viva voce vote of each member present, shall name a person for senator, on the second Tuesday after the meeting and organization thereof. On the day following, both Houses shall meet in assembly. If the same person has received a majority of all the votes cast in each House, he shall be declared duly elected senator ; if not, the assembly shall proceed to choose a person by a viva voce vote, and if that person shall receive a majority of all votes of the joint assembly, a majority of the members of each House being present, he shall be declared duly elected. If no senator is elected on the first day, the joint assembly shall meet and take at least one vote each day, until an election is secured. When a vacancy shall occur during the session of a legislature, the same proceedings shall be held on the second Tuesday after notice of such vacancy shall be received. The only objection to this method is, that it puts it in the power of a majority of either House to prevent an election, by staying away from the assembly. The constitution does not declare whether the governor of each State must approve the election, as in the case of common bills ; but usage seems to have settled that Ijis approval is not necessary, and consequently that he cannot invali- date the election by withholding his approval. Senators are elected for six years ; and are divided, by senatorial act, into classes, — one-third, or as nearly that as is practicable, going out eveiy two years ; care being taken that the two senators from each State shall go out in different years. This term of six years was a compromise between extreme views : some of those who framed the constitution wishing them to retain office during good behavior, — that is, for life, unless they misbehaved ; others saw no reason why they should retain ofiSce longer than the representatives. But the desire to give to the Senate more stability and permanence prevailed, and so the term of six years was adopted. We have seen that the Senate, if not a sharer in the executive power, holds at least a most important check upon it, inasmuch as the President can take but few important measures without the advice and consent of the Senate. Only with it can he appoint ambassadors, consuls, and other public ministers, and judges of the Supreme Court. Congress may by law vest the appointment of A CITIZEN OF THE UNITED STATES. 55 inferior offices as they think proper, — in the President alone, in the courts of law, or in the heads of departments ; and have done so to some extent. The President alone, as the supreme executive of the nation, can make treaties with foreign States and powers. But the treaty is not valid unless two-thirds of the senators present when the vote is taken concur. As the Senate thus seems to partake of the executive power, so it seems to partake of the judicial power, in that it sits as a supreme court for the trial of impeachments. That topic, however, will be treated of in its own section. POWBE AS TO THBIE 0W3!f MEMBEES. Each House is the judge of the elections, returns, and qualifica- tions of its own members. This would seem to be a power of judg- ment over the right of any person to become a member. Generally, If this right comes into question, it is by the petition or remonstrance of some other person who claims to be a member, thus giving rise to what is called a " contested election." When such a case occurs, it is investigated according to the rules of the House to which contestants claim to belong. This is usually, or perhaps always, done through a committee, who ascertain the facts, and report them to the House, which then proceeds to adjudge the question. The power to expel a member is given by the clause immediately following. The ques- tion may be asked. If either House of Congress exercises either the power of admission or the power of expulsion wantonly and wrong- fully, what is the remedy? The answer is. There is no remedy. Some court, or body, or tribunal, must decide all questions without appeal, or there would be no final decision. This final power is given to each House upon these questions. A wrongful decision would be, in this respect, like the verdict of acquittal by a jury of a ■ person charged with crime, and proved beyond all rational question to be guilty. If the jury see'fit to say he is not guilty, he must go free, and the vei-diet cannot be annulled or questioned. In Massa- chusetts, where each house of the legislature has this power, a man was expelled for misbehavior from the House of Kepresentatives. He carried the case to the Supreme Court; but that body decided that they had no power over the decision of the House. SECTION VII. THE HOUSE OF REPKESENTATITES. Bepresentatives are chosen by the people of the several States. They are apportioned among the States according to the number of 56 THE POLITICAL RIGHTS OF people in each State, and this number is ascertained by the national census, of which more will be said presently. The second section of the first clause of the constitution provides that the number of rep- resentatives shall not exceed one for every thirty thousand ; that an enumeration of the people shall be made within three years after the first meeting of Congress ; that each State shall have at least one representative ; and that, until an enumeration is made, New Hamp- shire shall be entitled to three; Massachusetts, eight; Rhode Island and Providence Plantations, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one ; Mary- land, six ; Virginia, ten ; North Carolina, five ; South Carolina, five ; and Georgia, three. Sixty-five in all. The present number is two hundred and ninety-two. A table will be given presently, one column of which, giving the number of representatives to each State, shows that four of the thirty-seven States' have but one representa- tive each, while New York has thirty-three. SECTION VIII. PRIVILEGES OF SENATORS AJVD REPRESENTATIVES. FEEEDOM FEOM AEEEST. The first paragraph of the sixth section of the first clause of the constitution contains a provision which is very easily misunderstood as to its ground and purpose. The provision is, that senators and representatives shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses, and in going to and returning from the same. This provision is undoubtedly imitated from a rule of the British Parliament. There it grew up as a personal privilege, which, in the days when arrest for debt was allowed and practised far more than it is now, was of great value. But this provision was not inserted in our constitution on the same ground, although it has the same effect. It was intended to secure to the nation the services of its servants, when employed in attending to its business, from hinderance or interruption from the pecuniary claims of individual creditors. It does not relieve the members from the necessity of answering in person when they have committed some public wrong, for the public interest requires that all men should be amenable to the law in such case; but they cannot be arrested for debt, nor taken on execution for debt. A CITIZEN OF THE UNITED STATES. 57 NOT TO BE QUESTIONED ELSEWHEEB FOE SPEECH IN EITHEE HOUSE. The last clause of this same paragraph provides that they shall not be questioned in any other place for any speech or debate in either House. This, also, is not intended merely as a personal privilege to the members ; but to secure to them, for the public good, the most perfect freedom of discussion and debate. Nor is it intended to authorize or sanction any abuse of this power, by per- mitting members to indulge, without check or fear of punishment, in personal vituperation, or in malignant slander, or in giving credit and wide diffusion to statements and allegations which they know to be false. It is said that members shall not be questioned for speech or debate "in any other place." But, then, in that place, when such malignity expresses itself, it may be questioned, and should be questioned. This is one of those powers which must be given ; for the public good imperatively demands it, however liable to abuse it may be. Surely the wise framers of our constitution were not mistaken in believing that the sense of honor and of duty of each House would suffice to prevent any frequent or extreme misuse of the right of debate, even if the sense of personal decency did not suffice to restrain membersr SECTION IX. POWER TO REGULATE COMMERCE. The clause of the constitution which relates to this subject gives power to Congress "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Every part of this clause, and almost every word of it, has given rise to much discussion, and presented questions not without their difficulty. We will first consider COMMEECE WITH FOEEIGN NATIONS. It is obvious that such a power is absolutely necessary to our holding any distinct place among the nations. It is probable that some commerce existed among different tribes and races from the earliest dawn of civilization. With the growth of civilization com- merce grew, and in recent times it has reached an enormous extent. It seems to be an appointed means of bringing nations together, and 58 THE POLITICAL RIGHTS OF establishing among them a community of interest. But international commerce cannot be carried on without rules and laws, which each nation must make for itself; but which, when they prevail among civilized nations, acquire, by general and universal usage, the force of laws. There are many such laws ; and each nation must make them for itself, with the modifications or peculiar provisions which its own circumstances and interests require. Our nation could not have made them but for the power thus given to it by the constitu- tion. And it is but reasonable to say that a clause of such vital importance should receive a liberal and favorable construction. This it has received. It has been held to include not traffic merely, or buying and selling, but intercourse between nations, and all the forms and instruments of that intercourse. Thus it includes navigation laws, and all the laws which relate to shipping and the carriage- of passengers and, of cargoes. It has always been conceded that it was within the province of Congress not only to make rules for (which is what " regulate " means) existing commerce, but to build up our commerce, and give us a full share of the commerce of the world. This has been done, and most successfully ; and with little opposition, because there was little diversity among the several States in regard to this matter. It was far otherwise, however, in reference to the next provision of this clause, which relates to the POWER TO EEGT7LATE COMMEECE AMONG THE STATES. Here a distinction has been taken. It has been maintained that power to regulate means only power to make rules for ; while to many measures proposed at different times the objection has been made, that their purpose was not so much to regulate a commerce which then existed, or which might exist of itself, as to make rules the effect of which would be to create commerce. It is impossible to draw a sharp dividing line between these two things. Un- doubtedly regulation is one thing and creation another; but it is not always easy to say where the one ends and the otlier begins. This controversy is not yet over ; and perhaps it will continue in some form for successive generations, as new occasions for reviving it occur. It may be said, however, that the sense of the people has in a great degree settled down to the conclusion that Congress, under the power to regulate commerce, may make proper rules respecting the intercourse of the people of different States, and the means thereof, so far as they relate .to water-ways, to our great lakes, to the whole coasting trade of the ocean or the lakes, and to the manner of carrying on the same. A CITIZEN OF THE UNITED STATES. 59 But, then, we come upon a question to wMch our constitution gives no direct answer, — What is the power of Congress over, or in relation to, instruments of internal domestic commerce, which could not by any possibility have entered into the contemplation of Con- gress; that is to say, What is the power of Congress over EAILEOADS. They have now spread their net-work over the whole country, and are constantly and everywhere growing in extent and in im- portance. If we ask. What is the power of Congress in relation to them, we must answer this question by the construction we put on the clause of the constitution which gives Congress power " to regu- late commerce between the States." For already are these iron ways the instruments of a commerce which rivals, to say the least, the commerce along our water-ways, and has already superseded a more circuitous water-borne commerce in some parts of the country, and threatens, or promises, to do so in others. Some things seem to be settled by usage and precedent. Con- gress can charter railroads, and can help railroads by guaranteeing their bonds, and by grants of the public domain. While there have been objections, sometimes very urgent objections, to these measures, and at this day there are those who hold them to be unconstitu- tional, it must be admitted that the objections were mainly to the improvidence of the guaranty, or loan of credit, and the extrava- gance of the donations of land. These objections have had power enough of late to cause Congress to stay its hand, and will un- doubtedly cause much more careful consideration and a less liberal aid by grant or by guaranty in the future. But we think it practically established, that, within reasonable limits, and a due regard to expe- diency and safety, Congress may exercise these powers with the approval of the people. Indeed, it must be admitted, even by those who are loudest in charging Congress with folly and extravagance, that the railroads thus far built by means of this assistance are of great utility, and that the population which they are causing upon what without them would have been a deserted and inaccessible •wilderness, have added very much to the value of the lands reserved by the government. But can Congress actually build a railroad with the public funds? This most important question is already raised, and must soon be pressed upon Congress and the people. That a thoroughly built and equipped railroad, competent to carry from the far interior to the seaboard the vast produce of those fertile States, — that such a railroad would be of great utility, no one would deny. But, on 60 THE POLITICAL RIGHTS OF the other hand, who will say that it w^ould be of utility enough to justify a disregard of the constitution if that distinctly opposes such projects ? Does it distinctly oppose them ? We cannot but think that the clause which empowers Congress to regulate commerce, whatever was originally intended by it, may fairly be taken as meaning that Congress may provide for, care for, and promote the commerce between States, and the instruments of that commerce. Whether these be canals or railroads, we should say that Congress may construct them, provided always that the only object in con- structing them is to provide for, promote, and facilitate the com- merce between the States. CAN CONGRESS KEGULATB THE FREIGHTS ON BAILEOADS? This question has recently become one of much importance, and of no less difficulty. That Congress may regulate the freights on railroads which it charters, and that it can affix what terms it will on any subsidies or grants it offers to railroads, is certain. The true question is this : What right has it, under its power to regulate the commerce between the States, to interfere with the charges of railroads for carrying produce from one State to another? The importance of the question lies in this. Eailroads have become perfectly indispensable instruments for this internal com- merce. Without them it would have been impossible for our sur- plus produce to have found its way to the seaboard, at a cost which would have permitted merchants in the Atlantic cities to buy it and ship it abroad. Therefore the interior of the country undoubtedly owes its rapid growth in population and wealth to these railroads. But, on the other hand, it is alleged that the railroad companies charge excessive freights ; that they have in many instances " wa- tered " their stock, — that is, they have greatly increased its par value beyond what it actually cost, and then they charge freights which shall pay them satisfactory dividends on this nominal value, thus laying an intolerable burden on the transport of produce. The States which chartered them cannot, or, under the influence of the railroad companies, will not, interfere. Can Congress help the producers, by requiring the companies to carry their produce at a cheaper rate? Certainly not, unless they may do this under the clause giving them power to regulate the commerce between the States. In the first place, this is certainly a commerce between the States. Illinois sends her wheat to New York or Boston, sells it there, and buys goods there manufactured or imported, which are brought to Illinois ; and the price to the consumers is increased by A CITIZEN OF THE UNITED STATES. 61 the high cost of freight. This commerce Congress can "regulate." But does that mean that it can interfere between producers and carriers, and determine what the one shall pay to the other ? There are two objections to this. One is, that this kind of " reg- ulation " would seem to interfere too much with private and personal business. If the merchants of New Yorfs engaged in shipping goods to and from Europe complained that the ship-owners asked such excessive freight that they could no longer export goods to foreign countries, or import them thence, and therefore called on Congress to remedy the wrong, and " regulate " this commerce by compelling the ships to lower their freights. Congress would probably answer, No, we cannot " regulate commerce " in that way. How, then, can they be called on to do the same thing as to our internal commerce ? To this objection this answer might be made : The ocean is the great highway of nations, open and free tp all; and competition is abundantly able to settle the question between shippers and freight- ers in the right way. If freights are so high as to make .the ship- ping business unusually profitable, more ships will be put on, until freights are reduced within reasonable limits. And if they are reduced beyond such limits, ships will be taken off, until they rise again. The mere course of trade, if left in freedom, being sure to adjust these profits, on one side and the other. But it is not so with railroads. They are monopolies; for the immense expendi- ture of money which they require, and the political power they can exert if disposed to, make them monopolies in fact. If left in free- dom to work their pleasure, there is no actual competition sufficient to counteract their power of directing matters solely with a view to their own profit. The power of government must interfere, for the plain reason that nothing else will restrain them. The other objection to asking Congress for this relief is, that it wUl interfere directly with State rights and privileges and interests ; and perhaps violate a provision in the ninth section of the first article, "that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of an- other." It will be exerting a power not expressly given to Congress, and therefore reserved to the States themselves, by a provision in the constitution itself; and this provision should be made effectual, by observing it not in its letter merely, but in its spirit and prin- ciple. Now, railroads are chartered by the States; they are the creatures of the States ; and to the States alone must belong the power of determining what shall be paid to them by those who make use of the facilities they offer. To these objections the answer might be made, that the power to regulate thie commerce between the States is expressly given, and also 62 THE POLITICAL RIGHTS OF the power to make alWaws necessary and proper for carrying into execution all powers given. The railroads are often chartered by different States for the express purpose of making a continuous railroad crossing many States, each State covering its own territory by the charter it gives. It is a very common thing, also, for rail- roads which were independently chartered to combinfe together so as to make in fact, and for some purposes in the view of the law, but one railroad. These long and continuous railroads are more than indispensable instruments of our internal commerce : they are its only instruments. They created it ; they alone carry it on ; and without them much the largest part of it would have no existence, and would not be possible. What doubt can there be that Con- gress may regulate this commerce? Then comes the difficult ques- . tion, — In what way can they regulate it, except by fixing reasonable terms on which it can be carried on? If, as is alleged, injustice and oppression now exist, they cannot, in this country, be patiently or permanently endured. It is better that the remedy should be applied in some orderly, legal, and rational way, — by the States, if they will and can ; by Congress, if the States will not or cannot, — rather than by an uprising of the people, which might give rise to measures that would be neither orderly, legal, nor rational. And as to a preference of the ports of one State over those of another, no man would defend or propose any measure for the sake of such preference. But if some advantage to one over another seemed likely to arise indirectly from a measure adopted for the general benefit, this could not be deemed a decisive objection to it. Such, as well as we can present them in a few words, are these questions, and the arguments which may be urged on either side. How the questions will be finally decided, it is impossible to predict. When this clause was inserted in the constitution, it was undoubtedly intended to prevent a State from laying a tax or excise on the pro- ductions of any other State, or, by other harassing impediments, obstructing the commercial intercourse between them. But whatever was intended, there stands the clause, to be fairly and rationally interpreted. If, in its original intent, it did not embrace circum- stances which could not have been at that time anticipated, it may, nevertheless, have manifested a spirit or established a principle which may be rationally applied to these new circumstances ; and, if so, they should be applied to them. Perhaps the just conclusion is, that while Congress must hesitate before it undertakes to build railroads, or to prescribe the fares and charges on railroads which it did not charter, it may, by encour- aging the building of railroads by wise and timely assistance, by provisions directed against frauds and abuses, and by a system of A CITIZEN OF THE UNITED STATES. 63 prohibitions carefully adjusted to circumstances, exert its power to regulate commerce between the States in no unconstitutional way, and yet do justice to all parties, while it gives to that commerce facilities and safeguards which wUl greatly promote its growth and prosperity. INTEKKAL IMPEOVEMENTS. It may be another difficult question, how far Congress may go in improving our water-ways by removing obstructions, constructing harbors, and by similar measures. But the prevailing tendency of public opinion is towards a liberal construction of the clause in this respect. If we go one step further, and ask whether Congress can create new water-ways, by building canals by which goods may be borne from State to State, and through intermediate States, the answer may be still more difficult. Here local interests may come into full play. Why should a canal be made from funds which belong to the whole nation, when it can benefit only one part, at the cost of all the rest ? One answer is, that by these and simi- lar means, all parts may be benefited in turn. Another and a better answer is, that the gain of any one part of the nation is the gain of the whole ; for the whole can be enriched and strengthened only , as its various parts are, not all at once, but successively, as opportu- nity occurs for each. It is only local selfishness which can refuse to be glad when the people of another region are benefited. It becomes a different question when the objection to a measure is, that it will not promote our internal commerce as a whole, but draw away from one part what it gives to another. It is, however, obvi- ous that all arguments of this kind mainly refer to the expediency of the proposed measure, leaving the question whether Congress has the right to pass it, aside. So it may be ; but unfortunately, while human nature remains what it is now, those who look upon a measure as expedient, especially if it be expedient for them, will favor the most liberal construction which brings it within the power of Congress; while those whom it hurts will be sure that a just construction of the constitution would prevent it. It may be said, however, on the whole, that with the prodigious growth of the country and of all its various interests, and the springing into existence of new interests never dreamed of when the constitution was made and adopted, the conviction has forced itself upon the people that, while a loose and unwarranted construction, which would pervert the meaning of words and in'vaUdate the limitations of the constitution must be avoided, a rational but liberal construc- tion should be adopted. 64 THE POLITICAL RIGHTS OF SECTION X. TAXES. The first words of the eighth section of the first article of the constitution, which section enumerates the powers of Congress, are : " To lay and collect taxes, duties, imports, and excises." This means that Congress may lay all manner of taxes. The most general division of taxes is into direct taxes, and indirect taxes. A direct tax is taken immediately from income or property. It includes a capitation tax, or, as it is more commonly called, a poll- tax, and an income tax. An indirect tax makes the owners of the articles on which it is laid, pay the tax, without reference to any thing but the value or quantity of the article. When these taxes are laid on exported or imported goods, they are called duties, or customs-duties ; and are regulated by a tariff. An indirect tax may also be laid upon those who exercise certain trades or occupa- tions, and it is then called a license. If it is laid upon certain wares or products, as tobacco, spirits^ beer, and the like, it is an excise. AU these taxes Congress may lay, and at different times have laid. Certain general principles have been deduced from the long ami wide experience of nations, as those which should govern aU taxation. They may be stated thus, on high authority. 1. The subjects or citizens of every State ought to contribute towards the support of the government, as nearly as possible in proportion to their respective abilities. i. The tax which each individual is bound to pay, ought to be certain and not arbitrary. The amount, the time, and the manner of payment, ought all to be clear and certain to the contributor and to everybody. 3. Every tax ought to be levied at the time and in the manner in which it is most likely to be convenient for the contributor. The second section of the first article provides that " represent- atives and direct taxes shall be apportioned among the several States according to their respective numbers, which shall be deter- mined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all otlur persons" " All other persons " meant slaves, a word nowhere appearing in the constitution. This provision was perhaps as wise and fair a compromise of existing views and claims, as could then be made. To say that- they were persons as much as other persons, would have required that they should all be counted in among those to be represented. This- was A CITIZEN OF THE VNItUD STATES. 65 not fair, as they did not vote, and such a rule -w^ould have added to the political powers of the ■whites, merely because men who could not vote were mingled with them. But if they Were not counted at all, this seemed unfair, because after all they wefe persons as well as property. So the Compromise was made. The States which had few or no slaves being contented that the States which had many slaves should have more than the share of political power which belonged to their number of voters, bedause an equal excess of taxation was cast upon them. The reason that bargain was satisfactory to the non-slaveholding States was, that at that time it was believed that the revenue of the country would mainly, if not wholly, arise from direct taxes. 'This was an enormous mistakci But it would be unreasonable to charge the men of that day with lack of wisdom, because they did not anticipate the growth of our commerce and of our national resources. Congress has, at different times, and in great emergencies, as in War, imposed direct taxes. But it took them off as soon as possible ; and nearly all the national- revenue has been and is now raised by indirect taxes, and princi- pally customs duties. In laying these duties the great question has been, is now, and is likely to be for ages to come. Shall these duties be laid for reve- nue, or for the protection and promotion of "domestic manufactures ? That the duties may be laid for protection is nowhere expressly enacted in the constitution ; but the whole clause respecting duties is this : " to lay and collect taxes, duties, imposts, and excises, t(y pay the debts and provide for the common defence and general Welfare of the United States." It has been very much disputed ais to what is the effect of the last part of this clause. What may be termed a simple and common-sense view of this question would be, that this power to impose taxes is given for the purpose of paying the debts of the nation and also providing for its general welfare. Instructive evidence as to how it was understood at or very near the time of the adoption of the constitution, may be found in the preamble of the second act passed by Congress, which was enacted in 1789. It runs thus : " Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the enoouragement and protection of ryianufactufes, that duties be laid on goods, wares, and merchandise imported, — Be it enacted," &G. It would seem too late to lay much stress upon the question whether Congress, in laying duties, could pay whatever it deemed a due regard to the encouragement of domestic manufactures. Whether they should do so, and what this due regard would be, must be argued on expediency and equal justice to all the parts and dl the interests of the country. 6 66 THE POLITICAL RIGHTS OF The main arguments of those who ohject to any special regard to protection, may be said to be these. Manufactures must to a considerable extent be localized ; in one region cotton goods will be made ; in another manufactures of iron will prevail. Climate, cost and supply of labor, natural facilities of various kinds, will operate; and the necessary effect will be that the people of one region will be the principal manufacturers of one or another kind of goods, while the people of another region are mainly employed in manu- facturing some other kind of goods, or in producing food, or articles for export. Hence any laws which operate exclusively in favor of a certain class of manufacturers are partial, and therefore unjust. Moreover, taking the whole country together, such laws necessarily produce a loss instead of a gain. Any interference with the natural course , of trade or business of any kind must be mischievous, for the plain reason that this natural course of " let alone " is sure to result in the people of every region, and, indeed, of every country, engaging themselves in the work which, upon the whole, they can do best ; and this work will be at once most profitable for them, and most useful to all. If the labor or enterprise of any part of the people is diverted from this natural course, the large gains made by a few will seem to indicate a general prosperity ; while, in fact, these gains will be made at an exactly equal loss, divided among a far greater number. For example, a plough, or so many axes or shovels, made in England, where labor is very cheap, may be bought there, and, if there be no duty, imported and sold here for, we will suppose, five dollars. They cannot be made and sold here, where labor is dear, for less than six dollars. Let a duty of forty per cent- be laid, and the English goods, which would cost here five dollars, will now cost forty per cent, or two dollars, more, which will bring them, to seven dollars. But the manufacturers can make them and sell them for six dollars. If they sell them for that price, or even for six and a half dollars, the importation must cease, and the manufaoturera make great profits, and all the people in the land who use ploughs, axes, or shovels must pay this extra dollar or two, and a part of it goes to make up the profit of the manufacturer. The same reasoning applies to the manufacture of articles of clothing, or other goods of general use, if the importation of cheaper goods is prevented or checked, and dear goods made at home substituted for cheaper goods made abroad. The answer to all this, made by those who are in favor of pro- tection to domestic industry, is substantially this. The doctrine of free trade and free manufactures might work well for all if all nations practised it. But, in fact, other nations do not. There is not a A CITIZEN OF THE UNITED STATES. 67 country in Christendom that has not laid more or less restriction upon traffic, for the encouragement of its own productions ; and we must do the like, in self-defence, if we would not fall behind other countries. Moreover, there is a fallacy in supposing that a duty upon manufactured goods always increases the price of them in pro- portion. At the beginning it may have much effect in that direc- tion. But soon there comes competition. Ingenuity is taxed to impi'ove machinery and overcome the advantage they have abroad in cheap labor ; and hence it is that all our manufacturing machines and processes are in a condition of continual improvement. Large amounts of capital are thrown into the business, so as to secure the advantage of buying materials when and where they are cheapest, and of making them up at the least possible cost. The effect of all this is, that prices, instead of being advanced, are, it is said, lessened, and manufactured goods of general necessity and use are bought in this country for less than they cost before duties were laid on them. Not only so, but we are able to export largely at a fair profit ; and what proves that we have taken our place as a manufacturing nation, and can manufacture our goods as cheaply as other nations, is, that we send our manufactures, especially of cotton and iron, to foreign markets, and can sell these goods for a less price than even English goods of the same quality are sold for. Moreover, immense amounts of labor are employed, at good wages; and those who are thus withdrawn from the general labor market make its value greater everywhere, and the whole labor of the country is better paid. lyiost of all, and as the greatest advantage of all, an immense home market is opened for home produce. If the great army of workei'S now employed in manufactures were added to those now employed in agriculture, there would be a great over-production of farm and field produce, and the glut in the home market would, on the one hand, lessen the production of meat and bread, and, on the other hand, would send the surplus abroad at low prices ; that is to say, the loss of our home market would make farming far less profit- able, and would arrest the rapid growth of our interior. Because it is the protection heretofore given to manufacturing industry that has caused the universal prosperity of the country, by supplying all who produce food with clothing and other necessaries at fair prices, while it secures to them fair prices for the food they produce. Such are the arguments on the one side and the other. Perhaps there is now a very general assent to what may be regarded as a fair compromise between these extremes. It is, that all duties on im- ported goods should be laid, in the first place, for revenue, and should never be greater than the revenue requires. But, in the second place, they should be adjusted (so far as revenue purposes 68 TME POLITICAL RIGHTS OF peimit) in such a way as to give the greatest encouragement and ^^istance to domestic industries, the great difficulty still being, and likely to be hereafter, in making this adjustment; the free-trade party wishing it made so as to obstruct commerce in favor of home, manufacture as little as possible, and the protectionists asking that enough regard should be paid to domestic manufacture to prevent the destruction of existing industries, and to continue in force % system which has, in their judgment, immensely promoted our national prosperity. We have seen, by a reference to the second act which Congress ever passed, that at the beginning of our government there was a disposition to encourage domestic manufactures. It may be said that this has, on the whole, prevailed to the present day, although with much fluctuation; the principles of free trade being at one time prevalent, and then those of protection coming into the ascend- ant. As the subject is of great importance and of universal interest, we give our readers a brief statement, gathered from the latest sources of information, of the present condition of our principal industries: — Iron. — The greatest industry of all is that of iron, which has reached, ipimense proportions, especially in Pennsylvania, Ohio, New York, and Michigan. There are iron establishments in every State of the Union, with the solitary exception of Florida, and in every territory except Utah. About $200,000,000 of capital are employed, and the products reach $325,000,000. The manufacture of iron gives work to 140,000 hands. Pennsylvania is altogether at the head in this industry, her factories numbering very nearly 1,000, and her products being not far frorOr $122,000,000. But the most wonderful feature of iron manufacture is its spread westward. Michigan, Indiana, Illinois, and Ohio have between them about 860 establishments ; while in the Far West — in Minnesota, Iowa, Wis- consin, and even in California and Nevada — they are becoming numerous, and important. The progress of iron manufacture during the past twenty years may be estimated by the fact that while in 1870 the factories num- bered 3,70 ), and had a capital of $200,000,000, in 1850 there were only 2,364, with a capital of about $46,000,000. Cotton Goods. — Of cotton factories there are 819, distributed through a large number of States, but mainly in Massachusetts, Pennsylvania, and Rhode Island (which small State has no less than 140), with an aggregata capital of $133,000,000, a force of 130,000 hands, and products of the value of $168,000,000 yearly. These are exclusive of manufactories of cotton^ batting and wadding, of which there are 27, with a capital of $276,000, and of cotton thread, twine, and yarns, of which there are 123, with a capital of $7,400,000, and an annual product of $8,700,000. It is worthy of remark that within the past twenty years cotton mills have spread with considej-able rapidity through the South, and ai'e to be found not only in A CITIZEN OF THE UNITED STATES. 69 the upper tier of those States, — North Carolina, Virginia, Tennessee, — but even in Alabama, -where there are ten; Geotgia, where there are twenty- five; Louisiana, and Texas. It is highly probable that cotton manufactures are destined to multiply in the South, on the very field where the raw taaterial is grown, — a promise which opens new prospects of prosperity for that section, and of cheaper goods for the whole country. Woollen Goods. — There are in this country nearly 2,000 woollen factories, principally in the States of Pennsylvania, Massachusetts, New York, Ohio, Indiana, and Connecticut, with an aggregate capital of nearly ftlOO,000,000, employing 77,000 hands, and producing $150,000,000 worth Of goods. These factories do not include wool-carding and cloth-di'essiug establishments, of which there are about 1,000. Worsted Goods. — This industry has almost wholly grown up within the past thirteen years. In 1860 there were but three worsted factories in the country, two of which were in Massachusetts, and one in New Hamp- shire; in 1870 there were over one hundred, Pennsylvania having thirty- One, Rhode Island eleven, and Massachusetts thirty-five; and the aggregate capital employed being some $10,000,000, giving a product of more than $22,000,000 annually. Carpets. — In the manufacture of carpets there are 250 factories, with $13,000,000 of capital, and $22,000,000 of annual production, — Pennsyl- vania almost monopolizing this industry, as she has nearly 200 of these factories, and produces about $10,000,000 annually. Silk Goods. — There are 90 silk factories in the United States, em- ploying about 7,000 hands, with a capital of $6,500,000, and an annual product of more than $12,000,000. This includes silk goods, ribbons, machine and spool silk, and silk thread. New Jersey is the leading State in this industry, having thirty factories to twenty-three in Connecticut, fourteen in New York, and ten in Pennsylvania. CuTLKRY Goods. — As yet there are only about 182 cutlery establish- ments, with an aggregate capital of $4,000,000, and an annual production of $5,500,000. But this industry has perceptibly grown, and is still grow- ing, — Connecticut, New York, and Pennsylvania, being the leading States in this enterprise. There are but four cutlery establishments in the South, three of which are in Missouri, and one in Louisiana. Boots and Shoes. — This manufacture is one of the very largest and most important in the country, there being more than 3,ff00 factories, of which more than 1,000 are centred in Massachusetts, the next highest State being New York, with something over 300. In this manufacture about $40,000,000 of capital are employed, with a product of not far from $150,000,000. The West is looking up in this industry, for there is a large number of factories in successful operation in Missouri, Wisconsin, IlUnois, and Iowa. At least 100,000 hands are employed in the making of boots and shoes. 70 THE POLITICAL RIGHTS OF Wine. — One of the most interesting of comparatively recent industries is the growth of grapes and the manufacture of wine. Some of the Ohio, Missouri, Virginia, and Californian valleys are found to be well adapted to the growth of vineyards; and there are now over 400 wine-making estab- lishments in the country, producing champagnes, hocks, ports, sherries, and sweet dessert wines. Of these Missouri has about 200, employing a capital of $700,000, -and producing about. $1,000,000 annually; California has 150; Ohio, 40; New York, 10; and Illinois, 5. The total of the various kinds produced is about $2,500,000. Malt Liquoks. — These are made in something over 2,000 breweries, which are spread completely over the territory of the Union; the largest number being in New York, Pennsylvania, Ohio, Wisconsin, Michigan, HUnois, Iowa, Indiana, and Missouri, — States, let it be observed, where the German element of the population is most thickly gathered. Agricultural Implements. — The capital employed in the manu- facture of agricultural implements has increased, in twenty years, from $8,500,000 to $35,000,000, and the products from $7,000,000 to $52,000,000. Since 1860 this industry has somewhat more than doubled. Increase or Manufactures. — The value of manufactures — in which are included fisheries, quarrying, and mining — increased in the ten years between 1860 and 1870, 108 per cent, this estimate being the actual in- crease, after deducting the enhancement of prices by the issue of paper currency. The nominal increase was from nearly $2,000,000,000 in 1860 to $4,002,000,000 in 1870. That is to say, that the United States produced over twice as much manufactured goods, in money value, five years after the close of the war as they did in the year before the war broke out. The total number of manufacturing establishments in the country, which in 1860 were 140,483, were, in 1870, 252,148. The States which rank highest as manufacturing centres are in the following order : Pennsylvania, which has 37,200; New York, which has 36,206; Ohio, which has 22,773; Massa- chusetts, which has 13,212; Illinois, which has 12,597; Indiana, which has 11,847; Missouri, which has 11,871; and Michigan, which has 9,455. The industrial empire will be seen to be taking its way westward. And this is a comparatively recent movement; for while Massachusetts, twenty years ago, had about 9,000 establishments, Illinois, which has now nearly caught up with her (as above), only had 3,000; Indiana, only 4,000; and Michigan, only 2,000. In twenty years Michigan has increased her manu- factories fivefold, Illinois more than fourfold, and Missouri fivefold, while Massachusetts has only increased hers one-third. A CITIZEN OF TBE UNITED STATES. 71" SECTION XI. ON THE JtJDICIART. In preceding chapters we have considered the execntive power and the legislative power. We have now to treat -of the judicial power. Our national constitution is, as has been said, a new thing upon the earth, in many respects; in no one more imi)ortant or more remarkable than in the distinction it makes between the three great essential powers of all government. It clearly defines each of them. It separates one from the other, making them independent of each other, and yet estabUshing between them an indissoluble connection by unity of service and accordance of action, so that they work together, each in its own waj^, but all concurring in the preservation of our national rights and national existence, and of the personal and property rights of every individual in the nation. One body carries the law into eflfect ; another body niakes it ; a third body determines what is law, and construes and applies the law, and keeps the other two from wandering outside the path of power and of duty assigned to them. This distinction between the executive, the legislative, and the judicial functions, grew up in England, in some slight degree, but from no definite design. Our fathers recognized it, and carefully provided for it, as the surest safeguard of political rights ; for the obvious reason that .if the executive can make what laws he will, or construe and apply them as he will, there is an obvious despot- ism ; and if any. other body in the States. can unite these functions, that body becomes a despotic executive. Of these bodies, nothing is now more universally admitted than that it is the function of the judiciary to judge and decide whether a law be constitutional, and in that case valid, or unconstitutional, and therefore of no force whatever ; and that it is not merely their certain right, but as cer- tainly their duty, to do so, when the question is properly before them. This fanction of the judicial power was wholly unknown before ; for how could a judiciary be charged with the construction and preservation of a constitution, before such a thing as a written constitution existed ? No wonder that our fathers scarcely knew how great a thing they had done in taking this step. No wonder that our judicial bodies themselves did not, in the first years of our national existence, know certainly that this important power was entrusted to them, or see clearly their duty in relation to it. To prove this, let me say that in 1792 a pension law was passed, 72 THE POLITICAL RIGHTS OF requiring the judges of the Circuit Courts of the United States to carry the same into effect. The question soon came before many of these courts, whether this act was constitutional ; and they all decided at once that it was unconstitutional, because it imposed upon judges duties which certainly were not judicial. But the judges for the district of New York, — Jay, Cushing, and Dnane, < — while clear that the law was unconstitutional, held that " from their desire to manifest their high respect for the national legis- lature," they would consider that the law had only appointed as commissioners the persons who happened then to be judges, inad- vertently describing them by their official names instead of their personal names; and accordingly they undertook the duties of commissioners. The court for the district of Pennsylvania (Wilson, Blair, and Peters), and that for North Carolina (Iredell and Sit- greaves), went so much further as to refuse to proceed under the act ; but each court wrote a long letter to the President, apologizing, almost humbly, for their decision, the Pennsylvania court calling it " a painful occasion," and the North Carolina court speaking of the "lameptable difference of opinion." And so things went on until 1803, when, in Marbury's case, so called. Chief Justice Marshall con- sidered the question in all its bearings ; and, with a force and clear- ness which I cannot characterize otherwise than by calling them most admirable, settled the question, as I hope, for all time. What he considered this power of the judicial body can best be told in his own emphatic conclusion : " This is of the very essence of judicial duty." Very far are we, however, from understanding now the exact limitations of judicial duty in this respect ; or, in general, the nature and force of what Jeremy Bentham called "judge-made law." It may well be hoped that as the nation grows older it will grow wiser, and that some questions will hereafter be settled to which no certain answer can now be made. But already, I think, there are three rules on this subject which may be considered as established- One, that the court cannot judicially inquire into any law, unless it be directly involved in some case properly brought before them by the parties in interest. (I have nothing to say here of instances in which a State constitution authorizes the executive or legislature to ask the opinion of the judges.) Secondly, if they consider any law or rule or principle, which is not so involved in the case before them that their consideration of it is necessary for their judgment, they go just so far beyond their judicial duty, aud can utter no word of judicial power. They may make essays, or utter apothegms of much interest and value as the sayings of wise men ; but what they say is not jticUdal smy A CITIZEN OF THE UNITED STATES. ' 73 further than it is distinctly involved in their judgment, and there- fore it is not authoritative. It may be a saying (dictum), but it is not a decision. Thirdly, whatever IJtey adjudge and determine within these limits may be reversed or qualified by the same judges or their successors, or by the legislature if the constitution permits, but, until so reversed or qualified, it has the force of law. Not only from remarks made where we might expect party feel- ings would obscure judgment, but from words sometimes uttered in high places, we have too much reason to fear that the great duty of the judiciary as the expounder and defender of the constitution is not so clearly seen, or so unreservedly acknowledged, as from its vast importance it ought to be. Our government is established and determined by the constitu- tion. This the people made, in the exercise of their sovereign will. And the one certain thing about it is, that it is a government of limited powers. Not only is the whole government limited, but every department of it is limited within clearly defined boundaries. It is absurd to say that the constitution can remain in force, or the government continue to be what the constitution makes it, if any one of its departments may at its own pleasure transcend the limits imposed upon it. The constitution is the law of the law. If Congress pass a bill of attainder, under which a citizen may be deprived of life or prop- erty without trial ; or, if Congress pass a law that on a trial for treason the defendant may be convicted on the evidence of one witness when the constitution requires two, — how can the accused obtain relief, or, what is far moi-e important, how can the constitu- tion itself obtain relief and an adequate defence against this inva- sion, except by the interference of that body whose function it is to construe and apply all law. That body, the judiciary, will look to the constitution for direction what to do. They read there that Congress has not the power to pass a bill of attainder. Must they not say at once that this bill of attainder was not passed by compe- tent authority, and therefore is not law ? The judiciary must have, can have, no guide but the law. But the constitution is the supreme law of the land ; it is the law of the law. By the very terms of their constitution (sixth article), the people declare that the constitution Ib the supreme law, and then laws made in pursuance of the con- stitution are valid. Only these laws are laws. The judiciary have no more right to regard as a law one not made in pursuance of the constitution, than they would have to regard as law an order sent to them by the President, or by the general in command of the army. And who 74 - THE POLITICAL RIGHTS OF are to determine whether the supposed laws he made in pursuance of the constitution? Certainly not the President; for, if we give him this power, he becomes an irresponsible despot. Certainly not Congress ; for it is they who made the law. Obviously it must be the judiciai-y; for there is no other body which can do it for them: and to construe a law, and apply it to the case before them, is pre- cisely what they were appointed to do. And how can it be said that it is their business to examine into a law, and declare its mean- ing and force, but they must not examine into the question whether it be a law at all ? Wisely has the constitution deposited this power in the hands of the judiciary. First, because this power cannot make them despotic or tyrannical, inasmuch as they have no power to make law, or to execute law. Their power in this matter is only negative. They can say that such a law is a law only in form and appearance ; but is not a law in fact and in force. But they cannot say. That law which Congress made is not a law ; but this is law which we make, instead of the law that Congress made. They cannot make void that law because they do not like it ; they can only say that it is void, be- cause not made in pursuance of the constitution. Secondly, because the judiciary consists of a body of men selected for their knowledge of law, trained to understand the law, and sep- arated from all other business in life that they might devote them- selves to this one work without a divided mind, and undisturbed by other pursuits and interests. For so, at least, they ought to be selected, and ought to live. It was said at Washington, on a recent interesting and exciting occasion, " Why should Congress yield such deference to the opinion of those men, sitting as a court? There are amongst us, and in either House, as good lawyers as sit upon that bench. Why may not they be trusted ? " But all the members of Congi-ess are not lawyers ; and it is well they are not, for all interests and all modes and forms of opinion and judgment should be represented there, and have due influence there. And all the lawyers there are not sound and learned lawyers, for they were not selected by any such' standard, or for such reasons exclusively. But the justices of the Supreme Court were so selected ; on no other grounds in theory, and on these grounds mainly in practice. And being so selected, constantly busied in the work of expounding and applying law, sequestered mainly, if not altogether, from other pursuits, and unable to forget, even if they would, the great duties which are always before them, how can it be doubted that we have here a body of men, so selected, organized, and employed as to develop to the utmost their fitness fpr the great duty of expounding, protecting, and pre- A CITIZEN OF THE UNITED STATES. 75 serving the constitution ; and secured, as far as men can be, from the influences most likely to distract and impair their discharge of that duty? Therefore it is that the constitution most wisely makes the judi- ciary independent. In all other governments the judicial power is but a part of the exercise of the executive power. Once, the king sat in the gate of his court-yard, and administered justice to all who came. That was a long time ago. But at this day the per- sonal sovereign, wherever there is one, appoints the judges ; and they are his ministers, and he does justice through th'em. Here, our sover- eign, the people, through their servants, selects them, and then they are amenable to the people alone; being just as independent of the executive and legislative bodies, as these bodies are of the judiciary. Our constitution, and our system of government under the con- stitution, may be compared to an arch, so skilfully, so well adjusted in all its parts, that it is idle to call one of its membei's more essential to its existence and its strength than another. But if to any of the stones which compose it we would give the name of Keystone, we must give it to the judiciary. Whatever strengthens that stone strengthens the whole ; whatever weakens it weakens the whole ; take it away, and the whole would fall into ruin. There are but two ways which we can think of by which its functions could be made still more useful, and by which it could be still better protected from harmful influences. One would be this: to introduce a principle known to some of the States, — in Massa- .chusetts, for example, it has worked excellently, — by which the President, or either body of Congress, might call for the judgment of the court upon the constitutionality of any proposed measure. Instances have already occurred in our history in which such a practice might have been eminently useful. The other is this. Provide, by an amendment of the constitu- tion, if that be necessary, that a person appointed a justice of the Supreme Court, and accepting that oflice, should be thereafter un- able to hold any other office in that court or elsewhere, either by the appointment of the executive or by an election of the people. Already there is assigned to that office a competent salary and a retiiing pension, which may relieve the holder from pecuniary anxiety. Let them be increased, if need be, that the emolument may co-operate with the honor of the place to call the ablest men in the country into the service of the country. Then let the rule above stated be established, and the strongest, perhaps the last, temptation to yield to the corrupting influence of political ambi- tion would be taken away. 76 THE POLITICAL RIGHTS OF SECTION XII. OP IMPEACHMENT. Before treating of Congress, as composed of the two Honses act- ing concurrentl}', the subject of impeachment may be considered; for in this both Houses act indeed, but in totally difFei-ent ways. The House of Representatives alone has the power of impeach- ment. Acting as the grand inquest of the nation, it finds articles of impeachment, which are substantially an indictment; and, by a com- mittee, presents them to the Senate, which alone can try the case. The whole system is imitated, and on some important points closely imitated, from the practice of England.. The framers of the constitution found it a very difficult matter to deal with aright. They were much divided in opinion about it ; and all knew that any system they could adopt would be open to objections ; and they finally concluded on copying the English practice, so far as this ap- proved itself to their judgment, as on the whole adapted to the purpose. Many preferred that the Supreme Judicial Court should try such cases. But to this it was objected that one or more of their own number might be the subject of impeachment, and that all of them had been appointed by a President, and some of them, perhaps, by the President who was himself impeached. Then, great difficulties were found in giving this function to a special court created for the purpose. And, on the whole, the Senate was selected. Experience has thus far confirmed the wisdom of the choice. The Chief Justice of the Supreme Court presides. The articles are presented and the trial conducted on the part of the House by managers chosen from among the members. The accused is defended by counsel ; and the trial proceeds and evidence is offered on the one side and the other, according to the rules of the common law and the practice of courts and parliamentary usage. At the close of the evidence and arguments, each senator is called upon to say whether the defendant " is guilty or not guilty of a high crime and misde- meanor, as charged in the first article of impeachment. " And the same question is put to each senator as to each article. Two-thirds of the Senate must answer that he is guilty upon some one or other of the articles, or the defendant is entitled to an acquittal. If he is convicted upon all or upon any one or more of the articles, the Senate then proceeds to declare the proper punishment. There are two clauses in the constitution which relate to the punishment, of one found guilty under an impeachment. One provides that the A CITIZEN OF THE UNITED STATES. 77 guilty party « shall be removed from office." The other provides that the judgment " shall not extend further than a removal from office, and a disqualification to hold any office of honor, trust, or profit under the United States." The settled construction of these clauses appears to be that the guilty party muM be removed from office, and may be disqualified from holding ofBce in future, if the Senate in its discretion thinks proper to inflict this additional punishment. The constitution both wisely and mercifully affixes these limits to this judgment. In England, political oflPenders, when impeached by the commons and found guilty by the Lords, have been senteilced to death by them. But the framers of the eon- stitution regarded impeachment as mainly, if not altogether, a method of securing the community against the continuance in office, or the return to office, of bad men. Hence the clause in the constitution whicli limits the punishment to be inflicted by the Senate closes with this provision : " But the party convicted shall nevertheless be liable and subject to indict- ment, trial, judgment, and punishment, according to law." ThuSj ' if a President were impeached for treason, found guilty, and removed from office, he might afterwards be indicted in a court of law, capi- tally convicted, and put to death. WHO MAT BE IMPEACHED. Some question has been made of this. The fourth section of the second article says : " The President, Vice-President, and all civil officers of the United States, shall," &c. Not all other civil officers, but all civil officers. The best construction, and that generally ad- mitted, is, all officers of the United States appointed under the national government, whether executive or judicial, and in high or low office, are subject to impeachment. The only apparent excep- tion to this is in the case of the Senate. It seems to be settled that no senator is subject to impeachment. Various reasons are given for this. It is enough to say that the Senate might expel a member by a two-thirds vote, and could do no more if impeached and found guilty, except to add, if they saw fit, the further punishment of dis- qualification for office. It has been said, but not determined, that, by a similar exception, a member of the House of Representatives cannot be impeached. This exception may rest on the power of expulsion which the House possesses, and also, both in respect to the Senate and the House, on the distinction that they are not " civil officers of the United States," inasmuch as they hold office from the people of the States, and not from or under the national government. 78 THE POLITICAL RIGHTS OF FOE WHAT OFFENCES AN OFFICEE MAT BE IMPEACHED. The constitution says : " treason, bribery, or other high crimes and misdemeanors." This phrase, " high crimes and misdemeanors," is a technical legal phrase, and maybe said to be sufficiently defined by the common law. Congress might undoubtedly define it by law, but has never done so. An impeachment by the House, and a recep- tion and trial of the impeachment by the Senate, would be, in another form, a declaration of the views of Congress in that particular case, and might have the force of a precedent, but not of a law. The offence charged must be not an offence only, 'but a high crime and misdemeanor. What this is must be left for the House as accusers, and the Senate as triers, to determine. If they make a mistake, there seems no way to rectify it ; for the case of impeach- ment is expressly excepted from the President's power of pardon. It cannot be doubted that the purpose of this great and exceptional power was to remove bad men from important offices, where they • might do much harm. And there is little reason to fear that it will be prostituted to punish lesser or meaner wrong-doing. SECTION XIII. THE WAR POWER. Congress has power " to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." The power to declare war obviously belongs of necessity to national sovereignty. There was much discussion among the fram- ers of the constitution as to where this power should be lodged. In monarchical nations it belongs to the monarch alone ; and there were some who thought the President with the Senate should have the power. But it was wisely concluded to give that power only to Congress. Congress may declare war generally, as it did in 1812, when it was enacted, in the manner in which all laws are passed, that " war be and hereby is declared to exist between the United Kingdom of Great Britain and the dependencies thereof, and the United States of America and their territories." But Congress may also declare what may be called a qualified, partial, or imperfect war, as it did in the year 1798 with the kingdom of France ; and divers laws were enacted concerning the same. The issuing of letters of marque means the giving authority to parties injured by a foreign nation to seize the property or the per- A CITIZEN OF THE UNITED STATES. 79 sons of subjects of the State which did the injury, until satisfaction be received. Such authority was foiTnerly given to the owners of private ships who had sustained injury from a foreign nation ; and it authorized them to take prizes by way of indemnity. These were called special letters of marque and reprisal. Now, however, letters of marque issue only in time of war. They are a commis- sion from the President to owners of private ships to make what prizes they can, and where they can. This business of privateerings is now carried on by all nations in time of war. But of late years there have been many strong efforts to abolish it* and' to put private property on the sea on the same footing with private property on land, which the law of nations protects from destruction or inj ury, and especially from capture, unless these are necessary for purposes of war. Hitherto these efforts have been ineffectual; but it may be hoped that in time, as nations grow more civilized and international law becomes wiser and more hu- mane, these efforts will be successful. As Congress may declare war, so it has power " to raise and support armies ; " but to this power is added a provision, which is a most important check upon the abuse of this power : " but no appro- priation of money to that use shall be for a longer term than two years." Under the general authority given to Congress to pass laws nec- essary and proper for carrying the provisions of the constitution into effect, Congress has passed many laws regulating prizes, and other matters of like kind. In general, a captured vessel must be brought into* one of our own ports, and proceed.ings commenced before a court of competent jurisdiction, which is neai-ly always a Court of Admiralty. If the vessel is adjudged to have been unlaw- ftilly captured, she is surrendered to her owners. If lawfully cap- tured, she is declared to be jmd is condemned as a prize. Ship and cargo are then sold, and the money divided among the captors as the laws of Congress direct. ARTICLES OP WAE. These are statutes passed from time to time by Congress regu- lating with considerable minuteness all military affairs. Every offi- cer in the army is required to -subscribe to them before he enters upon his duties ; this subscription signifying not only an acknowl- edgment of notice, but a promise to obey them. These articles are more than a hundred in number. They pro- hibit embezzlement of public property, cowardice before the enemy; drunkenness, oaths, and profanity ; offering violence or disrespect in 80 TEE POLITICAL RIGHTS OF any way to a, superior oflBcer, absence from parade, aiding the enemy or corresponding with him, making known watchwords, duelling, and improper behavior at public worship, and sundry other oifences against military good conduct. They provide rules for enlistment, discharging and granting furloughs to the men ; for courts-martial, and for the disposal of the property of deceased soldiers ; and they presciibe the punishments for various offences. The articles of war must be read publicly at least once in every six months to every regiment and troop in the army. MILITAET ACADBMT. In 1802 an act of Congress founded this academy, and placed it at West Point, on the western side of the Hudson River, about fifty milps from the city of New York. Begun on a small scale,, and for some years lingering in comparative obscurity, after a while it attracted the attention of the people and of Congress, and has gradually grown into one of the. very best organized and most eflScient of the education.il institutions of the country. For its own particular purpose, which is the training of young men to become officers in the army, it has, of course, no competitor in this country. It has proved its usefulness in this respect by the excellent officers whom it has educated. But the education which it gives is com- plete and thorough ; and many of its graduates have left the mili- tary service, and become eminent and useful in various occupations in civil life. Every State is entitled to send as many students as it has sena- tors and representatives in Congress, and every Territory, and the District of Columbia, may send one. Usually the representatives nominate the students, and the President appoints them. Of late a custom has been introduced, whereby a representative, when his turn to nominate comes, calls together a boai'd of competent exam- iners, and submits all who offer themselves as candidates to a com- petitive examination, and gives to the President the name of him who is most approved by the board. There may be exceptional cases, where the representative would do well to nominate without reference to such a board. But the custom is a good one, and it may be hoped that it will become universal. In addition to those appointed from the congressional districts, the President appoints ten at large, or from where he will. THE NAVAL ACADEMY Is now established in Annapolis, in Maryland. Its purpose is to educate students to become officers in the navy. The education A CITIZEN OF THE UNtTED STATES. 81 of the pupils is thorough, but of course is especially directed to accomplish the special purpose of the school. Still this school, like the army school, has sent out iiito civil life men who have distin- guished themselves in various ways. The appointment to stud^ents in this academy is, like that of the military school, founded mainly on the congressional districts. The students in both of these schools are entirely snp|iorted by the government. The examinations are frequent, and, without being too severe, are real ; and no one can graduate without industry and fidelity to duty. 'Still, the number of students in both schools is usually in excess of the demands of the army and navy; and hence it is that the benefits of the excellent education they give are not confined to them, but are difiused through the country, ■VTAES OF THIS COTOTET. The war df Independence cannot be called a war of this nation, but rather a war by which we became a nation. Beginning with the first blood shed, on the 19th of April, 1775, it continued eight years, when it was terminated by the cessation of hostilities, pro- claimed 19th of April, 1783, and the treaty of peace and indepen- dence, signed the 3d of September following. We may call the difficulty with France, which occurred some twelve or fifteen years after our peace with England, an imperfect war. France counted too much on our sj^mpathy and active support in her contest with England. She had helped us, and wanted us to help her ; and there were So many in this country who desired to gratify the wishes of France, that it required the whole influence of Washington, aided by our wisest and strongest men, to avert a war With England. Then France was angry, and assumed an oflfensive, not to say hostile, attitude ; and now it needed all that our best and wisest men could do to prevent a war with that country. France authorized the capture of American vessels under certain circum- stances ; we, in return, authorized the capture of French vessels, and there were some conflicts on the ocean. But finally the war-cloud was dispersed, and war was averted. THE SECOND WAE. This, again, might seem hardly to deserve so large a name. But Tripoli, Morocco, and Algiers claimed the right of exacting tribute fi-om all who navigated the Mediterranean Sea. Other nations Submitted to it. Our government would not. They took some of our merchant ships, and imprisoned the seamen. In 1801 the Pacha 6 82 THE POLITICAL RIGBTS OF of Tripoli declared war against us. We sent a navy into the Med- iterranean, under command of Commodore Preble, and succeeded in putting a stop to these piracies, so far, at least, as concerned us. THE THIBD WAE. This was a war with Eng^land. Many causes of mutual oflfence and hostility had been operating upon both nations for some years. At length, in 1812, war was declared. The immediate and ostensible cause was a claim on the part of the British govern- ment to stop our ships, whether private or public, board and search them, and take out seamen who had deserted from their vessels, and, being subjects of the British government, had emigrated to this country. This claim that government enforced in many instances, some of which were attended with peculiarly oflfensive circum- stances. Our government denied this right, claiming that our flag protected those who sailed under it. So we went to war, which lasted until the 24th of December, 1814, when a treaty of peace was signed at Ghent, in Germany, where our commissioners had met the British commissioners. Had there been an ocean telegraph in those days, it would have prevented the bloody battle of New Orleans, in which, on the 8th of January, 1815, Jackson defeated the English. Some naval battles were fought afterwards by ships which had not heard of the peace. The remarkable thing about the treaty of peace was, that it included a settlement of none of the great questions on which we had gone to war. It was, nominally, jiist a peace between nations who were weary of fighting. But, in fact, the war itself had determined these questions in our favor ; for England has never since enforced or advanced the right to search our vessels for her seamen and subjects, and, it may safely be asserted, never will. THE FOUETH WAE. This was a war with Mexico. The Mexican State of Texas revolted from Mexico. We helped Texas, and it established its independence. Then it called upon our government to protect it against Mexico. This our government was very willing to do, and sent an army into the western part of the Territory of Texas, nom- inally to protect it from invasion. There a battle was fought on the 26th of April, 1846. Other battles followed ; and on the 12th of May Congress passed an act, not declaring war, but declaring that war actually existed between this country and Mexico, and asserting, in substance, that the war had been bi-ought on by Mex- A CITIZEN OF THE UNITED STATES. 83 ico ; and on the next day President Polk issued his proclamation of war. In March, 1847, General Scott took command, and overran Mex- ico, capturing her chief cities, and among them the capital. The whole country was in our power, and virtually in our possession. Peace was made by a treaty on the 2d of Febi'uary, 1848, by which we retained, as a part of our country, New Mexico and California. Texas had already been admitted as a State, in 1845. This war was honorable to our arms. But whether this attack upon a feeble neighbor, and taking from her nearly half of her territory, was hon- orable to our country and to our government, may be questioned. But to this war we owe the possession of California, the peculiar value of which territory was then unknown. THE FIFTH WAE. This war is stiU in everybody's recollection. It was the war between the United States of America and the Confederate States. It began by the attack on Fort Sumter, in the harbor of Charles- ton, on the 12th of April, 1861, and continued for four years, when, on the 8th of April, 1865, Lee surrendered to Grant. There was no declaration of war, no treaty of peace. It was a civil war. It was fought only between parties and regions of the same country. And yet it was the greatest war ever waged on earth, whether we measure it by the extent of country over which it reached, or by its enormous expenditure of treasure and of life ; for nearly a million of lives were lost and ten thousand millions of dollars expended. It was a war between the States which permitted slavery and those which did not. It resulted in the extinction of slavery throughout the country ; and at this day, in every part of the land, there is no difference in law between the white race and the black race. SECTION XIV. POWFR TO BORROW MONEY. Congress has power "to borrow money on the .credit of the United States." As the world now goes, it was perhaps necessary that Congress should have this power, and perhaps necessary that Congress should exercise this power. But the whole business ot running in debt, whether for a man or a nation, is a dangerous thing. National indebtedness was unknown in ancient times ; and only within a century or two has it grown into its present enormous 84 TBE POLITICAL RIGHTS OF • - ■- — " — - ■ II... — . ,, . .^ ■ ■ - J * magnitude. England set the example ; and its national debt seemed a century ago to cautious men an intolerable burden, when it was hardly more than the interest which is now paid annually. The present debt of that country is now but little less than four thousand millions of dollars ; and some of their wisest men have said that the idea of ever paying it is, in fact, abandoned, nothing being hoped or attempted but such a continuation of the prosperity of the country as shall enable it to sustain the taxation necessary to pay the interest. Even that has become of late years problematical. If the commei"ce and manufactures of those islands should receive any material checls^ the necessary taxation would become intolerable, and would no longer be borne. Disguise it in whatever ways may be devised, the taxation to pay the interest of a national debt is juat so much cott- tributed by the wages of labor and the profits of business, and the food drawn from the land. How is it in oxir own country? We have always maintained not only the purpose, but the effort, to pay it off. In the years 1835 and 1836 our national debt was paid in full (excepting a trifling amount, which for special reasons remained some time longer unpaid),; but it began to grow again, and not very slowly. The kte war caused an enormous increase of the debt, — from $88,498,000 to $2,757,253,000. But to the honor of our country be it said, that, on the return of peace, measures were at once adopted not merely to pay the interest, but gradually, and not very slowly, to pay the principal. It has already been reduced from the sum last mentioned, which was the amount of the debt on the 1st of July, 1865, and the highest amount reached during the war, to $2,141,833,000. It is not to be denied, however, that efforts by some men have been made not only to withhold payment of the promised interest, but to give up all endeavor to pay the piincip.il. As yet they have not succeeded. It may be hoped they will never succeed. Heavy as the burden is, we can bear it better than the heavier burden of national disgrace. Let us preserve our n.ition'8 honor by national honesty ; for if we were moved even by the lower motives, we mi^ht still see that national disci-edit would be a great national loss. Let us try to lift this burden off the nation as soon as we can, without excessive effort, that it may not press as a permanent misfortune upon our posterity. A dim feeling that " posterity has done nothinw for us, why should we do so much for posteiity," may enter some minds, and more perhaps than are conscious of it. But our fore- fathers did every thing for us. To their.wisdom, their efforts, their saciifices, we owe all we have and all we are. "We can repay our debt to them only by acting for posterity as they did for us. A CITIZEN OF THE UNITED STATES. 85 SECTION XV. POWER TO COIN MONEY. Tbis is always recognized as a right which belongs necessarily to eveiy independent sovereignty. A coin is a piece of metal on ■which some sovereign, prince, or State has placed its symbol, and thereby declared that the piece of metal contains a certain quantity of a certain purity. Coins are the money of the world. They rest npon the faith and honesty of the State which issues them. Paper money, so called^ is iaot money; it is only the promise to pay money. It is compara- tively a modern invention. While it is convertible at pleasure into coiiis, and is received as coined money because so convertible, it is then the representative of money, but itself is never money. Formerly, before the invention of paper money and national indebtedness, governments in great straits resorted to the device of " debasing the coin," as it was called. That is, a king would make a coin of gold or silver, with the mark that declared it to contaiii, we will say, an ounce of silver, and he would put one-fourth of an ounce of lead into it, making it contain only three-fourths of an ounce of silver. This seemed to give him a quarter part of all his coinage for the price of lead ! Sometimes this debasement would take place secretly, the king hoping that it would not be discovered. Sometimes it was avowed, and the king would make a law that the new coins should be taken as of the same value with the old ones. Equally foolish was he to hope that his secret would not be found out, or that his law could make lead worth as much as silver. Debasement of the coin is never practised now, because the use of national p_aper money has taken place, and answers the same purpose. All States now use this. Perhaps they will find out that they are equally fooUsh with the king above mentioned. As time goes on, and the" world becomes wiser, it may perhaps discover that the legal substitution of promises to pay, instead of paying, while it may give immediate relief, and even a flush of prosperity, is necessarily followed, sooner or later, by a period of equal, if not greater, depression and disaster. When the exigencies of the late war pressed with almost crushing weight upon our government, they yielded to the necessity. Up to that time, only money could legally satisfy a debt or promise to pay money ; in other words, only money was a legal tender. But the government^ by lawj made their own promises to pay money a legal 86 THE POLITICAL RIGHTS OF tender in the stead of money; and thus paper money came into universal use, and actual money disappeared. There was some effort to give this measure a constitutional sanc- tion, under the power given to Congress " to coin money and regu- late the value thereof." But it was vain and meaningless. The measure rested simply upon overpowering necessity ; and on that, ground it might be defended as a thing that was done because it was impossible to create and use the means necessary for the preserr vation of our national existence without doing it. That is to say, it may be defended on the ground of an overruling necessity, and on no other. It was a case of national life or death. At the time, many sensible men thought it would be better to go on without making paper money legal, and raise whatever sums were necessary by loans. But these suras were so enormous, that public credit would have gradually- sunk so low (if it did not wholly perish) that the national bonds would have brought a very low price, and the debt would have exceeded all possibility of payment ; and the interest payable thereon required a taxation which could not have been endured, and would have ended in repudiation; that is, in national bankruptcy and dishonor. Our experience in the compara- tively trifling war with Great Britain in 1812 may give us some instruction. Then our bonds were sold at from 15 to 25 per cent discount, the government receiving their payments in bills of banks that did not pay specie; and, in fact, the government borrowed money at enormous rates. Had we tried the same thing in the civil war, the banks throughout the country must have suspended, and the government have carried on the war with their paper, and not with gold and silver ; and when things were at their worst, and money was needed most, our bonds would not have brought half ,their nominal amount. As it was, very skilful financiering was required to carry us along. And, on the whole, it may be believed that our condition at this time, bad as it is, is c^rtainly no worse than it would have been had the government attempted to struggle through our difliculties on a hard money basis. It is certain, however, that they who concluded to resort to paper money as the best thing they could do, accepting it as a necessity forced upon them by the wUr, had no thought of its continuing much beyond the war. They supposed, and the nation supposed, that as soon as peace was established, the necessity of paper money would pass away, and the law making it a legal tender would be repealed; So it has not been. At this day, after nine years of peace, we have only paper money in use, and as much of it as ever ; and no settled and definite plan has yet been adopted to relieve us from this heavy burden. It is undoubtedly a principal cause of the low A CITIZEN OF THE UNITED STATES. 87 credit of the United States in the markets of the world, in com- parison with that of nations some of which have not one-tenth of our resources. This costs us much, in many ways. What it costs us in one way may be learned from a comparison of our debt and interest with the debt and interest of Great Britain. We may call our debt, in round numbers, two thousand millions. It is, as already stated, a little more. It costs us annually about one hundred mil- lions, or 5 per cent. The debt of Great Britain is but little less than four thousand millions (exactly $3,924,860,000), and it costs them annually about one hundred and twenty millions, or 3 per cent. At this moment there is no question more interesting to the people than when and how we can be done with paper money as a legal tender, and take our place among the nations whose business rests upon a gold and silver basis. Everybody admits the expe- diency, and indeed the necessity, of doing this. Everybody knows . that when it takes place there must be a universal shrinking of values, and, may be, a universal distress. Everybody is therefore seeking, for a plan which will do away with irredeemable paper money as soon as may be, and with the least possible disturbance and distress in the community. Innumerable are the plans proposed. All that can be said here is, that it may be hoped that some one will be selected, and then adhered to firmly. Whether it is the best plan, or the second best, or the third best, is not of so much consequence as that it is one which, in the end, will accomplish its purpose ; and that it be earned out into full effect, steadily and constantly, in despite of the clam- orous begging for relief which is sure to be heard in those troublous times which are sure to come. If any such plan were adopted, and ' the conviction that it would be adhered to fixed in the public mind, this conviction would of itself accomplish half the purpose of the plan of recovery. SECTION XVI. OF NATURAXIZATION. All that the constitution says upon the subject is, that Congress has among its powers one " to establish a uniform rule of naturali- zation." There were wise men among the framers of the constitution ; hut the wisest of them could not have anticipated the vast immigration into this country which has taken place. The subject excited little attention; for we find in the journal of the convention that it gave 88 TBE POLITICAL RIGBTS OF rise to no debate. But of what immense importance it has been ! This country has offered a refuge and a home to the indigent sub- jects of old States ; an opportunity for successful industry to those to whom the crowded countries beyond the seas refused the means of well-paid labor and comfortable subsistence ; and safety and welcome to those whom oppressive laws threatened with the loss of liberty and life. If we add that it permitted an escape from punish- ment to some who deserved it for their crimes, we speak of a few only, who bear no proportion to multitudes who have come to us for other and better reasons. By the census of 1870 the whole nnmher of the population of this country was 38,558,371 ; of this number 5,567,229 were foreign born, or more than one-eighth of the whole. We read in history of th,e countless hordes who, in the fourth century of Christianity and ■ afterwards, came down from the northern regions of Europe and overspread the whole of the Western Roman empire, conquerors everywhere, and founded the existing nations of southern and middle Europe. They were centuries in doing this work. And yet the whole of these invading hosts, from the beginning to the end, were probably a smaller number of persons than those who have come from abroad, and have died or are now living in the United -States. And still oin* broad lands welcome them; and should the crowded millions of Asia, now separated from us only by the ocean, find their way across that highway of nations, for them also we can offer land enough, and a welcome, if only we can hope that they will leave behind them habits which must be a bar- rier between them and us, and bring with them no elements of char- acter which must needs prevent their taking their place as citizens of our common country, free without license, and useful by their faidustry without being harmful by their lives. By naturalization a foreigner becomes, to all intents and pur- poses, a citizen of the United States, with no disability attaching to him on account of his foreign birth, except that he cannot be Presi- dent or Vice-President of the United States. Congress, in pursu- ance of the power given to it by the constitution, has, at sundry times, enacted laws of naturalization. Those in force at the present time are as follows : — LAWS OB" NATUEALIZATIOK. An alien or foreign-born person may be naturalized, if he declares, on oath or affirmation, before the Supreme, Superior, District, or Circuit Court of some one of the States, or a Circuit or District Court of the United States, two years at least before his admission, A CITIZEN OF THE UNITED STATES. 89 that it ■was, bona fide, his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty whereof such alien is at the time a citizen or subject. He must, also, when applying to be admitted, declare, on oath or affirmation, that he has never borne any hereditary title or been of any order of nobility, or, if he has borne such title, that he renounces the same, and that he will support the constitution of the United States, and that he renounces and abjures for ever all allegiance, &c. (as before). He must also prove to the satisfaction of the court, and by other evidence than his own oath, that he has resided within the United States five years at least, and within the State or Territory where the court then is, one year at least, and has behaved during that time as a man of good moral character, attached to the prosperity of the constitution of the United States, and well disposed to the good order and hap- piness of the same. An alien who is a minor, and has resided in the United States three years next preceding his arriving at the age of twenty-one years, and has continued to reside therein until he made application to be admitted a citizen, may, after arriving at twenty-one years of age, and after residing in the United States five years, including the years of his minority, be admitted without having made the previous declaration stated above. But at the time of his admission he must declare, on oath or affirmation, and prove to the satisfaction of the • court, that it had been his bona fide intention during the three years next preceding his admission to become a citizen of the United States. . At the time of his admission he must declare, on oath or affirmation, and prove to the satisfaction of the court, his residence and character, and renounce all allegiance, &c., in the same way as required in the preceding section at the admission of an alien not a minor. In addition to these it is provided that a seaman who declares his intention as before provided, and thereafter serves three years in American vessels, may be admitted as a citizen. Also, that one who enlisted in the regular or volunteer service of the United States, and was honorably discharged therefrom, may be admitted, after proof of residence of one year within the United States, and of good character. Every court of record in any State having common-law juris- diction, and a seal and clerk or prothonotary, is a District Court within the meaning of these laws. 90 THE POLITICAL RIGHTS OF PEACTICB. An alien desiring to make the preliminary declaration may go to the clerk of any of the above courts, and; expressing his intention, he will receive from the clerk the proper form, or if the clerk can- not give it to him, may draw it up in the form given below, and make oath thereto. This will be recorded, and a certificate given him, which he should keep ; but if he loses it, he may obtain a cer- tified copy fi"om the clerk. Then, when the time comes for his admission, he mnst go to the clerk of a court competent to admit him and present his certificate. The clerk will give him a deposition, stating the above facts, which he will take, and go with his witnesses (one being enough, unless the court requires more) before the court who examines the applicant and the witness under oath ; and the depositions are then signed and sworn to by the parties in open court, and the court then makes an order for his admission, and the clerk gives him a certificate that he has been admitted as a citizen, and this certificate is thereafter evi- dence of the fact ; and, if lost, a copy may be obtained from the clerk, the whole procedure being recorded. Annexed are forms proper for the whole procedure in naturaliza- tion. PRELIMINARY DKCLAEATION OF INTENTIOS'. UNITED STATES OP AMERICA. To the Honorable the Judge of the Court of within and for the District of Respectfully represents (here insert the name of the applicant') of (residence) in said District an alien, that he was born in (place of birth) on or about the (time of birth) day of in the year of our Lord eighteen hundred and and is now about years of age ; that he arrived at (place where he first landed) in the District (or State) of (name of District or State) in the United States of America, on or about the (day of landing) day of in the year of our Lord eighteen hundred and ; that it then was, and still is, his bona fide intention to become a citizen of the United States of America, and to renounce forever all allegiance and fidelity to every foreign prince, state, potentate, and sovereignty whatsoever, — more especially to (name of sovereign or state to whom he owed allegiance) whose subject he has hereto- fore been. He therefore prays that this his declaration and intention may become a record of this honorable court, agreeably to the laws in such case made and provided. (Signature of Applicant). A CITIZEN OF THE UNITED STATES. 91 District (or State), to wit: Court, 187 Then the said (name of applicant) personally appeared before the clerk of said court, and made oath to the truth of the facts as set forth in the above declaration to the court, by hira subscribed. Attest : (Signature of Clerk). (2.) CERTIFICATE OE THE CLEKK TO THE DECLAEATION. A COPY. I, clerk of (naming the court), do hereby certify that the above is a true copy of the declaration of intention to become a citizen of the United States, of the original whereof is on record in my office. In witness 'whereof, I have hereunto signed my name and affixed the seal of said court, at on the day of in the year eighteen hundred and (Seal of the court). (Signature of Clerk). (3). APPLICATION FOR ADMISSION AS A CITIZEN. UNITED STATES OP AMERICA. District, SS. To the Honorable the Judge of the (here insert the name of the court) within and for the District of (here give the district or county). Kbspectfully kkpresents (here give the name of the applicant) of (the name of the town or city) in said district, an alien, that he was born in (insert here the place of his birth) on or about the ' day of In the year of our Lord eighteen hundred and and is now about years of age; that he arrived at in the United States of America, on or about the day of in the day of in the year of our Lord eighteen hundred and that it is his bona fide intention to reside in and become a citizen of the United States of America, and to renounce all allegiance and fidelity to every foreign prince, state, potentate, and sover- eignty whatsoever, — more especially to (here insert the name of the sovereign or state to which he owed allegiance) whose subject he has heretofore been : All which appears in the record of the honorable court (naming the court where he made his preliminary declaration) , to wit, on the day of A.D. 18 And the said petitioner further represents, that he has ever since con- tinned to reside within the jurisdiction of said United States, to wit, at said (the place or places of his residence in this country) ; that he has never borne any hereditary title, or been of any of the orders of nobility; that he is ready to renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particularly to (here repeat the name of the sooereign or stats to which he has borne allegiance)) 62 THE POLITICAL RIGHTS OP whose subject he has heretofore been; that he is attached to the principles of the Constitution of the United States of America, and well disposed towards the good order and happiness of the same. Wherkfoue your petitioner prays, that he may be admitted to become a citizen of the said United States of America, according to the forms of the statutes in such case made and provided. {Signature of Applicant). 187 Sworn to by the said petitioner, Before me, Clerk. If the applicant was a minor, and made no preliminary declaration, the form of his application must be the same as above, excepting that the words, " being then a minor under the.age of years," must be inserted immediately before the words, " and it is his honajide intention; " and the words, ' ' all which appears in the record of, " as far as " a.d. 18 , " must be stricken out. If th^ applicant comes as a sailor, who, having declared his intention as before provided, thereafter served three years in American vessels; or if he comes as one who enlisted in the regular or volunteer service of the United States, and has resided one year within the United States, a state- ment of the necessary facts must be inserted immediately before, " Where- fore your petitioner prays; " and such changes made in the application as the facts require. (4.) DEPOSITION AND OATH OF WITNESSES. (Blanks to he filled in accordance with the facts.) UNITED STATES OF AMERICA. District, to wit : city (or town) of 187 We both citizens of said United States, severally depose and say, that we have known the foregoing petitioner, for five years last past, during which time he has resided in said and that he has resided within the State of Massachusetts one year at least; and has conducted himself and behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed towards the good order and happiness of the same. 187 . Sworn to by said witnesses. Before me, Cto*. (5.) OATH OF PETITIONER. I, do solemnly swear, that I db absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state,' or sovereignty whatsoever, particularly to (name of the sovereign and state to which he has boi-ne allegiance), whose subject I haif« A CITIZEN OF THE UNITED STATES. 93 heretofore been; and that I will support the Constitution of the United States of America, — so help me God. (6.) CERTinCATE OP CLERK TO THE OATH. ' (Blanks to be filled in accordance toith the facts.') UNITED STATES OP AMERICA. District of to wit: At a special District Court of the United States, holden at said Boston, on the day of in the year of our Lord 187 the said having produced the evidence required by law, took the aforesaid oath, and was admitted to become a citizen of the United States of America; and the court ordered that record thereof be made accordingly. Attest : Clerk. (7.) CERTIFICATE OF CLERK FOR RECORD. (Blanks to be filled in accordance with the facts.") XJNITED STATES OF AMERICA. District fSS. Be it remembered. That at a District Court of at within and for the district of on the day of in the year of our Lord one thousand eight hundred and seventy . Personally appeared before the clerk of said court of m said district, an alien and a free white person, and by his declaration in writing, on oath set forth, That he was born in on or atbout the day of in the year of our Lord eighteen hundred and and is now about years of age; that he arrived at in the district of ia the United States of America, on or about the day of in the year of our Lord eighteen hundred and that it then was, and still is, his bona fide intention to become a citizen of the United States of America, and to renounce forever all allegiance and fidelity to every foreign prince, state, potentate, and sovereignty whatsoever, more especially to whose subject he has heretofore been. He therefore prayed, that his said declaration and intention might become a record of said court, agreeably to the laws in such case made and pro- vided. Whereupon the declaration of the said was admitted to become a record of said court accordingly. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said coiu-t at this day of A.D. 187 in the ninety- year of the Independence of the United States of America. Clefk of the Court for the District of 94 THE POLITICAL EIGHTS OF (8.) CERTIFICATE OF THE CLEKK TO BE GIVEN TO THE APPLICANT. (Blanks to be filled in accordance with the facts.") UNITED STATES OF AMERICA. District, ss. To ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREET- ING. Know ye, That at the court of holdeu at within and for the district of on the day of in the'year of our Lord one thousand eight hundred and seventy- of in said district, born in having produced the evidence, and taken and sub- scribed the oath, required by law, was admitted to become a citizen of the United States, according to the acts of Congress, in such case made and provided. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said court at aforesaid, this day of A.D. 187 and in the ninety- year of the Independence of the United States of America. Clerh of the Court for the District of FORMS ANNEXED TO THIS SECTION. 1. Preliminary declaration of intention. 2. Certificate of the clerk to the declaration. 3. Application for admission as a citizen. 4. Deposition and oath of witnesses. 5. Oath of petitioner. 6. Certificate of clerk to the oath.' 7. Certificate of clerk for record. 8. Certificate of the clerk to be given to applicants. SECTION XVII. ADMISSION OF NEW STATES. The framers of the constitution contemplated the possibility, perhaps the probability, of new States desiring and receiving ad- mission into the Union. But we may look into the debates and discussions of those days, and nowhere, even among the most san- guine anticipations, shall we find even a hope expressed of the vast increase of the Union by the admission of new States. To the original thirteen, twenty-four have been added, making the whole number now thirty-seven ; and we have also nine tenitories organized, A CITIZEN OF THE UNITED STATES. 95 which are awaiting a sufficient growth in population to ask for admission as States, and some of whom wilLreceive it soon. In giving to Congress this power of admitting new States, pre- cautions wei"e adopted to prevent injury to States ah-eady in the Union; no new State can be formed within an old State, as by the junction of two or more States, or parts of States, without the consent of the legislature of the States concerned, as well as of Congress. It must be remembered that by this formation of new States the balance of power between the States may be much aifected, by reason of the construction of the Senate. Thus Texas was ad- mitted as a State in 1845. But in the act admitting that State (which covers a vast extent of country), it was provided that four new States might be formed from that single State. If that pro- vision were carried into effect, what is now Texas woidd have five times the strength in the Senate which it now has. SECTION XVIU. A REPUBLICAN FORM OF GOVERNMENT GUARANTEED. The constitution provides that the United States shall gnarantee to every State in this Union a republican form of government. The trne construction of this clause is, not that the United States shall guarantee to each State that it shall have a republican govern- ment, but that the United States shall guarantee to every State that every other State shall have a republican form of government. For, let it be supposed that a State desired admission under a gov- ernment which was not republican in form. Thus we may suppose by way of illustration, what is hardly possible^ that one of the prov- inces of the Dominion of Canada desired to enter into the Union, but that it retained so much fondness for monarchical government that it wished to have a permanent executive, with an hereditary body invested with hereditary rule or power. If the word " guar- antee " is to be construed technically, it is only a promise to a party to make good to that party some benefit or advantage which that party requires or desires. Therefore, that party may waive the guaranty, and may say it was intended only to secure to us that we should have a republican form of government if we chose, and we do not choose it. Surely the answer would be, All the other States are interested in this question. All would be injured if there were one among them which was not republican, and the constitution promises all that all should be republican. 96 TBE POLITICAL RIGHTS OF The importance of this question springs from the possibility that some one or more of the States might desire changes in her form of government not compatible with republicanism. For ex> ample, it might disfranchise certain classes, giving the elective franchise only where a large pecuniary qualification existed, or making eligible to office only the members of a narrow class, always retaining the name of a republic. It is plain that every State might complain of this, and say to Congress, The constitution gives this guarantee of republicanism not to that State only, which may waive it if it will, but to all of us, and to every one of us ; and we do not waive it. If there is ever an attempted violation of the rule implied under this guaranty, it will undoubtedly be concealed and disguised by false pretences. That is to say, the State will claim still to be a republic, as Holland did when it became virtually a monarchy ; and as Venice did, when its government became a close and despotic oligarchy. The difficulty will be in the exact definition of a re- public. If the time ever comes when this difficulty shall present itself, well may we or our children jor our children's children re- member that Lincoln has left for us, tinder circumstances which made it immortal, the definition we have already spoken of. A government of the people, iy the people, and for the people, is a republic, and cannot fail to be a republic. And a government which does not come within this definition, whatever it may call itself, is not a republic. SECTION XIX. OF AMENDMENTS TO THE CONSTlTtJTIOW. Some persons in our own country, and many more in the old countries of Europe, have regarded the respect which the people of this country pay to their constitution as excessive. They represent the constitution as a fetter upon us ; as more than a fetter, — as an iron framework with which we have chosen to invest ourselves, and which, however we outgrow it, we cannot improve. This reproof would be just, were it not that the constitution provides for its own growth, development, and improvement. It is the supreme law of the land, and expresses the will of the people. But every law is made by the servants of the people, and expresses their will. Why should not the constitution be as easily changed and made to conform as promptly to any change in the will of the people as the law itself? Look, however, at the law, and see how that can be changed, and, on the other hand, how it cannot be A CITIZEN OF THE UNITED STATES. 97 changed. A mass meeting of the citizens of Ohio, for example, even ■were that physically possible, could not change the law. And why? Because the people have seen fit to guard themselves against hasty and unwise. legislation, by surrounding it with a certain measure of difBculty and delay. First, the servants of the people must be for- mally chosen by the people, to do for them this very work of legis- lation. Then they assemble in two bodies, each of which is a check upon the other, and the executive is entrusted with a limited veto upon the two Houses. Then every bill proposed, before it can become a law, must in each House pass through several appointed steps, at any one of which it may be an-ested, and all of which taken together tend to secure to every proposed measure a sufficient consideration. The question may now be repeated, Why are not these checks sufficient in the case of the constitution? The answer is easy. The constitution contains what the people believe to be essential and fundamental principles of all law, together with a machinery of government carefully devised to secure wise legislation and faith- ful execution of the laws ; and to this machinery it is desirable to give a large measure of permanence and stability. Therefore the constitution may be changed at any time and to any efiect which the will of the people requires ; but only by a method well devised to make it certain that this change is desired not by the passionate, impulsive, and temporary will of the people, hut by its careiful, in- structed, and deliberate will. AMENDMENTS, HOW MADE. Congress may propose amendments, or may call a convention to propose amendments, if the legislatures of two-thirds of the several States ask for it ; and amendments made by Congress or by that convention are valid as parts of the constitution, when they are ratified by the legislatures of three-fourths of the States, or by con- ventions in three-fourths thereof, as either mode may be proposed by Congress. Experience thns far has justified the framers of the constitution in believing this method would render it sufficiently easy for the people to change the constitution whenever they did certainly and unmistakably desire it, and sufficiently guarded to protect the con- stitution from any change which was not so desired. By the Congress which met in New York, in 1789, the first ten articles of amendment were proposed and ratified in that year, in 1790, and 1791. They were all founded upon wishes or recommen- dations presented by different States, when adopting the constitu- tion. 7 98 THE POLITICAL RIGHTS OF In 1793 was proposed the eleventh article of amendment, which was ratified. In 180.3, the twelfth article ; in 1865, the thirteenth article; in 1868, the fourteenth article; in 1870, the fifteenth arti- cle. These articles are published in preceding pages, in connection with the constitution. SECTION XX. OF THE CENSUS. This is a Roman, that is to say, a Latin word. By the ancient constitution of Rome, the people were divided into six classes, according to their wealth; those few only who possessed a very large sum being in the first class, and the required sum diminishing in the others, down to the sixth class, which was composed of those who had nothing, or too little to entitle them to admission in any higher class. That this classification might be made, every Roman citizen was required to come on a certain day to an open place in the city, and there declare, under oath, his name, dwelling, children, and the value of his property, under penalty of being scourged and losing all his goods. This enumeration took place every five years, and was called a census. I have described it briefly, to show that this periodical enumeration was made for political purposes, being required by the classification of the citizens, who then voted in the classes thus formed. Of the censuses taken among difierent nations in difierent ages, all have been for some political purpose, from the time when a decree went forth from Caesar Augustus " that all the world should be taxed, and all went to be taxed (or to be registered for the purpose of taxation), every one unto his own city," to our own day. As by our constitution political power was given mainly in proportion to numbers, it was essential that an enumeration should be made from time to time ; and the constitution provided that the requisite enumeration should be made within three years after the first meeting of Congress, and within every ten years afterwards. The first Congress ordered the first census, which was taken in 1800, and a census has been taken every ten years since. It was apparent that at first there was little thought of learning more by the census than what was requisite to distribute political power among the people, in accordance with the requirement of the con- stitution ; for the first census only contained and enumerated the free white males of sixteen years and upwards, the same under that age, the number of females, and the number of slaves, and the num- ber of heads of families. A CITIZEN OF THE UNITED STATES. 99 Since then, however, the science of Statistics has received im- mense development. It is the object ^of this science to ascertain, collect, and arrange all facts which have an important bearing upon the resources, the growth, the political, financial, intellectual, indus- trial, social, physical, and moral condition of a nation. Societies have been formed, journals published, and meetings held of men interested in such facts, from various countries, all intended to pro- mote this science. It was seen at once that our census afforded a most important and serviceable instrument for that purpose. Every succeeding census has been made more instructive, by increasing the subjects of inquiry and improving their classification. At present, among the topics concerning which inquiry is made and information recorded, may be enumerated the number of families, of houses, the sex, age, color, birthplace, occupation, profession, or trade, of every person, the married and the widowed, the deaf and dumb, blind, idiotic or insane, with the age and sex of each ; the age, sex, color, occupation, and birthplace of every one who had died within the year of enumeration and before the day thereof, with the cause thereof. Also the value of property ; the number of acres improved or unimproved ; their value, their productions, with the number, kinds, and value of the live-stock owned, and of agricultural imple- ments and machinery ; the number and kinds of educational institu- tions, with the number of scholars and of teachers, and their revenue ; and the number of those who cannot read and write ; also inquiries concerning mines, manufactures, and fisheries are included, so as to ascertain the amount of capital invested, the motive power employed, the number of persons of each sex employed and the wages paid, the quantity, kind, and value of raw materials used, and the quan- tity, kind, and value of the products. Already has the information thus acquired been of great use in the national and State legislation, and also in regulating or suggest- ing private enterprises. And as time goes on, and experience shows how to make the census more useful, its beneficial results will be greater, more clearly seen, and more widely acknowledged. Many of the States have provided by law for a censu^within each State, at periods intermediate between those of the national census. We annex to this chapter some instructive tables, giving to the reader the means of comparing this country with other countries in Europe, Asia, and Australia, and then with each other, upon inter- esting points.^ For example, by Table I. he will find that the United States 1 We take these tables, by permission, from a yaluable and instructiye work, entitled "The Statesmiin's Manual," published by Macmillan & Co., London and New York. 100 THE POLITICAL RIGHTS OF • ranks the fifth in population among all the States in the world, while it is the fourth in territorial extent. In this table the British empire stands second only to the Chinese " empire in population, while we hold the fifth place. But the population of the British Islands is much less than of this country ; and to give the British empire the place it holds in this table, the enormous population of India must be added to that of the British Islands and colonies. By Table II. we learn that this country is only the twenty-third, if the countries of the world are ranked according to the density of population, or the number of inhabitants to the square mile of surface. Belgium stands at the head. This little State, which is smaller in extent than any but 7 of our 37 States, has 451 persons on each square mile ; while we have but 11. That is to say, this country is 3,421 times as large in extent as Belgium, while that coun- try has 41 times as many living on each square mile as this country. The British Islands have 24 times as many, France 15 times as many, and Germany 17 times as many persons to the square mile as we have. Many ages must elapse before our population can press upon our means of subsistence, all which are derived primarily from landj so as to make it as difficult for the masses to live here in comfort as it now is there. N'o wonder that their crowded popula- tion is pouring into our vacant lands at such a rapid rate. Table III. relates to railroads. Here we lead the world in the number of miles open to traffic, having more than four times as many as the British Islands, which come next to us. And yet we rank but the eleventh in the number of miles of railroad to each square mile of surface. Table IV. relates to telegraphs. Here, too, we lead the world in the miles of telegraph ; but not so widely as in railroads, Russia, which comes next to us, having nearly half as many. We hold a still lower place, — only the seventeenth, — if the nations are ranked by the miles of telegraph to the square miles of surface. Table V. relates to the mercantile navies of the world. It shows us that we rank second. Great Britain alone exceeding us, having more than twice as many in tonnage, and three times as many in number as we have. Table VI. gives the debts and revenue of the various nations, in pounds sterling, to which all of them are reduced ; this sum multi- plied by five gives the amount in dollars. Here Great Britain takes the lead, France coming next, and we holding the third place. The debts are also compared with the revenues. The debt of Great Britain is equal to the revenue of lOJ years ; that of France to its revenue of 7 J years ; while out debt equals the revenue of 6| years. A CITIZEN OF THE UNITED STATES. 101 Bank of the Prmc^al States of the World. According to Population, According to Territorial Extent. States. Inhabitants at last Enumeration, or Estimate. States. Area: English square miles. 1. Chinese Empire 2. British Empire' 8. Russian Empire 4. Germany . . 6. United States 6. France . . . 7. Austria-Hungary 8. Turkey 9. Japan 10. Italy . 11. Spain 12. Siam. 13. Brazil 14. Mexico 15. Sweden and Norway 16. Belgium 17. Persia . . 18. Portugal . 19. Netherlands 20. Peru . . . 21. Colombia . 22. Morocco . 23. Switzerland 24. Venezuela . 25. Chili . . , 26. Denmark . 27. Bolivia . . 28. Argentine Confed, 29. Greece . 30. Paraguay 425,213,152 199,817,108 82,172,022 41,058,139 88,558,371 86,469,875 35,904,435 35,350,000 35,000,000 26,796,253 16,301,851 11,800,000 9,858,000 9,176,082 6,905,542 5,087,105 4,400,000 8,995,152 8,915,956 3,199,000 2,794,473 2,750,000 2,669,147 2,200,000 1,938,861 1,784,741 1,742,352 1,736,922 1,457,894 1,200,000 1. Bussian Empire 2. British Empire 3. Chinese Empire 4. United States 6. Brazil . . . 6. Turkey . . . 7. Mexico . . . 8. Persia . . . 9. Argentine Confed, 10. Peru . , , 11. BoliTia . . 12. Colombia . 13. Venezuela . 14. Sweden and Norway 15. Siam . . 16. ChiU. . . 17. Austria-Hungary 18. Morocco . . 19. Germany . . 20. France . . . 21. Spam . . . 22. Japan . , . 23. Italy. , . , 24. Paraguay . . 25. Portugal . . 26. Greece . . . 27. Switzerland . 28. Denmark . . 29. Netherlands . 30. Belgium . . 7,861,380 4,677,432 3,924,627 3,608,844 8,100,104 1,812,048 1,030,442 648,000 515,700 502,760 473,300 432,400 368,235 288,771 250,000 230,977 226,406 219,000 212,091 201,900 182,758 156,604 112,677 57,303 86,510 19,941 15,233 14,553 13,464 11,267 102 THE POLITICAL RIGHTS OF II. Density of Population of the Principal States and Territorial Divisions of the World. states and Teirltorial Divisions. Belgium England and Wales . . Netherlands Gt. Britain and Ireland . Italy Japan British India .... Germany Switzerland Ireland Austria-Hungary . . . France Denmark Chinese Empire . . . Scotland Portugal Spain Greece Sweden and Norway . Turkey ChiU Morocco United States .... Russian Empire . . . Mexico Colombia Argentine Confederation Brazil Census Tear. 1870 1871 1870 1871 *1871 Estimate. 1871 1871 1870 1871 1869 1872 1870 Estimate. 1871 1868 1860 1871 1872 1844 1869 Estimate. 1870 1867 1871 1870 1869 1872 Population. 5,087,105 22,704,108 3,915,956 31,817,108 26,796,253 32,794,897 190,277,644 41,009,999 2,669,147 6,402,759 85,904,435 36,102,821 1,784,741 425,213,152 3,358,613 3,995,152 16,301,850 1,457,894 6,013,412 35,350,000 1,938,861 2,750,000 38,558,371 82,172,022 9,176,082 2,900,633 1,736,922 10,095,978 Area: Engliab square miles. 11,267 58,320 13,464 119,924 112,677 156,604 963,929 212,091 15,233 31,874 226,406 201,900 14,653 3,924,627 30,685 36,510 182,758 19,941 288,771 1,812,048 130,977 219,000 3,603,844 7,861,330 1,030,442 432,400 515,700 3,100,104 Population per square luiie. 451 389 291 265 237 209 207 193 175 169 158 150 111 110 109 108 90 73 21 20 15 12 11 10 9 7 3 8 A CITIZEN OF TBE UNITED STATES. 103 ni. Hallways of the World. states and Territorial Dlvteions. Tear. Length of Railways open for traffic. One mile of Bail- way to square miles of area. Belgium Great Britain and Ireland Netherlands Germany ...... Switzerland . . . . . France Italy Denmark Austria-Hungary . . . Spain United States of America Portugal Koumama Dominion of Canada . . Britisli India Russia Sweden and Norway . . ChiU Costa Rica Honduras Egypt Argentine Confederation . Uruguay Peru Paraguay Australasia Mexico Turkey Cape of Good Hope . . Colombia ...... Brazil Jan. 1. 1872 1873 1872 1873 1871 1871 1871 1872 1872 1870 1873 1869 1871 1873 1870 1872 1873 1872 1878 1873 1870 1872 1873 1873 1873 .1870 1870 1873 1873 1873 1872 English miles. 1,892 15,814 1,045 13,066 820 10,383 3,895 530 7,529 3,801 70,178 458 507 2,928 4,182 7,297 1,049 452 82 62 737 875 57 875 44 1,058 800 488 184 66 410 English aqnare miles. 6 8 18 15 18 19 27 28 SO 54 56 81 90 148 230 280 292 298 318 638 907 955 1,290 1,340 2,384 2,404 3,435 8,720 5,000 ' 6,600 7,573 1&4 THE POLITICAL RIGHTS OF IV. Telegruphs of the World. states and Teriltorial DiTisions. Tear. Length of Telegraph Lines. One mile of Telegraph Line to square miles of area. Great Britain and Ireland Belgium Switzerland Netherlands Germany France Italy Denmark ...... Portugal Greece AustriarHungary . . . Spain United States .... Dominion of Canada . . Sweden and Norway . . ChiU British India Turkey Australasia Costa Bica Egypt Uruguay Guatamala Mexico BuBsia Argentine Confederation . Colombia Peru Bolivia Ecuadot Brazil Jan. 1, 1873 1872 1873 1872 1873 1870 1870 1870 1870 1872 1872 1870 1872 1872 1871 1873 1872 1870 1869 1873 1870 1873 1872 1870 1872 1872 1873 1870 1873 1872 1873 English miles. 24,363 2,694 3,430 1,869 26,060 23,100 10,595 1,225 1,930 1,226 11,665 7,011 75,137 10,995 7,268 2,045 13,371 16,125 13,850 220 8,780 312 152 8,160 31,459 3,150 810 608 475 210 1,500 English square miles. 4 5 6 7 8 9 10 12 14 18 20 25 36 38 40 64 72 112 114 118 188 235 272 327 330 391 534 825 985 1,091 2,580 A CITIZEN OF THE UNITED STATES. 105 V. The Mercantile Navies of the World. 1. Sea-ooing Steauebs. states. Number. Tonnage. ATeiage Tonnage Great Britain United States France Germany Spain * . Italy Austria Netherlands Bussia Sweden Norway Denmark Belgium Portugal Greece Turkey Other States Total Steamers 8,061 403 892 200 202 103 91 95 114 143 88 71 42 17 8 9 109 2,624,431 483,040 316,765 204,894 138,675 85,045 84,155 72,735 67,522 63,327 41,602 34,498 30,444 14,536 8,390 3,049 70,067 889 1,198 808 1,024 686 825 925 765 592 373 472 412 725 8-55 424 338 643 5,148 4,328,193 847 2. Sea-Going Sailing Vessels. States. Number. Tonnage. Average Tonnage Great Britain United States Norway Italy Germany France Spain Netherlands Greece Bussia Austria Sweden Denmark Portugal Turkey Belgium Other States Total Sailing Vessels . . . Total Steamers and Sailing Vessels 20,832 6,786 8,930 4,220 3,834 3,973 2,867 1,447 1,955 1,327 965 1,827 1,226 415 224 46 407 5,320,089 2,132,838 1,137,177 1,126,032 893,952 768,059 540,211 397,232 392,894 847,744 336,113 327,409 170,834 93,815 84,711 14,704 152,022 255 314 289 266 233 193 188 274 201 262 ' 348 177 139 226 168 819 373 56,281 14,185,836 252 61,429 18,514,029 801 106 THE POLITICAL RIGHTS OF VI. J)ebts and Revenue of the Principal States of Europe and America. Statea. Financial year. Europe : — Austria-Hungary Belgium . . , Denmark . . . France .... Germany : — Prussia . . . Bavaria . . . Wiirtemburg . Saxony . . . Great Britain and Ireland . . . Greece .... Italy . . . , Netherlands . . Portugal . . < Bussia .... Spain .... Sweden and Norway Switzerland . . Turkey . . . America : — Argentine Confeder- ation Bolivia Brazil Canada, Dominion of Chili Colombia . . Hondoras .... Mexico Peru United States . . Uruguay .... Venezuela. . . . 1873 1873 1872 1873 1873 1872 1872 1872 1873 1872 1872 1873 1873 1873 1871 1873 1872 1873 1873 1873 1872 1872 1872 1870 1872 1871 1872 1873 1872 1872 Debt. 346,926,906 36,981,960 12,747,589 748,790,082 67,356,837 35,446,396 14,964,133 17,247,169 784,972,103 15,512,000 360,807,407 78,416,152 72,833,000 875,000,000 261,475,000 8,548,265 855,866 215,000,000 15,036,303 3,200,000 90,000,000 24,480,038 5,288,950 9,929,200 5,990,108 79,100,000 40,720,000 446,896,598 10,600,000 20,000,000 Bevenne. 57,086,482 7,336,964 , 2,287,392 100,040,804 81,506,520 9,182,355 2,030,046 2,062,937 76,608,770 1,217,964 61,933,401 8,856,143 4,103,421 68,109,285 27,901,746 4,857,060 1,026,200 19,488,375 3,721,324 1,400,000 9,258,621 5,963,566 1,854,984 2,350,000 97,000 8,700,000 6,898,235 66;747,640 1,017,160 878,520 Tears of Eevenue represented by Debt. Tears, 6 6 2i 4 n Si lOi 12i 6 9* 18 5i 9J 2 S 11 i 2i 10 4 8 4 62 22 7 65 10 23 A CITIZEN OF THE UNITED STATES. 107 CHAPTER V. THE CONSTITUTION'S OF THE SBVEKAL STATES. In this chapter the constitntions of the several States are not given in full, but the method of election and the tenure of office of the executive, legislative, and judicial officers ; their boundaries and area ; with notices of any interesting peculiarities in the consti- tution. To this is added a brief account of the history and present condition of each State. In this chapter the thirteen original States are arranged in geo- graphical order. The other twenty-four States are arranged in the order in which they were admitted to the Union. NEW HAMPSHIBB. This State is bounded north by Canada East, east by Maine and the Atlantic, south by Massachusetts, and west by Vermont, from which it is separated by the Connecticut river. It contains 9,280 square mUes, or 5,939,200 acres. _^ Originally it adopted its constitution in 1784, and this has been amended at different times. By it the government of the State is vested in a governor, a council of five members, and a senate of twelve members, and a house of representatives. Every town hav- ing one hundred and fiily ratable polls chooses one representative, and one additional representative for every additional three hundred polls. All of the State officers are elected annually. No person can hold the office of governor, senator, or representative, unless he conforms to some denomination of Protestantism. The judges are appointed by the governor, with the consent of the council, and hold office during good behavior. This State has passed through many political fluctuations. It was first visited by Europeans in 1614, and a settlement was made near what is now Portsmouth. Nine years afterwards it was connected with Massachusetts as a district, and was in many points subject to the government of Massachusetts. In 1679 it was made a royal province In 1689 it was again joined to Massachusetts. After- wards it was for a short time connected with the colony or province of New York. In 1741 it was made a separate province or colony, and so it remained until the Revolution. 108 THE POLITICAL RIGHTS OF The agriculture of New Hampshire is impeded by its climate ; nor is its soil in general very fertile; but inmany parts of the State there are excellent and productive farms. The water-powers -of the State are numerous and important, and have been to a large extent utilized. There are many manufacturing towns, some of con- siderable magnitude. About 112,000 acres of the surface of this State are under water. MASSACHUSETTS. This State is bounded north by Vermont and New Hampshire, east by the Atlantic Ocean, south by the Atlantic, Rhode Island, and Connecticut, and west by New York. It contains 7,800 square miles, or 4,992,000 acres. The constitution of the State was originally adopted in 1780, and it has since been repeatedly changed. The government consists of a governor, lieutenant-governor, secretary, treasurer, auditor, attor- ney-general ; an executive counoU of eight members, over whom the lieutenant-governor presides, and who are elected annually ; a senate of forty members, and a house of representatives of two hundred and forty. All of these officers are chosen by the people. The judges are all appointed by the governor, with the consent of the council, and hold their offices during good behavior. They may be removed by impeachment ; and the governor, with the consent of the council, may remove them upon the address of both houses of the legislature. Each branch of the legislature, as well as the gov- ernor and council, have authority to require the opinions of the jus- tices of the supreme judicial court upon important questions of law, and upon solemn occasions. It is supposed that navigators &om Iceland, in the year 1000, wintered at a place in the south-east part of Massachusetts and Rhode Island. The Cabots, sailing under a patent granted by Henry VII., King of England, sailed along the eastern cost of America, and made several landings ; and the Ikglish thereafter claimed the country, by the rights which accrued to them from the discoveries of the Cabots. There were many attempts at settlement along the New England coast ; but we consider the first permanent settle- ment to have been that of colonists who arrived in the " Mayflower " on the 22d of December, 1620, at Plymouth. Most of them had already fled from persecution in England, to Holland, where they had sought religious liberty. They formed a community in Leyden, of which John Robinson was pastor, and William Brewster an elder. But their surroundings were utterly unsatisfactory; and they deter- mined to encounter the dangers and sufferings of a long sea^voyage, A CITIZEN OF THE UNITED STATES. 109 wHcli were then much greater than they -would be now, and the perils of hostile savages, famine, and sickness, in a mere wilderness. We have already stated that before landing they formed and Bubseribed a solemn compact, which may be considered, if not the foundation, at least the beginning, of our republican constitutions. The scarcity and bad quality of their food, and their exposure to the severity of weather which they were wholly unaccustomed to, killed half their number in little more than four months, and much en- feebled the survivors ; but they persisted in their purpose. There is much reason to believe that a severe pestilence, the nature of which is not known, had at that time thinned the natives along the coast of New England, and in some places almost exterminated them. But for this the colony could have hardly held their own. They were ' often near famishing, until 1626, when for the first time they had a plentiful harvest. In 1628 an immigration from England reached Salem, under the command of John Endicot. Large reinforcements soon followed, and Boston and neighboring towns were settled. These colonists were all Puritans ; and while they made the greatest sacri- fices and efforts to obtain religious freedom for themselves, there is no evidence that they Acknowledged in any degree the duty of per- mitting religious fi'eedom in those who differed from them. As the colony of llassachusetts rapidly grew in numbers and prosperity, it attracted the attention of England, and there were attempts to annul the original charter, under which the colonists had emigi-ated. Many difficulties ensued, and in 1675 began the war with the Indians, called King Philip's war, which desolated a large part of the th^ settled country. Of a population of about 12,000, one man in twenty had died ; and of the families, one in twenty were houseless. This war was conducted without assistance from England ; but as soon as it ceased, pretensions were again asserted to a master- ship over the colony. ' When, in 1689, reports were received of the English revolution of 1688, the men of Boston, with some from the neighboring towns, rose in arms and imprisoned the royal governor and other officers. In 1692 a new charter was given, by which Plymouth was united to Massachusetts, and the jurisdiction of that colony over Maine and other colonies acknowledged. In the same year the witchcraft delusion, which had raged in many European countries and was then active in some, began in Salem and its neighborhood, and nineteen persons were executed by hanging, and one was pressed to death. The war of the Revolution began In MaBsachusetts, at Lexington and Concord ; but from the very beginning the other colonies sym- pathized with and supported her, and as soon as possible all' joined in efforts to achieve their independence. 110 THE POLITICAL RIGHTS OF This State is said to be naturally the least fertile of the New England States ; but skilful and laborious cultivation has much im- proved large tracts of land. It is estimated, however, that much less than half of the total area of the State is under cultivation. The State depends mainly, though not wholly, upon its manufact- ures and its commerce. In manufactures it is said to stand at the head of all the States. The water-powers afforded by the Merri- mac and smaller streams are everywhere utilized to their full extent ; and of late years steam-power has been profitably used, partly in aid of water-power, and in some instances by itself. RHODE ISLA2 stock or shares of the Bank in said as appears by a certificate thereof; and is also possessed of the promissory note of said for the sum of fifteen hundred dollars, dated the ninth day of last, and payable by instalments of five hundred dollars' in one, two, and three years therefrom; and of another promissory note of said for five hundred dollars, dated the seventeenth day of last, and payable in one year therefrom; and also of the bondi of and dated the seventh day of in the year of our Lord one thousand eight hundred and conditioned for the payment of five hundred dollars and interest, and of the principal of which- there has been paid one hundred and fifty dollars, and all the interest up to the seventh day of last. And whereas she, the said is desirous of securing the said estate, both real and personal, in the event of her marriage, to her sole use and' benefit; and for this, purpose, it, hath been agreed,- that laU the estate and property afore- said shall be granted, assigned, and transferred unto the said and to such other trustee as shall hereafter be appointed according to the provisions hereinafter expressed, to be held in trust by them for the sep- arate and sole use and benefit of her, the said and her heirs (not-vfithstanding any such coverture)', upon the terms and conditions, for the uses, intents, and purposes, under the limitations, and for and during the time, as hereinafter is expressed. A CITIZEN OF TEE UmTf:D STATES. 243 Now, this indenture witnesseth, that the said in considera- fion of the premises, and of the covenants hereinafter contained, and also of one dollar now paid to her by the said the receipt whereof is hereby abknowledged, hath granted, bargained, sold, and transferred, and by these presents doth grant, bargain, sell, and transfer, unto the said his heirs and assigns, for erer, all the real and personal estate, stocks, notes, and bond, hereinbefore described and specified: To have and to hold the same to him, the said his heirs and assigns, for ever, to and for. the several uses, trusts, and purposes, and subject to the several provisions, limitations, powers, and agreements, hereinafter limited, declared, and expressed; that is to say, to the sole use and behoof of the said and her heirs until the solemnization of any such marriage, and, from and immediately afterwards, to and for the following uses, intents, and purposes: to wit. That the said estate, both real and personal, stocks, notes, and bond, shall be held, during the natural life of the said by him, the said and by such other trustee as shall be appointed for that purpose in the manner hereinafter expressed and provided, to the sole use and separate benefit of her, the said without being liable to the debts, incumbrances, or control of any husband she may have during the existence and continuance of said trust : that said shall, from time to time, lease and demise said real estate to the best profit and advantage; and, at such time as he shall see fit and think proper, sell and dispose of all or any part of said real estate, upon the most advantageous terms,, for the interest of said and shall invest the proceeds thereof in the safest and most productive funds; and, upon payment of the capital stocks, notes, or bond aforesaid, invest the same in like manner: that he shall pay all the rents and profits of said real estate while unsold, and the clear interest and income of said funds, and also the clear interest and income of said personal property hereby assigned, and all the net profits ansing and accruing therefrom, as well as such portion of the prin- cipal as he shall judge necessary for her convenience and support, unto her, the said or to such person or persons as she shall in writ- ing, without the signature or interference of any husband, appoint, for and during the natural life of her, the said that is to say, for and during the term for which said trust shall continue, according to the provisions and limitations hereinafter expressed; and, after the decease of the said the remaining income and profit unpaid, to the child or children of the said if she shall leave any; aud, upon such decease, grant, convey, and transfer the same estate, both real and personal, and any investments in funds, unto such child or children, his and their heirs and assigns, for ever; and also grant and convey, in like manner, any real estate which may be purchased with the proceeds of said property: and, in case the said should die without issue, then to grant, convey, and transfer the same, in like manner, unto the heirs-at- law of her the said And the said for himself, his heirs, executors, and admin- istrators, doth covenant, grant, and agree, to and with the said her executors and administrators, that in case she, the said 244 THE PERSONAL RIGHTS OF should desire any real estate to be purchased -with any part of said capital stock, funds, or interest, of the estate and property hereby conveyed, and it should be deemed advantageous and proper by the said to comply therewith, then he will make a purchase thereof, and take deeds of conveyance of such estate in his own name, and will hold the same subject to the like trusts, limitations, powers, and agreements as are herein limited, declared, and expressed; and will pay over the rents and income thereof as is above provided, unless she, the said shall choose to occupy and live on the same; and, in such case, no rents shall be exacted or required of any husband of the said And in case of mental infirmity, or any other incapacity, which shall, in the opinion of the judge of probate for the county of for the time being, prevent a suitable execution of the aforesaid trusts by him, the said he does also covenant as aforesaid to grant, sell, and transfer the aforesaid estate and property, both real and personal, which shall then remain in his possession and under his control, and such other as he may have purchased in pursuance of the trusts aforesaid, unto any trustee who shall be ap- pointed by the said judge of probate for the time being (who, on the hap- pening of such infirmity or qther incapacity, is hereby authorized to make such appointment) ; to have and to hold the same to such trustee, subject to the several provisions, limitations, powers, and agreements, and upon the same intent, uses, and trusts, in like manner as held by him, said And upon the happening of the death of him the said he doth further covenant that his heirs or executors or ad- ministrators shall and will, as soon as practicable thereafter, make good and sufficient instruments of conveyance to transfer and grant the afore- said estate, both real and personal, or such parts thereof as shall then remain undisposed of, and such as may be purchased by him, said in pursuance of the trusts and intent of this indenture, unto such person as shall be appointed the trustee of the said for that purpose by the said judge of probate for the time being; who is, in thai event, authorized to make the appointment. And the said doth also further covenant as aforesaid, that upon the death of the said if he shall then be her trustee under the provisions of this indenture, he will grant, transfer, and assign all and singular the estate and property, both real and personal, which he may then hold under the grant and trusts aforesaid, unto the child or children of her, the said if she shall leave any. But no grant and conveyance, as is above provided, shall be made unto any such trustee until he shall have given bond, with suffi- cient sureties, to the judge of probate for said county for the time being for the benefit of the said and her heirs, upon condition that he, the said trustee, his heirs, executors, or administrators, shall hold the said estate and property, to be granted and transferred, subject to aU the limitations, provisions, powers, and agreements, and for the several uses purposes, and trusts, in this indenture hmited, declared, and expressed- and upon the condition that he shall at all times well and truly observe fulfil, and perform the same. And the said trustee so appointed shall thereupon have all the powers and be bound to perform all the. duties, enjoined upon and required by this indenture, of him, the said A CITIZEN OF THE UNITED STATES. 245 In witness whereof, The said parties have hereto interchangeably set their hands and seals, the day and year first above written. (^Signatures.) (Seals.") Signed, sealed, and delivered in presence of (Witnesses.) ss. 30th September, a.d. 18 Then personally appeared the above-named and and severally acknowledged this indenture to be their free act and deed. (Signature.) Justice of the Peace. DIVORCE. Divorce may be of two kinds : divorce from the bond of matri- mony, often called by the Latin law phrase a vinculo matrimonii ; and divorce from board and bed, or a mensa et thoro. A divorce a vinculo annuls the marriage altogether, and restores the parties to all the rights of unmarried persons, and relieves them from all the liabilities which grew out of the marriage, except so far as may be provided by statute, or made a part of the decree of divorce by the courts. Thus it is a provision of some of our State statutes that the guilty party shall not marry again. And the court generally have power to decree terms of sepai-ation, as to alimony (which means the continued support of the former wife by the husband), care and possession of children, and the like ; and this decree is subject to subsequent modification. A divorce a mensa et thoro separates the parties, but leaves them still married. Tjrenerally, a woman divorced from the board and bed of her husband acquires the rights and powers, as to prop- erty, business, and contracts, of an unmarried woman ; and her husband is freed from his general obligation to maintain her, the courts having power, which they usually exercise, of decreeing such alimony or maintenance from the husband as his means and the character and circumstances of the case render proper. In England, when our forefathers came over, and, indeed, until 1857, there could be no divorce a vinculo, except by an act of Par- liament, the courts having no power to grant such a divorce ; now, however, there is in England a court authorized to grant this divorce. The New England colonists brought English law with them ; but, as we learn from Mather's Magnalia, very early in the settlement of New England the question was put to the clergy, whether adultery was a sufficient cause for a divorce. They answered that it was. The courts of law thereafter decreed divorce a vinculo in such cases ; and this law and practice became universal in this country. For 246 THE PERSONAL RIGHTS OF many years, however, a divorce a vinculo was granted for no other cause than adultery, the law being made to conform to what was regarded as the positive requirement of Scripture. And a divorce a mensa et thoro was granted for other sufficient causes. Gradually the severity of the rule as to divorce a vinculo was modified, and this di- vorce was permitted for the causes for which divorce a mensa et thoro had been formerly granted. These are mainly desertion,' cruelty, and a sentence to long imprisonment. The law and practice in this matter differs somewhat in the different States, being precisely alike in no two of them. In some of them the facility of obtaining a divorce from the bond of matrimony has certainly been carried quite far enough. In nearly if not quite all the States desertion for a longer or shorter period, sometimes called aband(}nment, is a ground of divorce. Three years is a common period. Mere absence is not enough, as the desertion must be wilful. In California it is held that absence for a sufficient period implies desertion, unless it be explained. Generally there must be positive proof of the intention to desert. Hence it has been sometimes held that an agreement to separate, either express or inferrible from conduct or language, pre- vents a decree of divorce. So would conduct which would natu- rally lead to a separation. But if after such agreement to separate there is an honest desire on either part for a restoration of conjugal relations, and the desire is properly expressed and manifested, and is denied or refused by the other party, the earlier consent to sep- aration does not bar or prevent the divorce. A refrisal to accom- pany the husband in a change of residence, if the refusal were made for good reasons, would bar him from obtaining a divorce on account of separation. But if the refusal were not reasonable, it would bo a desertion. As to the cruelty for which the divorce would be granted, while it seems to be generally held that it must be a cruelty which injuriously affects " life, or limb, or health," it is also held that this may be by any treatment, or even by mere words, which are such as may harm the health. In practice, the courts use proper precau- tions to prevent a divorce from being obtained by connivance or collusion ; and it will not be granted merely upon the consent or the absence of defence of the party charged, but only on proof of the facts for which the divorce is prayed for. Nor will it be granted if there has been a condonation by the petitioning party. The general meaning of condonation, as an English word, is for- giveness, but it has, as a law term, and used in this connection, a technical meaning ; it is, forgiveness proved by the continued co- habitation of the parties after the guilt of the defendant is made A CITIZEN OF THE UNITED STATES. 247 known to the petitioner. It would seem only just to apply this rule with much less severity to the wife, who may be constrained for many reasons to continue for a time with the guilty husband ; whereas a husband is under no such necessity, and should renounce all cohabitation with a wife whom he knew to be an adulteress ; and it is well settled that a disregard of this requirement would bar his application for divorce. BOOK THIRD. THE PROPERTY RIGHTS OE A CITIZEN OP THE UNITED STATES: HOW TO EXERCISE AND HOW TO PRESERVE THEM. BOOK THIRD. THE PROPERTY RIGHTS OF A CITIZEN OF THE UNITED STATES. CHAPTER I. EMINENT DOMAIN. In this country all property is lield subject to the right of eminent domain. This is the name given in law to the right of the sovereign to take private property for public purposes. This right belongs in this country, first, to the United States; and, secondly, to each State : but the right of each State is confined to property "within its boundaries. To this right there are but two limitations, but they are very important. One of these is, that the property must be taken for public pui-poses; the second is, that full and adequate compensation must be made for the property so taken. Both of these conditions are essential, and only when both exist together can private property be lawfully taken. It follows, there- fore, that if there be no public necessity there is no public right; and that if property be taken by the sovereign without such neces- sity, as there is no public right, land taken by the sovereign, where no such necessity exists, is unlawfully taken, although full and ade- . quate compensation be made. And, on the other hand, if land be taken by the sovereign because of such necessity, and for public pui'poses, it is unlawfully taken, unless fall and adequate compensa- tion be made. It is not, however, necessary that this compensation should be given at once when the land is taken ; it is enough if the law pro- vides the means by which the owner of the land may be sure of obtaining compensation : and it has been well said, that it must be as absolutely certain that the compensation will be adequate, and will be received, as that the land is taken. In all our States there are statutory provisions on the subject, by force of which the value of the property taken is ascertained by commissioners or a jury, under the direction of the court, and payment made. 252 THE PROPERTY RIGHTS OF __^ * It should be said, however, that this right to compensation is confined to him whose property is taken, and does not extend to him who is indirectly damaged by the taking or the use of another's property. As, for example, if the legislature of a State, by the exer- cise of its right of eminent domain, gives to a railroad company the right to take and use certain land for the construction of its road, the owner of the land must be compensated. But if the owner of a mill near by is injured by the diversion of his mill-stream from its former course by what the railroad company does, he cannot demand compensation. By far the most frequent exercise of the right of eminent domain is by the legislature of a State granting to a road, or rail- I'oad, or bridge company, the right to take land for their purposes ; these being deemed public purposes, although resulting in proiit to individuals. CHAPTER 11. THE ACQUISITIOJS" OF PEOPEETY. Property may be acquired in either of six ways. First, by inheritance. This takes place when a man or woman possessed of property dies intestate (or without a will) ; then the heirs or next of kin take it, in the proportion which the law points out. K it be personal property, — that is to say, not land, or some- thing affixed to the land, — they take it through the instrumentality of administration. Second, by will. When a person possessed of property makes a will, those to whom he devises or bequeaths his property (" devise " being applied to real estate, and " bequeath " to personal estate) take it either from the executor appointed by the will, or, if there be no exeoutoi', by an administrator, with the will annexed. Third, by purchase and sale. Fourth, by hiring. Fifth, by gift. Sixth, by finding. Each of these will now be considered in its turn. A CITIZEN OF THE UNITED STATES. 253 CHAPTER III. THE DISTRIBUTIOI^' OF THE PROPERTY OF AJN" INTESTATE. If a person dies without a will, and possessed of real property, his heirs take it, under the laws of the several States which provide for this matter, and they are called statutes of descent or of inheri- tance. The great difference hetween the law of this country on this subject and the law of England, being what is termed the right of primogeniture, which prevails there and not here. By this right the eldest son takes all the land of an intestate. In this country the land is equally divided among all the heirs, and it is the business of the statutes above mentioned to detei-mine who they are, and what proportions they take. These statutes differ somewhat in the dif- ferent States, but are substantially alike, and may be said to provide, generally, in the following manner : — First. If the deceased leaves children, his real property goes to them, and to the issue of any deceased child by right of represen- tation, in equal shares. The meaning of taking by representation is this : the issue of a deceased child take his or her parent's share only ; thus, if a man dies leaving three children living, and had a fourth child who is dead, and who left four children who are living, the property will be divided into four equal parts, one of which each child takes, and the four children of the deceased child divide among them the remaining part, each one of them getting a sixteenth of the whole. By " issue " is meant all lawful lineal descendants. ' Second. If the intestate leaves no living child, then the property goes to all his other issue or lineal descendants. If all these descendants are of the same degree of kindred to the intestate, — that is, all grandchildren or great-grandchildren, — they share the property among them equally; but if they are in different degrees of kindred, — as, if some were grandchildren and others great-grandchildren, or still further off, — they take by the right of representation ; that is, the estate is divided into as many shares as there are grandchildren and deceased children leaving issue, and the great-grandchildren take the share which would have come to their deceased parent. Third. If the intestate leaves no issne, then the real property goes to his father. 254 THE PROPERTY RIGHTS OF Fourth. If he leaves neither issue nor father, then it goes in equal shares to his mother, brothers and sisters, and to the children of any deceased brother or sister by a right of represen- tation. Fifth. If he leaves no issue, no father, no brother nor sister, living at his death, and no issue of a deceased brother or sister, then it all goes to his mother. In some States it all goes to his mother, if there be no issue, nor father, nor brother, nor sister of the intestate, and the issue of a deceased brother or sister takes nothing. Sixth. If he leaves no issue, and no father, mother, brother, nor sister, then the estate goes to the next of kin who stand in an equal degree of nearness to himi Seventh. The statutes of descent usually contain various minute provisions for possible circumstances ; but of these we do not think it necessary to speak. If the intestate leaves a widow and no kin- dred, in some States his whole estate goes to his widow ; and if the intestate be a mamed woman and leaves no kindred, her estate* goes to her husband. Eighth. If the intestate be a woman, whether married or un- married, her real estate goes- as above stated, excepting that the husband, if a child had been born to them who might have inherited the estate, takes the use, rents, and profits of real estate for his life. He is said in law to hold the estate as a " tenant by the curtesy." Ninth. If the intestate leaves no widow or husband, and no kin- dred, his- or her estate shall escheat (or go) to the Commonwealth. THE DISTRIBUTION OF PERSONAL ESTATE. , This is regulated in the several States by what are called the statutes of administration. Generally the real property of an intes- tate goes at once to those who are heirs by law. The personal property all goes to an administrator upon the estate, and by him iS' distributed as the law directs. This distribution of personal estate was once a very different thing from the distribution of the real estate ; but now it is distributed in much the same way, and is goveriied' by the same rilles, as above stated, for the inheritance of real prop- erty. The principal differences are these : A widow is entitled to her dower of the real property ; that is to say, she has for her life one-third part thereof, and the use, income, or rents thereof. But of the personal estate there is no dower: instead thereof the widow, takes in full property one-third part of the personal estate ; and if there be no issue, the widow takes generally one-half, and in some Stales the whole. A CITIZEN OF THE UNITED STATES. 255 If the iatestate was a married woman leaving issue, in many of the States her personal property goes to them ; in others of the States it goes to her husband, the issue not taking. If the hnsband dies leaving a widow and no issne, she takes generally one-half of the personal estate. Of late years the property relations of husband and wife have been much changed in diflFerent States ; and we refer to our former chapter on the subject of Husband and Wife for a succinct account of them. CHAPTER IV. OF THE DISPOSAL OF PEOPEETY BY WILL. SECTION I. OF WILLS. Few persons are aware how difficult it is to make an unoh- jectionable will. There is nothing one can do, in reference to which it' is more certain that he needs legal advice, and that of a trustworthy kind. Eminent lawyers, not practised in this peculiar branch of the law, have often failed in making their own wills, both in England and in this country ; and there are seldom blank forms for wiUa printed and sold, as there are for deeds and leases. Never- theless, it may happen that one is called upon to make his own will, or a will f60 THE PROPERTY EIGHTS OF Then follows whatever disposition the testator chooses to make, stating and describing it as he would if it were a will, and execut- ing it and having it attested in the same manner as if it were a will, excepting that instead of calling it a will, wherever that word occurs, he says " codicil " instead of " will." We add to this two forms of wills, hoth of which were drawa by skilful lawyers, and disposed of large estates. (16.) Be it remembered, That I, of the cily of in the State of . Esquire, do make this my last will and testament, in manner following. That is to say, — I order and direct that all my just debts shall be paid with convenient speed. I give unto Mr. of said city, merchant, the amount of mon- eys due and owing from him to me, according to the tenor and effect of four promissory notes signed by him, viz : one dated October 16, 1819, for ninety-six hundred and eighty dollars ; one dated August 9, 1822, for five thousand dollars; another dated August 9, 1822, for forty-five hun- dred and fifty-eight :^i^ dollars; and another dated August 15, 1822, for fifty-six hundred dollars : and 1 order said four notes to be cancelled. To the wife of said I give an annuity of six hundred dollars, to be paid her in two equal and half-yearly payments of three him- dred dollars each. It is my will, and I order and direct that a trust fund of ten thousand dollars shall be raised out of my estate and invested at interest, the income and produce, of which trust fund I give unto of single woman, to be paid to her half-yearly, during her natural life. And at the decease of the said the principal sum or trust fund shall be paid to and among such persqn and persons in such shares and portions as she, the said by any writing by her signed in the pres- ence of two or more credible witnesses, shall give, direct, and appoint. And in default of such appointment, then said trust fund, or principal sum, shall go, as the residue of my estate, to the residuary legatee herein- after named. I also direct that another trust fund of ten thousand dollars shall be raised out of my estate and invested at interest. And I give the interest and produce of this trust fund, when and as it accrues, unto the wife of It is my will that the income of this fund, or principal sum shall, during the natural life of said either be paid into her proper hand, or upon her order or receipt, signed by her alone, notwithstanding her coverture. And I declare that neither the principal nor income of this fund shall be subject to the control, debts, or engagements of the present or any future husband of said the same being intended for her sole and separate use. At the decease of said I give said principal sum or trust fund .to the issue of said and in default thereof to such A CITIZEN OF THE UNITED STATES. 261 other person or persons as she, by a last will, or any writing in the nature of a last will, shall give, direct, or appoint the same ; and in default of such appointment, it is my will that said trust fund or principal sum shall be disposed of and pass as part of the residue of my estate. I give to an annuity of three hundred dollars, to be paid by two equal sums to said half-yearly, during her natural life. To of in' the county of widow, I give an annuity of one hundred dollars, to be paid her, during life, in quarter- yearly payments. I also give unto of in the county of widow, an annuity of two hundred dollars, to be paid in quarter-yearly payments during her life. I order my executor, hereinafter named, to pay of either in money, or such articles as his comfortable maintenance may re- quire, fifty dollars annually during his life, at such times as said executor shall think proper. To wife of of I give an annuity of one hundred dollars, to be paid during her life quarterly. To wife of of I give three hundred dollars, and direct three notes, held by me, signed by her husband, for one hundred dollars each, to be cancelled. To wife of of there shall be paid in money, or delivered in articles necessary for her support, at the discretion of the executor of this my will, one hundred and fifty dollars annually, during her life, at such time and in such portions as he shall choose. I give to son of one thousand dollars, and order that he shall be charged with such amount of moneys as he shall be my debtor for, upon promissory notes, at my decease. I devise the wooji-lot in which I bought of one to wife of above named, to hold to her for life, the remainder I give to the child or children of said who shall survive her, bis, her, or their heirs for ever. If shall be a niember of my family at the time of my decease, she shall and may continue to reside iii my dwelling-house and partieipate in the use of the stores and furniture, in common with others of my family, for the term of six months thereafter. It is my will that a debt of three hundred and thirty-two dollars, due me from of shall be cancelled. To each of those of the following named persons, who shall be in my gervieeat tiie time of my decease, I give one hundred dollars, viz. : My will is that all annuities hereinbefore given shall take date from the day of the probate of this will; and all legacies, not annuities, shall be paid within eight months from the same period. It is my will that all the capital or principal sums which shall be requisite to yield the several annuities above mentioned may, by my exec- utor, be paid to to be held and managed by said corporation^ 262 THE PROPERTY RIGHTS OF as trustees under this ■will: or, if the said executor and the parties bene- ficially interested therein shall so elect, said capital or principal sums, or any of them, may be placed in the hands of such trustee or trustees as shall, upon application to the Supreme Court of sitting in chan- cery, be appointed to receive the same, and perform this, my ■will, in that behalf. I hereby authorize and empo'wer ■whoever shall assume the execution of this ■will, to make sale of, and convey any parcel or parcels of real estate, of which I may die seised, for the purpose of raising any and all such suma of money as shall be required for the trust funds, annuities, and legacies hereinbefore directed to be created, given, and bequeathed.- All such sales shall be made by pubUc vendue, after notice thereof shall have been given in t^wo or more newspapers printed in the city of for the term of fourteen days at least prior to such sales being made. All the residue of my estate, real, personal, and mixed, wheresoever it may be found, and of whatsoever it may consist, I give and devise unto to hold to him and his heirs for ever. I hereby revoke all wills by me heretofore made, and constitute the said executor of this my last will. In witness whereof, I, the above-named testator, have hereunto set my hand and seal, this twenty-sixth day of in the year of our Lord eighteen hundred and [L. S.] Then and there signed, sealed, and published by the tes- tator, as and for his last will, in the presence of us, who, at his request, in his presence, and in presence of each other, have hereto set our names as witnesses. (17.) Be it kemembeeed, That I of in the county of and State of Esquire, hereby revoking all former wills by me made, do make this my last will and testament, in manner following. That is to say,-^ I direct that my just debts be paid with all convenient speed. To my wife I give and bequeath my library; my horses and carriages; my family stores; all my household furniture wherever found, excepting my silver plate; all my pictures; and also the sum of two thou- sand dollars, which shall be paid to my said wife within sixty days from the probate of this will. It is my will that the debt due to me from and the interest due and to become due thereof, be suffered to remain unpaid, until her marriage or death (whichever event shall first happen), provided she shall, from time to time, so acknowledge said debt, that the same shall not be affected by the lapse of time, or the " Statutes of Limitation;" and pro- vided, also, that she shall consent that the interest accruing on said debt be computed by annual rests. All the rest, residue, and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath mito and all A CITIZEN VF THE UNITED STATES. 263 of the city of their successors and assigns, and the 'survivor of them, his heirs and assigns, for ever ; but in trust, nevertheless, for the performance of this my -will concerning the same. That is to say, — 1st. To deliver and transfer to my daughter when she shall attain the age of twenty-one years, my tea-set of chased silver, gilt, and my set of gilt teaspoons; and in case my said daughter shall die during her minority, then said tea-set and spoons shall be given to my son ■when he attains majority; but in case of his death before that period, the said tea-set and spoons shall, at the decease of the survivor of them, the said and be given to the eldest of my other children who shall then be living, and shall attain the age of twenty-one years. But it is my will that my said wife shall be allowed to use said tea-set and spoons until such event shall happen, if she shall so long remain my widow. 2d. To permit my said wife to use all my other silver plate during her widowhood; and on her death or marriage, whichever shall first happen, to divide the same among my children who shall then be living. 3d. To pay over the interest and income which, prior to the fifth day of May that will be in the year eighteen hundred and fifty-six, shall be declared on the seventeen' shares in the Bank, which now stand in the name of my former wife, to of to be by him appropriated to the support of and sisters of my said former wife in such shares and proportions as he may think expedient. And in case of the decease of said then such appropriation shall be made by the trustees acting for the time being under this will; provided, however, that if said trustees shall think it expedient to apply said interest and income towards the support and maintenance of my said daughter they shall appropriate the same to that object in preference to the purposes before mentioned. 4th. To transfer and convey said shares on said fifth day of May that will be in the year eighteen hundred and fifty-six, to my said daughter or to her issue in case of her decease. If neither my said daughter nor her issue shall then be living, then said shares shall go to, and be divided among, the heirs of my said former wife, in such shares and proportions as said trustees shall, with the concurrence of said (if living), think expedient and proper ; or the same may be transferred to trustees for the benefit of said heirs. 5th. To pay to my said wife during such time as she shall remain my widow, the whole interest and produce of the remainder of the trust premises when and as the same accrues and shall be received; and it is my will that my said wife shall apply such portion of said interest and produce as shall be just and proper to the education and the support of my children ; and if said interest and income shall not be adequate for the comfortable maintenance of my said wife, and the education and the sup- port of my children as aforesaid, I order and direct the trustees or trustee who shall for the time being be acting under this will, to appropriate such portion of the principal of said remainder of the trust premises to the pur- poses aforesaid as shall be requisite and necessary. If my wife desires to occupy either of the dwelling-houses of which I may die the owner, I direct said trustees or trustee to permit her to do so. 264 THE PROPERTY RIGHTS OF 6th. To «ach of my sons attaining majority in my wife's lifetime, and requesting a sum of money to enable him to commence business, an advancement not exceeding the sum of six thousand dollars shall be made; and an advance not exceeding the sum of four thousand dollars shall also be made to each of my daughters respectively, on the day of her marriage, having the consent of their mother thereto; which advancements, shall be charged to each child receiving the same, and be accounted for in the final distribution of my estate as parts of their shares respectively. At the death or marriage of my said wife (whichever event shall first happen), the whole principal sum or trust fund, excepting said seventeen shares in the Bank, shall be conveyed, distributed, and paid over to and among my children, or the issue of a deceased child, who shall take by representation its parent's share; provided, however, that the shares to which my daughters shall be respectively entitled shall be so conveyed and passed to a trustee or trustees, to be nominated by my said daughters respectively, and appointed by the judge of probate having jurisdiction over this will, as that the income and produce of such shares or share shall be secured to the sole and separate use of lay daughters or daughter during their respective lives; and so also that the capital or principal fund shall, at the decease of my said daughters respectively, go to their respective issue; and in default of such issue to such person or persons, for such estates and interest therein, and in such way and manner as by a last will, or any instrument in the nature of a last will, my said daughters shall respectively give and appoint the same; and in default of such appoint- ment, the same shall go to and be divided between my issue; and in default of issue, to his heirs and assigns for ever. The share of either daughter in a deceased sister's fund to be added to the fund held for the sm-vivors or survivor. In case neither of my childi-en nor their issue shall be living at the marriage or the death of my said wife as aforesaid, then said principal or trust fund (excepting said seventeen shares as aforesaid) shall go to his heirs and assigns for ever. My lot at shall be and remain a family burial-place for all my lineal descendants and those persons with whom they shall intermarry: and it is my will that no disposition be ever made of said lot which is incon- sistent with this provision; which shall apply also to my tomb, No. in the burying-place of I give and confer to and upon the trustees or trustee acting under this will, full power and authority, by public sale or private contract, in such way and manner, and at such price or prices, as they or he shall deem expedient, to make sale of and convey any and all the real estate of which the trust premises are or shall be composed; and to do all needful acts requi- site to convey a title thereto to a purchaser or purchasers; and to invest the proceeds arising from such sale or sales in other real estate or in per- sonal property, with like power of disposition over any and all the real estate in which the trust premises, or any part thereof, shall be invested. And it is my will that said trustees shall not be answerable for any losses or damage to the trust premises, unless the same shall happen by their own wilful default or negligence ; nor shall either of them be answerable for the others or other of them, but each for himself only, and then only A CITIZEN OF TEE UNITED STATES. 265 for such portion of the premises as shall actually he received hy him: and I direct that said trustees shall not be required to give bonds for the faithful execution of the trusts hereby reposed in them. If by refusal to accept said trusts, by resignation, death, removal, or incapacity to act, the number of trustees shall at any time be reduced to one, it is my will that one or more trustees shall be appointed to fill such vacancy: and I authorize my ■wife, if living, in conjunction with those of my children who shall have attained majority, to appoint and nominate such new trustees or trustee, with the concurrence of the judge of probate for the time being having jurisdiction over this will; and in case of their neglect or refusal so to do, I refer the appointment to said judge of probate, or to the Supreme Judicial Court sitting in chancery; and such new trustees or trustee shall have and possess all and the like interest, power, and direction in and over the trust premises, as if he or they had been originally named and appointed in and by this instrument (except the exemption from giving bonds for the due execution of said trusts). I appoint the said and my wife guardians to each of my children during their minority; and I direct that neither be required to give bonds for their fidelity as such guardians. I constitute and appoint the said the executor of this will, which shall operate upon all real estate of which at the time of my decease I shall be owner. In witness whereof, I, the said ' have hereunto set my hand and seal, this second day of January, in the year eighteen hundred and forty-seven. (Name.) (Seal.) Then and there signed, sealed, published, and declared by. the said as and for his last will and testament, in presence of us who, at his request, in his presence, and in presence of each other, have hereto subscribed our names as witnesses. SECTION IV. EXECUTORS AND ADMINISTRATORS. An execntor is a person named in the viU of a deceased person, to settle his or her estate. There may be one or more; and they may be male or female. An administrator is one appointed by the court to settle the estate of a deceased person. If the deceased left a will, but did not .appoint an executor, or the appointed executor refuses to act, or resigns, or dies, or for any reason fails to act, an administrator is appointed by the court, " with the will annexed." The husband of a deceased wife, or the wife of a deceased husband, has generally the right to be appointed administrator ; after them the next of kin, in the ord,er of relationship. But the courts have some discretion in the matter. 266 TEE PROPERTY RIGHTS OF If a testator wishes that Ms executor, or that trustees whom he appoints by his will, should not give bonds, he should say so, in some such words as these: "I desire and direct that neither my executor nor ray trustees herein named should be required to give bonds." Then other trustees appointed by the court do give bonds. Executors and administrators act as the personal representa- tives of the deceased, having in their hands his means, for the pur- pose of discharging his liabilities, or executing his contracts, and of carrying into effect his will, if he have left one ; and in general they are liable only so far as these means (called assets) in their hands are applicable to such a purpose. But they may become personally liable ; and a clause in the statute of frauds (which see) refers to this subject, making them not liable to pay any debt out of their own means, unless they give a promise to that effect, in writing, signed by them. In this country the judicial officer or judge who has the charge of the settlement of estates, of the proof of wills, and of proceedings under them, is generally called the judge of probate. But in some States he is called surrogate, ordinary, register or registrar of wills or of probate, judge of the Orphan's Court, &c. His powers and duties are very similar all over the country. From his decrees or decisions an appeal may generally be taken, by a party who thinks himself aggrieved, to the Supreme Judicial Court. The judge of probate is usually a county officer, and his jurisdiction is then limited to his county. If an executor or administrator receives, as such, a promissory note or bill of the deceased, and indorses the same with his name, without adding " executor" or " administrator," he is liable upon it personally. If he makes a note or bill, signing it " as executor," he 's personally liable, unless he expressly limits his promise to pay by the words, " out of the assets of my testator," or, " if the assets be sufficient," or in some equivalent way ; but a note or bill so qualified would not be negotiable, because on condition. If an executor or administrator submits a disputed question to arbitration in general terms, and without an express limitation of his liability, and the arbitrators award that he shall pay a certain sum, he is liable to pay it whether he has assets or not. But if the award be merely that a certain sura is due from the estate of the deceased, without saying that the executor or administrator is to pay it, he is not precluded from denying that he has assets. Where the will of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so, and enforce the contract. But where an executory contract is of a strictly personal A CITIZEN OF THE UNITED STATES. 267 nature, — as, for example, with an author for a specified work, or with an artist for a painting, — the death of the writer before his book is completed, or of the artist before the painting is finished, absolutely determines the contract, unless what remains to be done — as, for example, in the case of a book, the preparing of an index, or table of cqntents, «fcc. — can certainly be done as well, and to the same pui-pose and efiect, by another. If executors or administrators pay away money of the deceased by mistake, or enter into contracts for carrying on his business for the benefit of his personal estate, and to wind up his afiairs, they may sue on such contracts either in their individual or their repre- sentative capacities ; but they should sue in the latter capacity, in order to avoid a set-ofl' against them of their individual debts. The title of an administrator does not ezist until the grant of administration. Then it goes back to the death of the deceased ; but only in order to protect the estate, and not for any other pur- pose. And if an agent sells goods of the deceased after his death and in ignorance of his decease, the administrator may adopt the contract, and sue upon it for the price of the goods. On the death of one of several executors, either before or after probate, the entire right of representation survives to the others. But if an administrator dies, or a sole executor dies, no interest and no right of representation is transmitted to his personal represent- atives. An executor derives his authority &om the will, and his duties begin at the death of the testator. They may be stated thus : — 1. He should cause the deceased to be buried in a suitable manner. 2. He should offer the will for probate as soon as he can with a reasonable regard to his convenience; and in proving the will, filing bonds, giving notice, making and returning an inventory, and the like, he must conform to the law of the State and the rules of the probate ; and he will obtain at the oflSce sufiicient information on all these points. 3. He must collect the property, and, after paying the debts, he must distribute or dispose of the remainder as the will directs. 4. He must render his account from time to time, until a final settlement of the estate is made, and will be directed at the probate office when and how to file his accounts. An administrator derives his authority from the court. But his duties are then substantially similar to those of an executor, excepting that he must distribute and dispose of the estate as the law requires, as he has no will to direct him unless he is an adminis- trator with the will annexed. The debts must be paid in a certain 268 THE PROPERTY RIGHTS OF order. This is not precisely the same in all the States ; but it is very generally as follows : 1. Funeral expenses, charges of the last sickness, and probate charges ; 2. Debts due to the United States ; 3. Debts due to the State in which the deceased had his home; 4. Any liens attaching to the property by law ; 5. To creditors gen- erally. If the estate is insufficient to pay all the debts due &oni it, as soon as the executor or administrator finds this to be the case, he should represent the estate as insolvent at the Probate Court, and thereafter follow the requirements of the law of the State and the rules of the Probate Office in reference to insolvent estates of deceased persons. In most of the States all the necessary forms or instruments are given to applicants at the Probate Office. It may, however, be convenient to know how to ftame some of the most necessary forms ; and I give below those which, with such obvious changes as circum- stances require and indicate, may be found sufficient. FOBMS ANNEXED TO THIS SECTION. (17 a.) Petition to be appointed executor without further notiee. (17 6.) Executor's bond. (17 c.) Bond of executor, who is also residuary legatee. (17 rf.) Administrator's bond. (17 e.) Administrator's petition for leave to sell a part of the real estate. (17/.) Bond of administrator licensed to sell real estate. (17 g.) Account of executor. (17a.) PETITION TO BE APPOINTED EXECUTOR WITHOUT FURTHER NOTICE. To the Honorable the Judge of the Probate Court in and for the County of Respectfully represents Qname of the executor), of (residence of Executor), that (name of testator'), who last dwelt in (residence af testator), died on the day of in the year of our Lord one thousand eight hundred and possessed of goods and estate remaining to be administered, leaving a widow, whose name is (name of the widow), and as his only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows, viz. : (here give all the names, stating the relationship of each person). That said deceased left a will and a codicil, herewith presented, wherein your peti- tioner is named executor. A CITIZEN OF THE UNITED STATES. 269 Wherefore your petitioner prays that said will and codicil may be proved and allowed, and letters testamentary issued to him. Dated this day of a.d. 186 ( Signature of executor.) The undersigned, being all the heirs-at-law and next of kin, and the only parties interested in the foregoing petition, request that the prayer thereof be granted without further notice. (^Signatures of heirs.) [Minors mast be so designated^ and the names of their guardians given, if they have any. If any party is a married woman, her husband's name must be given.] (17 S.) EXECUTOR'S BOND. Know all men by these presents. That we (name of the executor), as principal, and (names of his sureties), as sureties, and all within the Com- monwealth (or State) of are holden and stand firmly bound and obliged unto judge of the Probate Court in and for the county of in the full and just sum of dollars, to be paid to said judge and his successors in said office; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, exec- utors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and sixtyr The condition Of this obligation is such. That if the above- bounden (name of the executor) , executor of the last will and testament of (name of the testator), late of (residence of testator), deceased, testate, shall, — First, Make and return to the Probate Court for said county of within three months from his appointment, a true inventory of all the real estate and all the goods, chattels, rights, and credits of said testator, which are by law to be administered, and which shall have come to his possession or knowledge; Second, Administer according to law and the will of said testator all the goods, chattels, rights, and credits, and the proceeds of all the real estate that may be sold for the payment of debts or legacies, which shall come to the possession of said executor, or of any other person for hitn; and, ^ Third, Render upon oath a just and true account of his administration within one year, and at any other times when required by said court: then this obligation to be void; otherwise to remain in full force and virtue. (Signature of executor.) (Seal.) (Signature of surety.) (Seal.) (Signature of surety.) (Seal.) Signed, sealed^ and delivered in presence of ss, 186 Examined and approved. (Name of Judge.) Judge of Prolate Court. 270 - THE PROPERTY RIGHTS OF (17 c.) BOND OF EXECUTOE, WHO IS ALSO ' RESIDUARY LEGATEE. Know all mkn by these presents, That I (name of the executor), in the Commonwealth (or State) of * am holden and stand firmly bound and obliged unto Judge of the Probate Court in and for the county of in the full and just sum of dol- lars, to be paid to said judge and his successors in said office; to the true payment whereof I bind myself and my heirs, executors, and administra- tors, by these presents. Sealed with my seal. Dated the day of in the year of our Lord one thousand eight hundred and sixty- The condition of this obligation is such. That if the above- bounden (name of executor), executor of the last will and testament of (navie of testa'-or) , late of (residence of testator) , deceased, testate, being residuary legatee in said will, shall pay all debts and legacies of said testa- tor, and such suras as may be allowed by said Probate Court for necessaries to the widow or minor children of said testator, then this obligation to be void, otherwise to remain in full force and virtue. (Signature.) (Seal.") Signed, sealed, and delivered in the presence of ss. 186 Examined and approved. (Name of judge.) Judge of Probate Court, (lid.) ADMINISTRATOR'S BOND. Know all men by these presents, That we (name of administrator), as principal, and (name of sureties), as sureties, and all within the State of are holden and stand firmly bound and obliged unto judge of the Probate Court in and for the county of in the full and just sum of dollars, to be paid to said judge and his successors in said office; to the true payment thereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and sixty- The condition op this obligation is such. That if the above- bounden (name of administrator) , administrator of the estate of (name of deceased), late of (residence of deceased), deceased, intestate, shall, — * If sureties are required, they should be added here, as in preceding Form, A CITIZEN OF THE UNITED STATES. 271 First, Make and return into said Probate Court, -within three months after his appointment, a true inventory of all the real estate, and all the goods, chattels, rights, and credits of said deceased, ■which have or shall come to his possession or knowledge; Second, Administer according to law all the goods, chattels, rights, and credits of said deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which shall at any time come to the pos- session of said administrator, or of any other person for him; Third, Render upon oath a true account of his administration, within one year, and at any other times when required by said court; Fourth, Pay any balance remaining in his hands, upon the settlement of his accounts, to such persons as said court shall direct; and Fijih, Deliver the letters of administration into said court, in case any will of said deceased is hereafter duly proved and allowed: then this obli- gation to be void ; otherwise to remain in full force and virtue. (Signature of administrator.') (Seal.) (Signature of surety.) (Seal.) (Signature of surety.) (Seal.) Signed, sealed, and delivered in presence of 186 Examined and approved. (Name of judge.) Judge of Prolate Court. (17 e.) ADMINISTRATOR'S PETITION FOR LEAVE TO SELL A PART OF THE REAL ESTATE. To the Honorable the Judge of the Probate Court in and for the County of Respectfully bepresents (name of the administrator) , as he is admin- istrator of the estate of (name of the deceased), late of (residence of the deceased), in said county, deceased. That the debts due from the deceased, as nearly as they can now be ascertained, amount to $ And the charges on administration to Amounting in all to • . $ That the value of the personal estate in the hands of the peti- tioner (exclusive of the widow's allowance) is ... . $ And that the personal estate is therefore insufficient to pay the debts of the deceased and the charges of administration, by the sum of $ Wherefore your petitioner prays that he may be licensed to sell so 272 THE PROPEnTY RtGHTS OF much of the real estate of said deceased as will raise the last-mentioned sum, for the payment of said debts and charges of administration. Dated the day of a.b. 186 (^Signature.') The undersigned, being all persons interested, hereby assent to the sale, as prayed for in the foregoing petition. (Here should foUow the signatures of the widow and all the heirs.) [If the petitioner wishes the court for special reasons to direct what specific pari of the real estate shall be sold, he must set forth the value, description, and condition of the estate, or of such part as he proposes to sell. Or he may say that a partial sale would injure the estate, and ask a license to sell the whole.] (17/.). BOXD OF ADMINISTRATOR LICENSED TO SELL REAL ESTATE. Know all men by these presents. That we (name of person licensed) , as principal, and (names of his sureties), as sureties, and all -within the State of are holden and stand firmly bound and obliged unto Esquu'e, judge of the Probate Court in and for the county of in the full and just sum of dollars, to be paid to said judge, and his successors in said office; to the true payment whereof we bind ourselves, and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and sixty- Thk condition of this obligation is such. That if the above- bounden (name of the person licensed), administrator of the estate of (name of deceased) , late of (residence of deceased) , deceased , who has been hcensed by said court to sell real estate of said deceased, more than is necessary for the payments of debts, and charges of administration, shall account f orand dispose of according to law all proceeds of the sale remain- ing after payment of debts, and charges: then this obligation to be void; otherwise to remain.in full force and virtue. (Signature of administrator.) (Seal.) (Signature of survtffi) (Seal.) (Signature of surety.) (Seal.) Signed, sealed, and delivered in presence of ^ St. A.B. 186. Examined and approved. (Name of judge.) Judge of Prolate Court. I (nam^ of administrator), do solemnly swear, that in disposing of the real estate of (name of the deceased), deceased, which I have been licensed by the Probate Court to sell, I will use my best judgment in fixing on the time and place of sale, and will exert my utmost endeavors to dispose A CITIZEN OF THE UNITED STATES. 273 of the same, in such manner as ■will be most for the advantage of all persons interested therein. So help me God. (^Signature of administrator.} ss. 186 Personally appeared the above-named and took and subscribed the above oath. Before me, Justice of the Peace. ACCOUNT OF EXECUTOR. The first (or second or other, as the case may Je) account of (name of executor), executor of the last ■will and testament of (name of the testator), late of (residence of the testator') , in the county of deceased. Said accountant charges himself ■with the several amounts re- ceived, as stated in Schedule A, herewith exhibited . . $ And asks to be allo^wed for sundry payments and charges, as stated in Schedule B, herewith exhibited .'.... Balance < . . $ (Signature.) Executor. The undersigned, being all the parties interested, having examined the foregoing account, request that the same may be allowed without further notice. (Signatures of the widow and all the heirs and legatees.) (Then follow the schedules.) CHAPTER V. DEEDS OF LAND, SECTION I. WHAT IS ESSENTTAIi TO DEEDS CONVEYING LAND. By the statutes and usage of this country, generally, no lands can be transferred excepting by a deed, -which is signed, sealed, ackno-wledged, and delivered ; and it should always be recorded. By the old law, no instrument -was considered made until it was sealed ; then it was thought to be done, and the word deed, 18 274 THE PROPERTY RIGHTS OF ■which, literally means only something done, was given to every written instrument to which a seal was affixed ; and that is the legal meaning now. But the common meaning of the word is an instrument for the sale of lands ; and it is of this that we would now treat. What the deed should be, that is, in what words it should be expressed, we can best show by the forms appended to this chapter, and do not propose to say more about it than this. It is not safe to depart from forms and established phrases, ■which have passed before the courts so often that their exact meaning is certainly known. There are things which seem to be and perhaps are vain repetitions ; and for the usual words it may be thought that others of the same or better meaning may be substituted. Such changes may be made, perhaps, without detriment ; but perhaps, also, with ruinous results : and it is not wise to run the risk. It should be signed ; and this means, properly, that the seller or grantor should write his name in the usual way, in th6 proper place, and with ink; If the grantor cannot write his name, he may merely make his mark. It has been said that writing with a lead- pencil is enough, but it would not be safe to trust to it. The name of the grantee should be distinctly written in the proper place, in ink. Sometimes, in our large cities, an agent buys land for a prin- cipal who does not wish to be known, and the agent's name is inserted as grantee, in pencil, and the deed is so executed and acknowledged and delivered ; and some time afterwards the agent rubs his name out, and writes the name of his principal, the actual buyer, instead. But this is a very unsafe and reprehensible practice, and the deed cannot be considered satisfactory. The deed of a corporation must be signed by an agent or at- torney, who should be careful to execute it in the manner indicated in some of the forms appended. In one case, in Massachusetts, where a deed was written throughout as the deed of a corporation, and their treasurer signed it thus: "In witness whereof, I, the said C C, in behalf of the said company, and as their treasurer, have hereunto set my hand and seal" — it was held that this was the deed of the treasurer, and not the deed of the corporation, and did not transfer the lands. This is an extreme case, and the law might not always be applied with so much severity ; but it is best not to incur any such risk. So, too, the rule that a person who is to be authorized to affix the seal of another should be authorized under the seal of the principal, is so general, that, although it has impor- tant exceptions, it should always be observed. The seal is properly a piece of paper wafered on, or sealing- wax pressed on. In the New England States generally, and in New A CITIZEN OF THE UNITED STATES. 275 York, nothing else satisfies the legal requirement of a seal. In the Southern and Western States generally, a scrawl, intended for a seal, usually made by writing the word " seal " within a square or diamond, is regarded in law as a seal. If there be but one seal on an instrument, and many parties, all of whom should seal it, this seal will be taken generally for the seal of each one ; although, prop- • erly, each signer should put a seal against his own name. The deed should be delivered. If a man makes a deed, and acknowledges it, and keeps it in his possession, and dies, the deed has no efiect whatever ; no more than if the grantor had put it in ■the fire. Even where it was recorded, and then taken back by the grantor and kept by him, with words going to show that the grantor did not wish the grantee to know of it, it was held not to have been delivered. But there are no especial words or form necessary for delivery. If the deed, in any way whatever, gets into the posses- sion of the grantee, with the knowledge and consent of the grantor, it is a delivery. The grantor may deliver it by Ms agent, and it may be deliv- ered to the agent of the grantee, authorized by him to receive it. Moreover, the law permits a kind of conditional delivery. Thus, the grantor may deliver the deed to a third person, to be delivered by him to the grantee on a certain condition, or when a certain thing is done ; and when that condition is performed, or the thing is done, the deed belongs to the grantee, and takes efiect in the same way as if it had been delivered to him persoilally. In legal lan- guage, the deed is said to be delivered to the third person, as an escroio. So the grantor may put the deed in the hands of the third person, with directi6ns to give it to the grantee after the death of the grantor, provided the grantor does not reclaim it in the mean time. Then the grantor can reclaim it whenever he will, which- he cannot do after he has delivered it to the grantee; but if he does not reclaim it during his life, at his death it becomes the projjerty of. the grantee, and the law now considers that it was xlelivered to him when first delivered to that third party. So that deed is good even against creditors, provided that the grantor was perfectly solvent when he put the deed in the hands of the third party, anf) acted altogether in good faith. If a deed to a married woman be delivered either to her or to her husband, it is sufficient. As there must be delivery to the grantee, or to some one for him, so there must be assent and acceptance on his part. The law will help any evidence "tending to show such assent, by presuming in favor of the grantee's assent if the deed be wholly and only favor- 276 THE PROPERTY RIGHTS OF able to him. But not if there is money to be paid by him, or any thing important to be done by him if he accept the deed. It is usual and proper that the execution of the deed should be attested by witnesses. In many of our States two witnesses are required by statute. In New York one is enough. In the greater number, witnesses are not absolutely required by statutes, nor by strict law of any kind ; but even there it is usual and safer to have them. The witness should see the party sign ; but if the deed is signed near him, and is immediately brought to him by the gi-antor, who tells him that is his signature, and asks him to witness, this would- be sufl5cient in law. It is desirable that witnesses, when called on to testify, should remember the signature, sealing, &c. ; but it is sufficient in law that they are' certain of their handwriting, and can declare under oath that they should not have attested the execution and delivery if they had not seen it. If witnesses are dead, or inaccessible, proof of their handwriting is sufficient ; and if this cannot be offered, then proof of the handwriting of the grantor is enough. If witnesses attest the signing, sealing, and delivery, in the common form, proof of their handwriting, in case of their death or absence, is proof of the execution and delivery of the deed. The witness should, properly, be of sufScient age and under- standing, but may be a minor. He should have no interest in the deed. Hence a wife is not a proper witness of a deed to her hus- band. But the courts, and especially a court of equity, would sel- dom permit a deed to be avoided through the incompetencis of a witness, if there were no suspicion of wrong. Generally a deed is valid as between the parties, although not acknowledged ; but, to entitle it to be recorded, it must be acknowl- -edged. For this purpose the grantor must go before a person qual- ified by law to receive acknowledgments, and exhibit the deed to him, and acknowledge it as his free act and deed ; and the person receiving the acknowledgment then certifies that he has received this acknowledgment, under the proper date. In general, an acknowledgment may be made before any jus- tice of the peace, or a commissioner appointed for the State in which the land to be conveyed is situated, if the deed is executed in another State, or any consul or consular agent of the United States if the deed is executed in a foreign country. This acknowledgment must be made, or the deed cannot be recorded. And the deed is invalid, as notice, if the acknowledgment is defective, although it is actually recorded. A CITIZEN OF THE UNITED STATES. 277 Formerly, all the grantors acknowledged the deed; and this continues to be usual in most places, and is the safest practice. But, in some places, it "is now sufficient in law if either of the grantors acknowledge it. In many States, if. a wife, separately or joining with her hus- band, conveys away her land, a particular form and mode of ac- knowledgment, and a separate examination of the wife are required, in order to ascertain that she does it of her own free will ; and any such directions or requirements should be followed with great care. The forms added to this chapter will show how this is done. An aftorney, A B, who executes a deed for another, C D, should acknowledge it as " the free act and deed of the said C D," and not as his jown. The justice taking the acknowledgment must be careful to state it in his certificate, exactly as it was made before him. In some of our States recent laws have in effect required the assent of the wife to a transfer of the husband's real estate ; not merely to convey her dower, but to pass the property to the grantee. We do not enumerate or specify these States here, hav- ing given previously an abstract of the law of husband and wife in all the States. In all our States we have the excellent system of registering (or recording, as it is more frequently called) all deeds of land in the public registers of the county in which the land lies. This was adopted for the purpose of giving certainty and notoriety to title, and it works admirably well. The investigation of title is usually easy to those accustomed to this mode ; and every purchaser of land should ascertain that the deed will give him good title before he takes it. The law generally requires that a deed of lands should be acknowledged and recorded, to have foil effect; but judicial de- cisions have everywhere qualified the force of these words, and in some instances the language of the statutes varies. But the rules of law in reference to the recording are quite uniform in all the States, and are as follows : — In the first place, every acknowledged deed is considered as recorded as soon as it is in the hands of the recording officer ; and therefore he generally minutes upon it the day, hour, and minute when it was reeeived by him. This may be very important ; for if A makes his deed and delivers it to B, who presents it for record at five minutes past noon, and C, a creditor of A, attaches the same estate at four minutes past noon of the same day, the grantee loses' the land and the creditor gets it ; but the gi-antee saves it, if he presents it to the office three minutes and fifty seconds after noon. 278 THE PROPERTY RIGHTS OF In the next place, as ■ the purpose of public registration is goneral notoriety, a deed is perfectlj' good without record against the grantor himself and his heirs, because the grantor himself could not but know of the deed, and, as all title passed out of him by it, his heirs could take none from him. And, finally, a deed not recorded is just as good as if it had been recorded against any parties, or the heirs of any parties, who took the land from- the grantor by a subsequent deed, even for a full price, if they had at the time notice or knowledge of the prior and unrecorded cleed. Many wise persons have doubted the expediency of this last rule, because it tends to i-aise troublesome questions, and to make grantees careless about recording their deeds. But the rule itself is universally and firmly established, and in some statutes requiring record this exception is expressed. A deed should be dated ; but if it have no date, it will take effect from delivery. Any erasures or alterations should be noticed and stated above the names of the witnesses, as having been made before the execution of the instrument. Any material alteration by a grantee, or by his procurement, makes the deed void in most cases, so far as he is concerned. It is usual, and therefore proper, to name executors, adminis- trators, &c., as in the forms appended; but, generally, the rights and "obligations of the deceased fall by law on their legal repre- sentatives. SECTION II, THE USUAt CLAUSES IN DEEDS. It is customary to recite in all deeds the consideration on which they are made. This is usually the price paid for them. Sometimes it is this price in part, and other things in part. Sometimes there is no price paid, the land being either a gift, or conveyed for other considerations. In the great majority of deeds, the language used is, " In consideration of {so much monei/), paid me by the said {grcmtee), the receipt whereof I acknowledge." Or it is, "In con- sideration of one dollar paid me, the receipt of which I acknowledge, and divers other considerations ; " or, " In consideration of one dollar to me paid, the receipt of which I acknowledge, and of the love and good-will I bear to the said {grantee)P It is always customary, although not necessary, to put in "one dollar," or some other nominal sum, although no price is paid. Although the price is inserted, and the receipt thereof be ac- knowledged, the seller is not bound by his receipt. It is a general A CITIZEN 6f the UNITED STATES. 279 rule, as has been stated, that all written receipts of money are open to evidence, although written contracts generally are not. Under this rule, the seller may sue for the whole or any part of the money of which he has acknowledged the receipt, if he can prove that the money he demands has not been paid to him. He cannot, however, say that the money has not been paid, and therefore the deed is void, and the land has not passed to the grantee. For only that part of the deed which is a receipt is open to denial or evi- dence. Of the words of conveyance, which are usually " give, grant, sell, and convey," it needs only be said that it is best to use them, heoause it is usual, but that other words, or these with some change, might be suiBcient in law. The description of the land should be minute and accurate, to an extreme degree. In this country it is customary and well to refer to the previous deeds by which the grantor obtained his title. This is done by . describing them by their parties, date, and book and page of registry. It may be well to remark that a deed referred to in a deed becomes, for most purposes in law, a part of the deed referring. By the law of England and of America, if land is conveyed by deed to "A B," the grantee takes it for his life only. Nor will he take it in full property (or, to use the technical law-term, in fee- simple), that is, with full power of disposing of it during his life or at his death, with a right on the part of his heirs to it if he does not dispose of it, unless it is given to " A B and his heirs.'' These last words, which are commonly called words of inheritance, must always be added ; for although there are some qualifications to this rule, which might help those who take such a deed inadvertently, there are none to which it would be safe to trust. The deed is terminated by this clause of execution : " In wit- ness whereof, I, the said A B, on the day of in the year . , have hereunto set my hand and seal," or "subscribed (or written) my name and affixed my seal." And there should be no departure from this, although an exact adherence to this formula may not be necessary to the validity of the deed. This clause is often called the " in testimonium clause." If the deed contains nothing hut what has now been said, it will convey the Jand, or all the right, title, and.interest in and to the land, possessed by the grantor. But it is only what is called a quitclaim deed. That is, it is not a warranty deed. These phrases, which are in common use, explain themselves. Originally, a quitclaim deed was intended, and, indeed, operated only where the grantee al- ready held possession of the land, or some title to it, and the grantor 280 THE PROPERTY RIGHTS OF intended to renounce all his right or title in favor of the grantee. But it was soon used where a man intended to sell and convey land, but not to give any warranty. And now, because there is some question, in some of our States, as to the effect of the words " give, grant, sell, and convey," although there be no express warranty in the deed, it is usual, and it is best, when only a quitclaim is in- tended, without any warranty whatever, to substitute for the words of conveyance above mentioned the words " grant and quitclaim," or, more accurat'ely, " release and quitclaim." Then, if the grantee afterwards loses the land because the grantor had no title to it, the grantor fs nevertheless under no responsibility, provided the trans- action was an honest one on his part. All purchasers, therefore, desire to have a warranty deed, if they can get one. And a deed becomes a warranty deed when clauses like those which follow are inserted just before the clause of execution : — " And I, the said A B (the grantor), for myself, my heirs, ex- ecutors, and administrators, do covenant with the said C D (the grantee), his heh-s and assigns, that I am lawfully seised in fee of the aforegranted premises ; that they are free from all incumbrances ; that I have good .right to sell and convey the same to the said C D as aforesaid ; and that I will, and my heirs, executors, and adminis- trators shall, warrant and defend the same to the said C D, his heirs and assigns, for ever, against the lawful claims and demands of all persons.'' It will be noticed that this 'paragraph contains four diflferent agreements or warranties, — covenants, the law calls them. The cases are multitudinous, and the law excessively nice as to their exact meaning and operation. None of this technical learning is it worth while to si^-ead before the general reader. But the general purpose and effect of all of them together should be stated. It is, that if " the said C D," that is, the grantee, or his heirs or assigns, are turned out of that estate (ousted or evicted, the law says), on the ground that the grantor had no title, or an incumbered title, and could not convey any good and clear title, he or they may fall back on the grantor or his heirs, and demand damages for the loss of the land. It is a question how much damage a grantee thus ousted shall recover. In most of our States, it seems to be the money paid for it, with interest (deducting rents and profits), and the legal costs and charges (not including counsel fees) for defending against the suit which has ousted him from the land, and no more. But in other States, as generally in New England, the party ousted recovers the actual value of the land, with his improvements, which he loses " A CITIZEN OF THE UNITED STATES. 281 • by the defect of the grantor's title, although this may be much more than he paid for it. It is not, however, settled uniformly what the measure of damages is. In forms of deeds there is usually a blank of a few lines left after the word " incumbrances," and this is intended for the inser- tion of any mortgage, or other incumbrance, which may exist; thus, "excepting a mortgage to, &c., dated, &c., to secure" the sum of," &c. Or, " excepting a right in the owners of the adjoining land to have and maintain a drain running," &c. Sometimes quitclaim deeds are made with this warranty: " And I will, and my heirs, &c., shall, warrant and defend, &c., .to the said C D, &c., against all claims and demands of myself, or of any persons deriving title by or through me." Such a warranty will hold the grantor and his heirs liable for any incumbrance made or suffered by him, but not for any other. As the usual covenants of a warranty deed are made with the grantee, "his heirs and assigns," if such grantee conveys the land only by grant and quitclaim, without warranty, his grantee takes the benefit of all the previous warranties to which this last grantor was entitled. Thus, A sells with warranty to B ; B grants and quit- claims to C ; C is ousted by D, who pi-oves that he has a better title than A. C cannot sue B, because he got no warranty from B ; but he can sue A" on A's warranty to B, which was transferred to 0. Sometimes estates are conveyed on condition ; hut this is a very catching thing, and nobody should ever take such a deed, if he can help it. It IS hardly safe to have the word condition in any deed but a mortgage. The reason is, that if an estate is conveyed on condition, and the condition is broken, the estate is lost. Thus, if land is sold on a certain street with this clause : " And the land aforesaid is sold on condition that neither the grantee, nor any one deriving title from or through him, shall build within ten feet of the street." If any owner build six inches over the line, by mistake, or extend his building by an addition of a foot or so in any part, the whole land, house and all, might be lost and forfeited to the grantor. And the grantor can always secure the proper effect of such a con- dition by a clause like this : " Provided, however, and it is agreed, that if the said C D, &c., shall build, &c., the said A B, or his heirs or assigns, may enter upon the land hereby conveyed, and abate and remove any and all buildings or parts of buildings which stand nearer said street than the limit of ten feet aforesaid ; " — or some similar clause, as might be framed to suit the case. This would be just as good for the grantor, and a great deal safer for the grantee. ' 282 THE PROPERTY RIGHTS OP By a rule of law which originated in this country, and is now universal liere, if a married woman holds lands, the husband and the wife, joining in one deed, may convey them. In some of our States such a deed is regulated by statutes, which, of course, are to be followed. And in many of them the wife now has peculiar powers by statute, as stated in the chapter on Married "Women. It may be necessary that she should renounce or release certain rights, as of homestead, &c., under these statutes, if it is intended that the grantee should take a clear title ; and in such case proper words should be inserted. This is now the custom, for example, in Massa- chusetts. She should always release her right of dower, unless it is intended that she should preserve it. In some States her signing the deed with her husband does not release any thing, even if it could be proved that such was her intention, unless the deed con- tain words expressing her intention to release or convey such or such a right or interest. In most printed forms there is a.blank left to be filled up for this purpose. As this differs in different States, I shall refer to it again. It may be well to remark that bargains are often made for the purchase and sale of real property. If the contract be oral only, it has no force in any court. If it be in writing, either party may, in a court of law, recover damages from the other if he refuses to per- form his contract. Or, in a court of equity, he may compel the other to execute his contract. Not, however, if there was fi-aud in the contract, or oppression, or gross misrepresentation, or intentional and important concealment. But a mere inadequacy of price — all things being honest — will not prevent a court of equity from enforcing such an agreement. Deeds conveying land are of vast variety. They not only differ, that they may suit the particular purposes of the parties and the terms of their bargain, but those used in each section of the country differ somewhat in form from those used in another; and different conveyancers in the same State prefer one form to another. But these differences are generally, if not always, differences only of form, and are seldom essential to the meaning and effect of the deeds. I give here forms of all the kinds most in use ; and in such variety, and so selected and prepared, that it is believed that any person in any part of this country will be able to find a form which, either as it stands, or with such alterations as can be readily seen to be required by the use he would make of it, will be safe and suffi- cient for his purpose. As acknowledgments differ much in form, enough of them are given to show the kinds that are used. The fuller and more par- A CITIZEN OF THE UNITED STATES. 283 ticular are ithe safer, althougli the shorter and more general might be suiScient. In New England, a deed of land is usually what is called in law a deed-poll; by which is meant a deed of one party, and from him to another. In the other States generally a deed of lands is more commonly in the form of an indenture, which is an instru- ment between two or more parties. The difference betvveen them will be seen in the forms given. The first one is a deed-poll. But most of them are indentures, as they are most frequently used ; although a deed-poll that was satisfactory in other respects would generally suffice to give good title to land anywhere. A form of a deed-poll may he converted into an indenture by changing the beginning of it in the manner shown in the forms, and, whenever the word "grantor" comes, changing that into "the party of the first part." And a deed by indenture is made a deed- poll by changes of an opposite kind. How to make these changes will be seen by comparing the deeds of the two kinds as herein given. Another diflference between the deeds-poll in common use in the New England States, and the deeds by indenture in use else- where, must be noticed. If the grantor by a deed-poll has a wife, and it is intended that she shall relinquish her dower, she is not mentioned as grantor, but in the in testimonium, so called, which is that part of the deed which begins with " In witness, (or in testimony) whereof;" in this her name is mentioned, and it must be distinctly said that she signs the deed in token of her relinquishment or release of dower. This is shown in the first of the forms annexed to this chapter. But where deeds by indenture are used, there she is joined with her hus- band, and named as grantor, he and she being " parties of the first part." It is, however, not necessary that any thing should be said in the deed about her release of dower or homestead ; but she signs and seals the deed, and, in the acknowledgment, express mention is to be made of her release of dower and homestead, and also that she was separately examined. Some of the forms are drawn in this way. Other forms are written as if the grantor was unmarried, or as if his wife, if he had one, did not intend to give up her dower. But all these forms can be readily altered, and made to resemble either of the forms accordingly as there is or is not a wife, or as, if there be a wife, it is intended that she should join in the conveyance and relinquish her dower, or that the husband should convey subject to the wife's dower. If this last be the intention, it is not necessary to say so, as the mere fact that she is not a party to the deed pre- serves for her her right of dower. 284 THE PROPERTY RIGHTS OF SECTION m.- JUORTGAGES OF LAND. The purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although not the same . thing. Mortgages are now made of personal property, as well as of real property ; but we will consider in. this section a mortgage of real property; or, as it is usually called, a mortgage deed. This is usually a deed conveying the land to the creditor as fuUy, and in precisely the same way, as if it were sold to him outright ; but with an addition. This consists of a clause inserted before the clause of execution, to the effect that if the grantor (the mortgagor) shall j)ay to-the grantee (the mortgagee) a certain amount of money at a certain time,' then the deed shall be void. It is' usually expressed in words substantially like these : — " Provided, nevertheless, that if the said A B (the grantor), his heirs, executors, or administrators, shall pay to the said C D (the . grantee), his executors, administrators, or assigns, the siim of $ with interest (semi-annually, or otherwise as agreed on), on or before the day of then this deed, and also a certain promissory note signed by said A B, whereby said A B promises to pay said C D, or his order, the said sum at the said, time, shall both be void ; and otherwise shall remain in full force." In some States it is more frequent to make a bond, instead of a note, to be secured by the mortgage; and the proviso should be altered accordingly; and it should also be made to express any other terms agreed on. Some of these will be spoken of presently. In law, every thing is a mortgage which consists of a valid con- veyance, and a promise, or agreement, providing that the convey- ance shall be void when a certain debt is paid, or the act performed for which the mortgage is security. This promise or agreement, which converts a simple conveyance of land into a mortgage, usually is contained in the deed itself; and should always be so, for the sake of safety and certainty. This is not, however, strictly necessary in point of law. The transaction becomes a mortgage, if the grantee gives back an instrument, in which it is agreed that the conveyance shall be void-if a certain sum of money be paid, or a certain thing be done. This is called an instru- ment of defeasance ; because it defeats or annuls, upon certain terms, the deed of conveyance. A CITIZEN OF TEE UNITED STATES. 285 While a common mortgage deed, like any of those of which forms are annexed to this chapter, gives rise to no nice questions of law, it is otherwise with a mortgage which consists of an outright deed of conveyance, and a separate instrument of defeasance. Here numerous questions have arisen, and are answered differently in different States. It may be said, however, that the instrument of defeasance, whatever be its form, must constitute a part of the original transaction. It is not essential that the defeasance be reduced to writing or executed, at the same time with the deed of conveyance. If executed afterwards, but in conformity with an original agreement to that effect, the defeasance and the deed of conveyance will be regarded as one transaction. And if they bear different dates, but are delivered together, they will constitute a mortgage. Whatever be the date of the instrument of defeasance, if the party who made the deed of conveyance can show by sufficient evidence that the original bargain was that the land should only be mortgaged, and that the defeasance was made to carry out this agreement, it will be held to make a niortgage. There is no especial rule now universally admitted as to the form of a separate defeasance. The earlier and stricter rule was, that the instrument of defeasance must be of as high a nature as the instrument of conveyance ; that is, it must be like that, a deed. But in a majority of the States in which the question has come before the courts, it has been held that any written agreement which amounts in substance to a defeasance, although not a deed, suffices to make the' conveyance a mortgage. This may now be considered as the general rule. But in some States the condition or defeasance must be inserted in the deed of conveyance. In many of the States the courts relieve a party who has made an outright deed of conveyance without inserting any condition or receiving from the grantee any instrument of defeasance, provided he can show even by unwritten evidence that all he intended to make was a mortgage. But on this point the diversity of the decisions is very great. It must suffice to give the rule prevailing in the Supreme Court of the United States. This rule is, that wherever a deed of conveyance is absolute in its terms, but it would be a fraudulent act on the part of the grantee to insist upon its operating as an absolute deed, then the grantor may show, by written or unwritten evidence, that the deed was intended to be a mortgage. If A makes an absolute deed of his land to B, and C buys it honestly of B, then C cannot be disturbed by A's showing that 286 THE PROPERTY RIGHTS OF there was an instrument of defeasance, or a bargain making it a mortgage, if C had no notice, by record or otherwise, and no knowl- edge, either of the instrument of defeasance or of the bargain. The mortgagee has a title to the land; but it is subject to •avoidance by payment of the debt. Until such payment, the land is his ; and all the mortgagor owns in relation to it is a right to pay the debt and redeem the land. It is commonly thought that the mortgagor has a right to retain possession until the debt is due and unpaid, and, in fact, he usually does so. But the mortgagee has, in law, the same right of imme- diate possession as a buyer; and, therefore, if it is not intended that he should have possession at once, the mortgage deed ought to con- tain a clause to the effect that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements or promises. Formerly, a mortgagor had a right to redeem his land only be- fore or when the debt became due ; for, if he did not pay the money when it was due, he had no further right. Now he can pay or tender the debt only when it is due. But for a long time a rnle has been established .which allows a mortgagor a longer time to redeem his land after the debt is due ; and this is now the law in all our. States. This right to redeem is called a right in equity to redeem, or, more briefly and commonly, an equity of redemption ; which all courts now regard and protect. The mortgagor may sell this equity of redemption, or he may mortgage it by making a second or other subsequent mortgage of the Jand, and it may be attached by creditors, and would go to assignees as a part of his property if he became insolvent. The time within which a mort- gagor may thus redeem his land is usually three years. The law regards this equity as so important, that it will not permit a party to lose it by his own agreement. Thus, if a mort- gagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may have posses- sion and absolute title as soon as the debt is due and unpaid, the law sets aside all such agreements, and gives the debtor his equity of redemption for three years. Within a few years, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be cer- tainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that, if the money or the A CITIZEN OF THE UNITED STATES. 287 interest thereon is not paid when it is due, the mortgagee may, in a certain number of da^s thereafter, sell the land (providing also such precautions to secure a fair price as may be agreed on), and, reserv- ing enough to pay his debt and charges, pay over the balance to the mortgagor. This is called a power-of-sale mortgage. There are now in some of our States, statutes regulating these power-of-sale mortgages. Of course the provisions of these statutes prevail. But where such statute does not give to the mortgagee the right to purchase the land, he cannot do so ; for he js considered in some measure as selling the land as a trustee for the moi-tgagor, and a trustee who sells land cannot sell to himself; that is, he can never buy the land which he sells. This rule is intended to guard against fraud. The three years of redemption do not begin from the day when the debt is due and unpaid, unless the- mortgagee then enters and takes possession for the purpose of foreclosing the mortgage, as the legal phrase is ; by which phrase is meant extinguishing Jhe equity of redemption. If the debt has been due a dozen years, the mort- gagor may still redeem, unless the .mortgagee has entered to fore- close, and three years have elapsed afterwards. He may make entry for this purpose in a peaceable manner, before witnesses, as pointed out in the statutes regulating mort- gages ; or he may bring an action at law to get possession of the land. If the mortgagor redeems, he must tender the debt, with inter- est, and the lawful costs and charges of the mortgagee ; but he will be allowed such rents and profits as the mortgagee has actually re- ceived, or would have received but for his own fault. One of these other agreements, which is now very common, is •that the mortgagor shall keep the premises insured in a certain sum for the security of the mortgagee ; or that the mortgagee may insure it, and charge the premium to the mortgagor ; and, if there be such an agreement, it should be expressed in the deed. Otherwise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor. If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land, and forecloses the mortgage, he gets all these additions, without pay- ing for them. If the mortgagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them. Such is the efifect of the law if there be no bargain between the parties about these things. But they V may make any bargain about them they choose to make. 288 THE PROPERTY RIGHTS. OF POEMS ANNEXED TO THIS CHAPTEE. 18. A deed-poll of warranty, in common use 'in New England. 19. Deed of gift by indenture, without any warranty whatever. 20. Deed of bargain and sale -without any warranty. 21. Quitclaim deed without any warranty. 22. Deed-poll of release and conveyance. Short form. 83. Deed with special warranty against the grantor only. 24. Quitclaim deed. Long form, with waiver of homestead. 25. Deed with covenant against grantor, without release of homestead or dower. 26. Separate relinquishment of homestead and dower in land sold under execution. 27. Full warranty deed, by indenture, without release of homestead or dower. 28u Warranty deed. Short form, with release of homestead and dower. 29. Warranty deed, with covenant against nuisances, without release of homestead or dower. 30. Bond for. a deed. 31. Contract for sale of land, with penal obligation. 32. Power of attorney to sell lands. 33. Trust-deed for the benefit of a wife or some other person. 34. Trust-deed to secure payment of a note, without release of home- stead or dower. 35. Trust-deed to secure a debt. Fuller form, with release of dower. 36. Trust-deed to secure a note. Shorter form, with warranty and release of homestead and dower. 37. Deed from trustees. 38. Deed of master in chancery. •! 39. Sheriff's deed on execution, in use in the Western States. 40. Sheriff's deed, in use in New England. 41. Sheriff's tax-deed, in use in the Western States. * 42. Deed of executor, in use in the Eastern States. * 43. Deed of executor, in the Middle States. 44. Deed of administrator of intestate. 45. Deed-poll of guardian of minor. 46. Deed of referee on foreclosure, in use in the Middle States. 47. Deed of collector of taxes. 48. Deed of assignee, in use in the Western States. 49. Promissory note, to be secured by mortgage. 50. Bonds to be secured by a mortgage. 51. Mortgage without power of sale and without warranty, but with release of homestead and dower. 52. Mortgage with power of sale, to secure a bond without release of dower. 53. Mortgage to secure a debt, with power of sale. Short form. 54. Mortgage to secure a debt. Fuller form, with power of sale. 55. Deed-poll of mortgage, with power to sell and insurance clause, and release of dower and homestead. ,. A CITIZEN OF THE UNITED STATES. 289 56. Mortgage by indenture, ■with power of sale and interest and insur- ance clause, to secure a bond. 57. Mortgage to executors, with power of sale. 58. Mortgage of a lease. 59. Mortgagee's deed under a power of sale. 60. Assignment of mortgage. Short form. 61. Assignment of mortgage, with power of attorney. 62. Assignment of mortgage by a corporation. 63. Discharge of mortgage. Short fcffm. 64. Release and quitclaim of mortgage, as used in the Western States. 65. Discharge of mortgage, as used in the Middle States. 66. Discharge and satisfaction of a mortgage by a corporation. 67. Release of a part of the mortgaged premises. 68. Deed extending a mortgage. 48*. Acknowledgment of grantor and wife, before commissioner for another State. (18.) A DEED-POLL OF WAERANTY, IN COMMON USE IN NEW ENGLAND. Know all men by these presents, That I, (the grantor), of (resi- dence, town or city, county and State), (occupation), in consideration of (the amount paid) to me paid by (here name the grantee or purchaser, giving in like manner his residence and occupation) , the receipt whereof is hereby acknowl- edged, do hereby give, grant, bargain, sell, and convey unto the said (name the grantee, and then describe the premises granted, minutely and accurately) . To HAVE AND TO HOLD the abovc-grantcd premises to the said (name the grantee), his (or hers or their) heirs and assigns, to his (or hers or their) use and behoof for ever. And I, the said (name of the grantor), for (my- self) and (my) heirs, executors, and administrators, do covenant with the said (name of the grantee), and with his heirs and assigns, that I am law- fully seised in fee-simple of the afore-granted premises; that they are free from all incumbrances (if there he any incumbrances, as a mortgage or lien, or right of way, or drain, or air, or light, say excepting, and then describe the incumbrance), that I have good right to sell and convey the same to th^ said (name of the grantee) , and his (or her) heirs and assigns forever as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said (name of the grantee), and his heirs and assigns for ever, against the lawful claims and demands of aU persons. • In witness whereof, I, the said (name of the grantor), and (name of his wife), wife of said grantor, in token of her release of all right and title of* or to dower in the granted premises, have hereunto set our hands and seals, -this day of in the year of our Lord eighteen hundred and , „ , ^ (Seals.) Signed, sealed, and delivered in presence of In those States in which a homestead law exists, the signature of the wife, with a clause like that above, would not release the 19 290 THE PROPERTY RIGHTS OF homestead. To effect this, the fonowing clause should be inserted before the words, " In token of: " — " In token of her release to the said (name of the grantee), of all her right, interest, and estate to or in the premises herein conveyed, under the homestead laws of this State; and also," &e. Some conveyancers think this hardly sufficient, and prefer the following method, which would undoubtedly be effectvial in every one of these States. Insert before the. paragraph beginning, " In witness whereof," this paragraph : — " And I (name of the wife), wife of the said (the name of the grantor), in consideration of one dollar to me paid by the said (the name of the grantee) , the receipt whereof is acknowledged, do hereby release and assign to the said (the name of the grantee), and his heirs and assigns, all my right, in- terest, claim, and estate in or to the premises within gi'anted, under the homestead laws of this State, or any other statutory provisions thereof." It is to be remembered that, whether the deed be a warranty deed like that above given, or a release or quitclaim, or a mortgage deed, it is equally necessary and proper that the wife should release her homestead right and her dower, unless it is intended that she should retain them. Below the deed comes the acknowledgment. Commonwealth (or State) of (County) ss. (Tovm, month, ana date.) Then personally appeared the above-named and acknowl- edged the above instrument to he free act and deed, before me. Justice of the Peace. (19.) DEED OF GIFT BY INDENTURE, WITHOUT ANY WARRANTY WHATEVER. This indei^urb. Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the grantor), of the first part, and (name, residence, and occu- pation of the grantee), of the second part, witnesseth, That the said (the grantor) as well for and in consideration of the love and affection which he has and bears towards the said (the grantee) as for the sum of one dollar, lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these pres- ents, the receipt whereof is hereby acknowledged,' has given, granted, aliened, enfeoffed, released, conveyed, and confirmed, and by these presents does give, grant, alien, enfeoff, release, convey, and confirm, unto the said A CITIZEN OF THE UMTED STATES. 291 party of the second part, and-his heirs and assigns for ever, all (here describe carefully the land or premises granted, hj metes and bounds, and dimensions, contents or quantity/, or boundary marks or monuments, and refer by volume and page to the deed of the land to the grantor, under which he holds it). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in apy wise Appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And, also, all the estate, right, title, interest, property, possession, claim, and demand whatsoever, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with their and every of their appurtenances. To have and to hold the said hereby granted and described premises, and every part and parcel thereof, with the appurtenances unto the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof for ever. In witness whereof. The said party of the first part has hereunto set his hand and seal, the day and year first above written. (^Signature.) {Seal.) Sealed and delivered in the presence of (20.) DEED OF BARGAIN AND SALE WITHOUT ANY WARRANTY. This indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the grantor), of the first part, and (name, residence, and occttg pation of the frantee), of the second part, witnesseth. That the said party of the first part, for and- in consideration of the sum of lawful money of the United States of America, to him in hand paid by the said, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bar- gained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his and assigns for ever, all (here describe carefully the land or premises granted, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, iSsues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenaTices. To have and to hold all and singular the above mentioned and described premises, to- gether with the appurtenances, unto the sai2 party of the second part, and his heirs and assigns for ever. 292 TBE PROPERTY RIGHTS OF In witness -whereof, The said party of -the first part has hereunto set his hand and seal, ' the day and year first above written. (^Signature.') {Seal.) Sealed and delivered in the presence of State of ^ >-83. County of ) On this day of in the year one thousand eight hundred and before me personally came {the name of the party of ike first part, who is the grantor), who is known by me to be the individual described, and who executed the foregoing instrument, and then and there acknowledged that he executed the same as and for his own deed. (^Signature.) (21.) QUITCLAIM DEED WITHOUT ANY WARRANTY. This indenture. Made the day of in the year one thousand eight hundred and.. between (name, residence, and occupation of the grantor), of the first part, and (riame, residency, and occupation of the grantee) , of the second part, witnesseth. That the said party of the first part, for and in consideration of the sum of lawful money of the United States of America, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has remised, released, and quitclaimed, and by these presents does rernise, release, and quitclaim, flnto the said party of the second part, and to his heirs and assigns for ever, all {here describe carefully the land or premises granted, as directed in Form 19). Together with all and singular the. tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with, the appurtenances, unto the said party of the second part, and his heiis and assigns for ever. In witness whereof. The said party of the first part has hereunto set his hand and seal, the day and year first above written. {Signature.) {Seal.) Sealed and delivared in the presence of State of ") ^ss. County of ) On this day of in the year one thousand eight A CITIZEN OF THE UNITED STATES. 293 hundred and before me personally came (the name of tJie grantor), who is known by me to be the individual described, and who executed the foregoing instrument, and acknowledged that he executed the same. (Signature.') (22.) DEED-POLL OF RELEASE AND CONVEYANCE. SHORT FORM. Know alt. men by these presents, That I (the name of releasor), of the county of and State of for and in consider- ation of one dollar to me in hand paid, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto (the name of the releasee) , of the county of and State of all the right, title, interest, claim, or demand whatsoever I may have acquired in, through, or by a certain indenture or deed, bearing date the day of A.D. 18 and recorded in the office of county, and State of in book of page to the premises therein described, to wit (here describe carefully the land or premises granted, as directed in Form 19). Witness my hand and seal, this day of a.d. 18 (Signature.) (Seal.) State of CotTNTy >• S3. I, in and for said county, in the State aforesaid, do hereby certify that (the name of the releasor) , personally known to me as the same person whose name is su"bscribed to the foregoing deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his own free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of A.D. 18 (Signature.) (Seal.) (23.) DEED, "WITH SPECIAL WARRANTY AGAINST THE GRANTOR ONLY. This indentuke. Made this day of in the year of our Lord one thousand eight hundred and sixty- be- tween (the name of the grantor) and (name of the wife of grantor), wife of the said (name of the grantor), of the coimty of and State of parties of the first part, and (name and residence of the grantee), party of the second part : Witnesseth, that the said parties of the first part, for and in consideration of the sum of to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, and sell unto the said 294 THE PROPERTY RIGHTS OF party of the second part, and his heirs and assigns, the f ollowing-descrihed tract ov parcel of land, situate in (here describe carefully the land or prem- 'ises granted, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in any wise appertaining, and the reversion and reversions, remainder_ and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, pos- session, claim, and demand whatsoever, as well in law as in equity, of the said parties- of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, and his heirs and assigns for ever. And the said the said parties of the first part, hereby expressly waive, release, and relinquish unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever in and to the above-described prem- ises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. And the said parties of the first part, for themselves and their heirs, executors, and administrators, do hereby covenant, promise, and agree to and with the said party of the second part, his heirs and assigns, that the said premises, against the claim of all persons claiming or to claim by, through, or under him only, he will for ever warrant and defend. In testimony whereof. The said parties of the first part have here- unto set their hands and seals the day and year first above written. (Signature of grantor.') (Seal.) (Signature of wife of grantor.") (_Seal.) Sealed and delivered in presence of State op '•S8. Count's CY. ) I, in and for said county, in the State aforesaid, do hereby certify that (name of the grantor) , personally known to me as the same per- son whose name is subscribed to the annexed deed, appeared before me this da3' in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of the grantor's wife) , wife of the said (name of the grantor) , having been by me examined, separate and apart and out of the hearing of her husband, and the contents and meaning of the said instru- ment of writing having been by me fully made known and explained to her, and she also by me being fully informed of her right under the home- stead laws of this State, acknowledged that she had freely, and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by A CITIZEN OF THE UNITED STATES. 295 virtue of all laws of this State relating to the exemption of homesteads, ■without compulsion of her said husband, and that she does not wish to retract the same. Given imder my haod and seal;, this day of A.D. 186 (^Signature.') (Seal.) (24.) QUITCLAIM DEED. L0K6 FOEM, WITH WAIVER OF HOMESTEAD. This indenture, Made the day of in the year of our Lord one thousand eight hundred and sixty- between (name, residence, and occupation of the grantor, and name of the grantor's wife), parties of the first part, and (name, residence, and occupation of the grantee), party of the second part, WITNESSETH, That the said party of the first part, for and in considera- tion of dollars in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, for ever released and discharged therefrom, have remised, released, sold, conveyed, and quitclaimed, and by these presents do remise, release, sell, convey, and quitclaim, unto the said party of the second part, his heirs and assigns for ever, all the right, title, interest, claim, and demand which the said party of the first part have in and to the following-described lot , piece , or parcel of land, to wit (here describe carefully the land or premises granted, as directed in Form 19). To HAVE AND TO HOLD THE SAME, Together with all and singular the appurtenances and privileges thereunto belonging, or in any wise there- unto appertaining; and all the estate, right, title, interest, and claim what- ever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns for ever. And the said parties of the first part hereby expressly waive, release, and relinquish unto the said party of the second part, his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. And the said parties of the first part, for themselves and their heirs, executors, and administrators, do covenant, promise, and agree to and with the said party of the second part, their heirs, executors, administra tors, and assigns, that they have not made, done, committed, executed, oi suffered any act or acts, thing or things, whatsoever, whereby, or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be, impeached, charged, or incumbered, in any way or manner whatsoever. 266 THE PROPERTY RIGHTS OF In witness whereof, The said party of the first part hereunto set their hands and seals, the day and year above written. {Signature of grantor.') (Seal.) {Signature of wife of grantorf) {Seal.) Signed, sealed and delivered in presence of State op ) y ss. County. ) I, in and for said county, and the State aforesaid, do hereby certify that (name of the grantor), being personally known to me as ' the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of the' wife), wife of the said (name of the grantor), having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writ- ing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and of&cial seal, this day of •A.D. 186 (Signature.) (Seal.) (25.) DEED, WITH COVENANT AGAINST GRANTOR, WITHOUT RELEASE OF HOMESTEAD OR DOWER. This indenture. Made the day of in the year one thousand eight hundred and between (name of the grantor), of the first part, and (name of the grantee), of the second part, witnesseth, That the saiji party of the first part, for and in consideration of the sum of lawful money of the United States of Aneiica, to' him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowl- edged, ha granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, re- mise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns for ever, all (here describe carefully the land or premises granted, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. A CITIZEN OF TEE UNITED STATES. 297 And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, and his heirs and assigns, for ever. And the said (name of the grantor), for himself and his heirs, executors, and administrators, does hereby covenant, promise, and agree to and with the said party of the second part, and his heirs and assigns, that he has not . made, done, committed, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof the above mentioned and described premises, or any part or pai-cel thereof, now are, or at any time hereafter shall or may be, impeached, charged, or incumbered in any manner or way whatsoever. In witness whereof. The said party of the first part has hereunto set his hand and seal, the day and year first above written. (Signature.') (Seal.) Sealed and delivered in the presence of State of County, [•ss. I, in and for said county,^and the State aforesaid, do hereby certify, that (name of the grantor), being personally known to me as the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and volun- tary act, for the uses and purposes therein set forth. Given imder my hand and official seal, this day of A.D. 186 (Signature). (Seal) (26.) SEPARATE RELINQUISHMENT OF HOMESTEAD AND DOWER IN LAND SOLD UNDER EXECUTION. Know all men by these pkesbnts, That we (name and residence of the debtor) , and (naine of his wife) , wife of the said of the county of and State of parties of the first part, for the sum of one dollar to us paid by (name of the purchaser) , of the county of and State of party of the second part, the receipt whereof is hereby acknowledged, do hereby agree and consent to let the said party of the second part levy and sell, under a certain execution, in favor of them, the said party of the second part, and against (name of the creditor, or the defendant in the suit in which the execution issued) , now in the hands of the sheriff of the county of and State of and dated the day of a.d. 186 the following- described tract of land, situated in the county of and State of 298 THE PROPERTY RIGHTS OF to wit (here describe carefully the land or premises granted, as directed in FormlQ), (and being the same land heretofore held, used, and occupied by the said parties of the first part as a homestead), hereby waiving, re- leasing, relinquishing, and surrendering to and in favor of said party of the second part, under the said levy and sale on said execution, all the right, title, claim, interest, and benefit which we, the said parties of the first part, and each of us, have in and to said premises, by virtue of any and aU homestead exemption laws, now or heretofore in force ia the State of and more especially " An act to exempt homesteads from sale on execution," now in force in the State of Witness our hands and seals, this the day of a.d. 186 . (Signature.^ (Seal.') (Signature.') (Seal.) State of ") >■ ss. County. ) I, in and for said county, in the State aforesaid, do hereby certify that personally known to me as the same persons whose names are subscribed to the annexed instrument, appeared before me this day in person, and acknowledged that they signed, sealed, and delivered the said instrument of writing as their free and voluntary act, for the uses and purposes therein set forth. And the said (the name of the wife) , wife of the said having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, ac]inowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein men- tioned, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and seal, this day of a.d. 186 (Signature.) -(Seal.) (27.) FULI^ WAERANTY DEED, BY INDENTURE, WITHOUT RELEASE OF HOMESTEAD OR DOWER. This indenture. Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the grantor), party of the first part, and (name, residence, and occupation of the grantee), party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, and his heirs, executors, and administrators, for ever released and discharged from the same, by these presents, has granted, A CITIZEN OF THE UNITED STATES. 2S9 bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns for ever, all (here describe carefully the land or premises granted, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances: To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof for ever. And the said (name of the grantor), for himself and his heirs, executors, and administrators, does covenant, grant, and agree to and with the said party of the second part, and his heirs and assigns, that the said (name of the grantor), at the time of the sealing and delivery of these presents, is lawfully seised, in his own right, of a good, absolute, and indefeasible estate of inheritance, in fee-simple, of and in all and singular the above granted and described premises, with the appurtenances thereunto belong- ing; and has good right, full power, and lawful authority to grant, bar- gain, sell, and convey the same, in manner aforesaid: And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter, peaceably and quietly, have, hold, use, occupy, possess, and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, evic- tion, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same: and that the same now are free, clear, discharged, and unin- cumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted prem- ises, by, from, under, or in trust for him or them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and exe- cuted, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted or so intended to be, in and to the said party of the second part, his heirs and assigns, for. ever, as by the said party of the second part, his heii-s or assigns, or hjs or their counsel learned in the law shall be reasonably advised or required. And the said party of the first part, for himself and his heirs, the above described and hereby granted and released premises, and every part and parcel 300 THE PROPERTY RIGHTS OF thereof, -with the appurtenances, unto the said party of the second part, and his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents for ever defend. In witness whereof. The said party of the first part has hereunto set his hand and seal, the day and year first above written. {Signature.) (Seal.") Sealed and delivered in the presence of State of , f > 8S. County of ) On the day of in the year one thousand eight hundred and before me personally came (the name of the grantor), who is known to me to be the individual described in, and' who executed, the foregoing instrument, and acknowledged that he executed the same, as his own free act and deed. (Signature.) (28.) WARRANTY DEED. SHORT FORM, WITH RELEASE OF HOMESTEAD AND DOWER. This indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name, residence, and occupation of grantor, and name of his wife), of the first part, and (name, residence, and occupation of grantee), of the second part, wit- nesseth, that the said party of the first part, in consideration of the sum of dollars in hand paid (the receipt whereof is hereby acknowl- edged), have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said party of the second part, his heirs and assigns, all that piece or parcel of land situate in in the coimty of and State of to wit (here describe carefully the land or premises granted, as directed in Form 19). Together with the appurtenances thereunto belonging; and all the estate, right, title, interest, claim, and demand of the said party of the first part herein. And the said (names of grantor and of his wife), parties of the first part, hereby expressly waive, release, relinquish, and convey unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatsoever in and to the above- described premises, and each and every part thereof, which is given by or results from any and all laws of this State pertaining to the exemption of homesteads. And the said (names of grantor and of his wife) , for themselves and their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, and with his heirs and assigns, that the above-bargained premises in the quiet and peaceable pos- A. CITIZEN OF TEE UNITED STATES. 301 session of the said party of the second part, and his heirs and assigns, the said party of the first part shall and -will warrant and for ever defend. In witness whereof. The said parties of the first part have hereunto set their hands and seals, the day and year first above written. (Signature of grantor.) (Seal.") (Signature of wife of grantor.) (Seal.) Signed, sealed, and delivered in presence of State op County. [■ 88. I, in and for said county, do hereby certify that (name of grantor), who is personally known to me as the same person whose name is subscribed to the annexed deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing, as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of the wife of grantor), wife of the said (name of the grantor) , having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instru- ment of writing been by me fully made' known and explained to her, and she also by me having been fully informed of her rights, uilder the home- stead laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages, under and by virtue of any and all laws of this State relating to the exemption of home- steads, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.D. 186 ^ignalHre.) (Seal.) (29.) ■WAERAIfTT DEED, WITH COVENANT AGAINST NUISANCES, WITHOUT EELEASE OF HOMESTEAD OR DOWER. This indenture. Made the day of in the year one thousand eight hundred and between (name, residence, and occu- pation of the grantor), party of the first part, and (name, residence, and occupation of the grantee), party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and administrators, for ever released and discharged from the same, by these presents has granted, bargained, sold, alienedj remised, released, conveyed, and confirmed, and by- these presents does grant, bargain, sell, alien, remise, release, convey, and confirm, unto 302 THE PROPERTY RIGHTS OF the said party of the second part, and to his heirs and assigns for ever, all (here describe carefully the land or premises granted, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof: and also all the estate, right, title, interest, property, pos- session, claim, and demand whatsoever, as well in law as in equity,- of the s^id party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances, to have and to hold the above granted, bargained, and described premises, with the appurtenances, imto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof for ever. • And the said party of the first part, for himself and for his heirs, execu- tors, and administrators, does hereby covenant, grant, and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the first part, at the time of the sealing and delivery of these presents, is lawfully seised in his own right of a good, absolute, and inde- feasible estate of inheritance, in fee-simple of and in all and singular the above granted and described premises, with the appurtenances to them belonging ; and has good right, full power, and lawful authority to grant, bargain,. sell, and convey the same, in manner aforesaid. And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter peaceably and quietly have, hold, use, occupy, possess, and enjoy the above granted premises, and every part and parcel thereof, with the appm-tenances, without any let, suit, trouble, mol- estation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same; and that the same now are free, clear, discharged, and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature or kind soever.' And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted pi-em- ises, by, from, under or in trust for him or them, shall and will, at any time or times hereafter, upon the. reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted, or so intended to be, in and to the said party of the second part, his heirs and assigns, for ever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably advised or required: and the said party of the first part, for himself and for his heirs, the above- described and hereby granted and released premises, and every part and parcel thereof, ,with the appurtenances, unto the said party of the second part, and his heirs and assigns, against the said party of the first part, and A CITIZEN OF THE UNITED STATES. 303 his heirs, and against all and every person and persons whomsoever, law- fully claiming or to claim the same, shall and will warrant and by these presents for .ever defend. And the said party of the second part, for himself and for his heirs and assigns, does hereby covenant to and with the said party of the first part, and with his heirs, executors, and administrators, that neither the said party of the second part, nor his heirs or assigns, shall or will at any time hereafter erect or permit upon any part of the said lot, any slaughter- house, smith-shop, forge, furnace, steam-engine, brass-foundry, nail or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink, or turpentine, or for the tanning, dressing, or preparing sldns, hides, or leather, or any brewery, distillery, livery-stable, or buildings for any noxious or dangerous trade or business. In witness whereof. The parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above written. {Signature.') (Seal.') {Signature.) {Seal.) Sealed and delivered in presence of State of }■ County of On this day of in the year one thousand eight hundred and before me personally came {the name of the party of the Jirst part, who is the grantor), who is known by me to be the individ- ual described, and who executed the foregoing instrument, and then and there acknowledged that he executed the same as and for his own deed. {Signature.) (30.) BOND FOR A DEED. Know all men by these presents. That- 1 {name of the obligor) ^ of the county of and State of am held and firmly bound to {nam^ of the obligee), of the county of and State of in the sum of dollars, to be paid to .said {name of obligee) , or his executors, administrators, or assigns^ to the payment whereof I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, and dated the day of A.D. 18 The condition of this obligation is that if I the sa;id (name of ihe obligor), upon payment of dollars, and interest thereon, &a agreed and promised by said {name of the obligee), agreeably to his prom- issory note, dated 18 and made payable as follows, to wit {here set forth the note. If there he no note from the obligee, omit this part), shall convey to said {name of the obligee), or his heirs, executors, or assigns, for ever, the following-described real estate, situate, lying, and being in the county of and State of to wit {here describe care- 304 TBE PROPERTY RIGHTS OF fully the land or premises granted, as described in Form 19), deed or deeds in common form, duly executed and acknowledged, and in the mean time shall permit said (name of the obligee) to occupy and improve said premises for his own use, then this obligation shall be void, otherwise it shall remain in full force. (Signature.') (Seal.) Signed, sealed, and delivered, in presence of State of J >-ss. County or ) Be it kembmbered. That on this day of a.d. 18 before the undersigned, a notary public (or other magistrate), within and for the county of aforesaid, personally came (name of the obligor), who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, as the obligor therein, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in the day and year first above vfritten. (Signature.) (Seal.) (31.) CONTRACT FOE SALE OF LAND, WITH PENAL OBLIGATION. Articles of agreement, Made and concluded this day of A.D. 18 between of the county of and State of of the one part, and of the county of and State of of the other part, as follows : — The said (name of the party of the first part) , for the consideration hereinafter mentioned, does for himself and for his heirs, covenant and agree with the said (name of the party of the second part) , and his heirs and assigns, by these presents, that he the said party of the first part, shall and will, on or before the day of a.d. 18 at the proper costs and charges of the said party of the first part (or of the second part, if that is agreed), his heirs and assigns, by good andtlawful deed or deeds, well and sufficiently grant, convey, and assure unto the said party of the second part, his heirs and assigns, in fee-simple, clear of all incum- brances, all that certain tract or parcel of land lying, being, and situate in the county of ~ State of as follows, to wit (here describe carefully the land or premises granted, as directed in Form 19). In consideration whereof, The said (here the name of the party of the second part), for himself and his heirs, does covenant and agree with the said party of the first part, and with his heirs and assigns, by these pres- ents, that he, the said party of the second part, and his heirs, or some of them, shall and will, on the execution and delivery of the said deed or deeds as aforesaid, well and truly pay, or cause to be paid, unto the said party of the first part, or his heirs and assigns, the sum of dollars, in the manner following, to wit (set forth the terms and times of payment as A CITIZEN OF THE UNITED STATES. 305 agreed on). And upon (set forth, the time agreed ort), the said party of the first part shall give to the said party of the second part possession of the aforesaid premises. 'AtxA for the true performance of all and every the covenants and agree- ments aforesaid, each of the said parties bindeth himself, his heirs, execu- tors and administrators, unto the other, his executors, administrators, and assigns, in the penal sum of dollars. In witness whereof, The saicf parties have hereunto set their hands and seals, the day and year first abbve written. (Signature.) (Seal.) (Signature.) (Seal.) Signed, sealed, and delivered, in presence of us, (If it is intended that this contract should he recorded, — in almost all cases it should be, — an acknowledgment by both parties should follow ; and the record should be like that in the next Form.) (32.) POWER OF ATTORNEY TO SELL LANDS. Know all men by these presents, That I, the undersigned (name of the selling party) , of the town (or city) of county of and State of have this day made, constituted, and appointed, and do by these presents make, constitute, and appoint (name of attorney), of the town (or city) of in the county of and State of _ my true and lawful attornej', for me and in my name, to sell and dispose of, absolutely, in fee-simple, the following described lot, tract, or parcel of land, or any part thereof, situate, lying, and being in the county of and State aforesaid, to wit ^ere describe care- fully the land or premises granted, as directed in Form 19) , for such price or sum of money, and to such person or persons as he shall think fit and con- venient; and also for me and in my name, and as my act and deed, to sign, execute, acknowledge, and deliver, such deed or deeds, and conveyance or conveyances, for the absolute sale or disposal thereof, or of any part thereof, with such clause or clauses, covenant or covenants, and agreement or agreements, to be therein contained, as my said attorney shaU think fit and expedient; hereby ratifying and confirming all such deeds, convey- ances, bargains, and sales which shall at any time hereafter be made by said attorney touching or concerning the premises. In testimony whereof, I have hereunto set my hand and seal, on this day of " a.d. 18 (Signature.) (Seal.) State of County of Be it remembered. That on this day a.d. 18 before the undersigned, a notary public (or other magistrate) , within and 20 306 THE PROPERTY RIGHTS OF for the county of and State of personally came (the name of the principal), who is personally known to me to be the same 'person whose name is subscribed to the foregoing instrument of writiug, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In witness whereof, I have hereto set my hand, and affixed my official seal, at my office in the day and year first above written. {Signature.') (_Seal.) State of County of ss. In the Recorder's Office. I, clerk of the Circuit Court, and ex-officio recorder of said county {or whoever else is the recording officer) , do hereby certify that the within instrument of writing was on the day of A.D. 18 duly filed for record in this office, and is recorded in the records of this office, in book at page In witness whereof, I have hereunto set my hand and affixed the seal of said court, at this day of A.D. 18 Recorder. Per DeputTf. (33.) TEUST-DEED FOE THE BENEFIT OF A WIFE OE SOME OTHER PERSON. This deed. Made and entered into this " day of eighteen hundred and sixty- by and between {name, residence, and occupation of the grantor), party of the first part, and {the name, resi- dence and occupation of the trustee), party of the second part, and {name of the wife or any person who is to have the benefit of the trust) , party of the third part, witnesseth: That the said party of the first part, in considera- tion of the sum of dollars, to him in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby also acknowledged, do, by these pre- sents, give, grant, sell, transfer, convey, and assign unto the said party of the part, the following-described tract or parcel of land, that is to say {here describe the premises carefully, as directed in Form 19). To HAVE AND TO HOLD THE SAME, With all the rights, privileges, and appm-tenances- thereto belonging, or in any wise appertaining, unto him the said party of the second part, his heirs and assigns for ever: In trust, however, to and for the sole and separate use, benefit, and behoof of wife of the said {or the name of the son or daughter, or any other person, may be substituted for that of the wife), and the said party of the second part hereby covenants atid agrees to and with the said the party of the third part, that he will suffer and permit her {or him ), without let or molestation, to have, hold, use, occupy, and enjoy A CITIZEN OF TBE UNITED STATES. 307 the aforesaid premises, -with all the rents, issues', profits, and proceeds aris- ing therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his con- trol and interference, debts, and liabilities, courtesy, and all other interests whatsoever; and that he will, at any and all times hereafter, at the request and direction of the said (name of the party of the third part) , expressed in writing, signed by her (or him) or by her (or his) authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits, and pro- ceeds thereof to the said party of the third part, and that he will, at the death of the said party of the third part, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as the said party of the third part shall, by her (or his) last will and testament, or any other writing signed by her, or by her authority, direct or appoint; and in default of such appointment, that he will convey such premises to (here state what it is intended shall be done with the property at the death of the party of the third part if he or she die intestate). And the said party of the third part shall have power at any time hereafter, whenever she (or he) shall from any cause deem it neces- sary or expedient, by an instrument in writing under her (or his) hand and seal, and by her (or him) acknowledged, to nominate and appoint a trustee, or trustees, in the place and stead of the party of the second part above named; which trustee or trustees, or the survivor of them, or the heirs of such survivor, shall hold the said real estate upon the same trust as above recited; and upon the nomination and appointment of such new trustees, the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said party of the third part. And said party of the first part hereby covenants to warrant and defend the title to the said real estate against the lawful claims of all persons whomsoever, to the said parties of the second and third parts, their heirs and assigns. And the said party of the second part covenants faithfully to perform and fulfil the ti'ust herein created. In testimony whereof. The said parties have hereunto set their hand and seal the day and year first above written. (Signature.) (Seal.) (Signature.) (Seal.) (Signature.) (Seal.) The State of ) ^ss. County of ) Be it kkmembeked. That on the day of eighteen hundred and sixty- before me, the undersigned came (the persons who execute the instrument), who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and severally acknowledged the same to be theii- free act and deed for the purposes therein mentioned. (Signature.) 308 THE PROPERTY RIGHTS OF (34.) TRUST-DEED TO SECURE PAYMENT OF A NOTE, WITHOUT RELEASE OF HOMESTEAD OR DOWER. This deed, Made and entered into this day of eighteen hundred and by and between (name and occupation of the grantor who is the debtor) , of the county of State of part of the first part, and (name and occupation of the trustee), of the county of State of part of the second part, and (name and occupation of the creditor for whose benefit the deed is made) , of the county of State of part of the third part : WITNESSETH, That the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain, and sell, convey, and confirm, unto the said' party of the second part, the fol- lowing-described real estate, situate, lying, and being in the county of and State of to wit (Jiere describe carefully the land or premises granted, as described in Form 19). To HAVE AND TO HOLD the Same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to him and his heirs and his and their grantees and assigns, for ever. In trust, however, for the following purposes : Whereas the said party of the first part has this day made, executed, and delivered to the said party of the third part, his promissory note of even date herewith, by which he promises to pay to the said (name of the creditor), or order, for value received, -^w^ dollars, in (the days or months when the note is payable) . Now, THEUEFOEB, if the Said party of the first part, or any one for him, shall well and truly pay off and discharge the debt and interest ex- pressed in the said note and every part thereof, when the same becomes due and payable, according to the true tenor, date, and effect of said note , then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said party of the first part; but, should the said first party fail or refuse to pay the said debt, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable, according to the true tenor, date, and effect of said note , then the whole shall become due and payable, and this deed shall remain in force; and the said party of the second part, or in case of his absence, death, refusal to act, or disability in anywise, the (then) acting sheriff of coiinty, at the request of the legal holder of the said note, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at in the of county for cash, first giving days' public notice of the time, terms, and place of sale, and of the prop- erty to be .sold, by advertisement in some newspaper printed and published in the of and upon such sale shall execute and A CITIZEN OF THE UNITED STATES. 309 deliver a deed in fee-simple of the property sold to 'the purchaser or- pur- chasers thereof, and receive the proceeds of said sale ; and any statement of facts or recital by the said trustee, in relation to the non-payment of the money secured to be ^aid, the advertisement, sale, receipt of the money, and the execution of the deed to the purchaser, shall be received as prima facie evidence of such fact; and such trustee shall, out of the proceeds of said sale, pay, first, the cost and expenses of executing this trust, includ- ing legal compensation to the trustee for his services, and next shall apply the proceeds i-emaining over to the payment of said debt and interest, or so much thereof as remains unpaid, and the remainder, if any, shall be paid to the said party of the first part, or his legal representatives. And the said party of the second part covenants faithfully to perform and ful- fil the trust herein created, not being liable or responsible for any mischance occasioned by others. In witness whereof. The said parties have hereunto set their hands and seals, the day and year first above written. (^Signature of party of (he first part.) (^Seal.) (^Signature of party of the second part.) (^Seal.) (^Signature of parly of the third part,) (^Seal.) Signed, sealed, and delivered, in presence of us State of |ss. County of Be it eemembbred, That on this day of A.D. 18 before the undersigned, a within and for the county of and State of personally came (names of all the parties executing the deed) , who are personally known to me to be the same persons whose names are subscribed to the foregoing instru- ment of writing, as parties thereto, and acknowledged that they executed the same for the uses and purposes therein mentioned. In testimony whereof, I have hereto set my hand and affixed my official seal, at my office in the day and year first above written. {^Signature.) (Seal.) (35.) DEED OF TEUST TO SECURE A DEBT. FULLER FORM, AND WITH RELEASE OF DOWER. This deed. Made and entered into this day of eighteen hundred and sixty- by and between (name and occu- pation of the debtor who is grantor), and (name of the wife of the grantor), of (residence) , parties of the first part, and (home of the grantees who are . the trustees), of (residence), parties of the second part, and (name, residence, and occupation of the creditor for whose benefit the trust ii created) , of party of the third part, witnesseth, that the said parties of the . first part, in consideration of the debt and trust hereinafter mentioned and 310 THE PROPERTY RIGHTS OF created, and of the svim of one dollar to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain, and sell, convey, and confirm, unto the said parties of the second part, the following-described real estate, to wit (Jiere describe carefully the land or premises granted, by metes and bounds, as directed in Form 19.) To HAVE AND TO HOLD the Same with the appurtenances, to the said parties of the second part, and to the survivor of them, and to their suc- cessor hereinafter designated, and to the assigns of the said parties of the •second part, or of said survivor, or of said successor and his heirs, for ever. In trust, however, for the following purpose: Whereas the said (name of the grantor and debtor), (here describe the debt, and if a promissory note is given, describe that, or set forth a copy of it), and has also agreed and cove- nanted, to arid with the said party of the third part and his indorsees or assignees, to cause all taxes and assessments, general and special, to be paid within the times required by law, whenever imposed upon said prop- erty, and has also further covenanted and agreed, to and with said party of the third part, his indorsees or assignees, that he will keep the improve- ments upon said property constantly insured in some good and responsible insurance office or offices, to be approved by said party of the third part, his indorsees or assignees, in a sum not less than dollars, until said notes are (or note is) fully paid, and will assign the policy or policies of insurance to said party of the third part, his indorsees or assignees, with full power to demand, receive, and collect any and all moneys accruing under said insurance, and the same to apply to the payment of said notes and the interest that may accrue thereon, unless otherwise paid, when the same become due, and has also covenanted and agreed, to and with said party of the third part, his indorsees or assignees, that there shall not, at any time while said notes remain unpaid, be any mechanics' liens filed or taken, upon the real estate herein described, or upon the buildings which now are, or may hereafter be, erected upon said real estate, and that should said party of the first part fail or neglect to pay said taxes, when the same are bylaw due and payable, or fail or neglect to effect insurance and assign the policy orpolioies as above provided, or fail or neglect to keep said real estate free from mechanics' liens, the said party of the third part, his in- dorsees or assignees, may, at his option, consider the notes above mentioned and described as having each and all become due and payable, though not then due by the tenor and effect thereof, and may require the said parties of the second part, or the survivor of them, or their successor in trust, to sell the property above described as hereinafter provided, or may pay said taxes, or the premium for such insurance, or the amount of said mechan- ics' liens, and the amount or amounts so paid, together with interest thereon, at the rate of ten per cent per annum, shall be taken and con- sidered as a part of the amount secured hereby, and to be paid and refunded out of the proceeds of sale, should such sale be made, as herein- after provided. Now, if the said notes be well and truly paid, as the same severally become due and payable, according to the tenor and effect of said notes, jvnd each of them, and if the said covenants and agreements in regard to. ' A CITIZEN OF THE UNITED STATES. 811 taxes, insurance, and mechanics' liens be faithfully-kept and performed, and all moneys paid by said party of the third part, his indorsees or assign- ees, on account of said taxes, insurance, and mechanics' liens, are refunded, with the interest thereon, as above provided, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but should default be made in the payment of the said notes, or either of them, or any part of either of them, or of the interest that may accrue thereon, or any part thereof, as the same severally become due and payable, or if the said parties of the first part fail or neglect to pay said taxes, -when due and payable, or to insure the buildings on said property, or to keep the same free from mechanics' liens, as provided in the foregoing covenants and agreements, or to refund to said party of the third part, his indorsees or assignees, the amount paid by him or them for said taxes, insurance, or mechanics' liens, ■with interest thereon, as above provided, then this deed shall remain in force, and the said parties of the second part, or either of them, or the sui-vivor of them, or in the event of the death of both, of them, or absence from this State, or their refusal to act, or other disqualification for the performance of the duties of this trust, then, at the request of the holder of said notes, the sheriff of the county of for the time being (who shall thereupon become the successor of said trustees, and of the survivor of them, to the title of said property, and the same become vested in him, in trust, tor the purposes and objects of these presents, with all the powers, duties, and obligations thereof), may proceed to sell said described property, or any part thereof, at public vendue, to the highest bidder, for cash, at the (stale the place of sale), first giving twenty days' public notice of the time, terms, and place of said sale, and the property to be sold, by advertisement in some news- paper printed in the English langmge, and published in the county of and upon such sale, the said parties of the second part, or either of them, or the survivor of them, or their successor in trust, the sheriff of said county, as the case may be, shall execute and deliver a deed or deeds, in fee-simple, of the property sold, to the purchaser or purchasers thereof (a recital wherein of the request of the holder of said notes that they should proceed to sell, of the publication of said notice, and in case of sale by the sheriff of said county, of the happening of any or either of the events making him successor in this trust, shall be received in all courts of law or equity, and to all intents and purposes, as full and sufficient proof thereof) , and shall receive the proceeds of said sale, out of which shall be loaid, first, the cost and expenses of executing this trust, including com- pensation to said trustee, or said sheriff, for their oi'his services, next the amount paid by said party of the third part, or his indorsees or assignees, for taxes, insurance, or mechanics' liens, with ten per cent per annum interest thereon, from the date of the payment thereof, and next, the amount remaining unpaid upon the principal note above described, together with all of the interest notes then due, and so much of the interest note next falling due, as may be necessary to satisfy the interest on said prin- cipal note at the rate of per cent per annum, from the date when the preceding interest note became due, up to the day of sale, it being distinctly understood and agreed between the parties hereto that the fail- S12 THE PROPERTY RIGHTS OF ure to pay any one of said notes, principal or interest, when due and pay- able, shall cause the principal note to become immediately due and payable, though not then due by the terms, tenor, or effect thereof, and the re- mainder, if any, shall be paid to the said parties of the first part, or their legal representatives. And the said parties of the second part covenant faithfully to perform and fulfil the trust herein created. In witness whereof, The said parties have hereunto set their hands and seals, the day and year first above written. (^Signature of grantor.') (^Seal.) (^Signature of grantor's wife.') (^Seal.) (^Signature of trustee.) (^Seal.) (^Signature of other trustee.) (Seal.) (signature of creditors.) {Seal.) Signed, sealed, and delivered, in presence of State or County of Be it remembered, That on this day of eighteen hundred and sixty- before me, the undersigned, came (names of the parties who execute. the deed), who are personally known to me io be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged the same to be their act and deed, for the purposes therein mentioned. And the said having been by me first made acquainted with the contents of said instrument, on an examination sepa- rate and apart from her husband, acknowledged that she executed the same freely, and without compulsion or undue influence of her said husband. In testimony whereof, I have hereunto set my hand and seal of office, the day and year first above written. (36.) TRUST-DEED TO SECURE A NOTE. SHORTER FORM, BUT WITH WARRANTY AND RELEASE OF HOMESTEAD AND DOWER. This indenture witnesseth, that (name, res'lence, and occupation of grantor), and (name of the wife of grantor) , -wiie ol the grantor herein, in consideration of the indebtedness hereinafter mentioned, and one ($1) dollar to them paid by (name, residence, and occupation of the trustee), grantee , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, remise, release, and convey unto the said grantee , the fol- lowing-described lot ; piece , or parcel of land, situate in the county of and State of to wit (liere describe care- fully the land or premises granted, as directed in Form 19). To HAVE AND TO HOLD the Same, with all the privileges thereunto or in any wise appertaining, and all the estate, right, title, interest, claim, or A CITIZEN OF THE UNITED STATES. 813 demand in and to the same, either now or -which maybe hereafter acqidred, unto the said grantee, his heirs and assigns. In trust, neyertheless, for the following purposes : Whereas, the said (name of the grantor), grantor herein, is justly indebted upon a certain promissory note, bearing even date herewith, pay- able to the order of (here describe the note) . Now, in case of default in the payment of said note or any part thereof, or the interest accruing thereon, according to the tenor and eifeot thereof, or in the payment of any taxes or assessments, ordinary or special, which may be levied or assessed against said premises during the continuance hereof, on the application of the legal holders of the said note, the said grantee (full power being hereby given), or his legal representatives, after having advertised such sale days in a newspaper published in or by posting up written or printed notices in four (4) public places in the county where said premises are situate (personal notice being hereby expressly waived), shall sell the said premises or any part thereof, and all the right and equity of redemption of the said grantor, or his heirs, executors, administrators, or assigns therein, at public vendue, to the highest bidder for cash, at at the time appointed in the said advertisement, or may adjourn the sale from time to time at discretion, and as the attorney of the said grantor, for such purpose hereby constituted irrevocable, or in the name of the said grantee or his legal representatives, shall execute and deliver to the purchaser or purchasers thereof, deeds for the conveyance in fee of the premises sold, and shall apply the proceeds of sale (1st) to the payment of all advances made by the said party of the second part for taxes and assessments; and expenses for advertising, selling, and conveying as aforesaid, including attorney's fees, and (2d) the amount due on said note, (3d) rendering the overplus, if any there be, to the said grantor or legal representatives, at the oifice of the said grantee in and it shall not be the duty of the purchaser to see to the appUcation of the purchase-money. And the said (names of the grantor and of his wife) , parties of the first part, hereby expressly waive, release, and relinquish unto the said party of the second part, the said grantee, his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads; provided, that the said grantor and his heirs and assigns may hold and enjoy said premises, and the rents, issues, and profits thereof, until default shall be made as- aforesaid; and that when the said note and all expenses accruing hereby shall be fully paid, the said grantee or his legal representatives shall reconvey all the estate acquired hereby in the said premise's, or any part thereof, then remaining unsold, to (and at the cost of) the said grantor, or his hpirs or assigns. And the said grantor covenants with the said grantee and with his legal representatives and assigns that he is seized in fee of the said premises, and has good right to convey the same in form aforesaid, that they are free from all liens or incumbrances of whatever name or nature, and that ha 314 THE PROPERTY RIGHTS OF ■will warrant and defend the same against all claims whatsoever, and will pay all taxes or assessments levied or assessed on the said premises, or any part thereof, during the continuance hereof, and pay the same ten days before the day of sale thereof. Witness the hands and seals of the said (names of grantor and his wife), this day of a.d. 186 (^Signature of grantor.) (^Seal.) (^Signature of wife of grantor.) (^Seal.) In presence of State op .„]■ County. On the day of eighteen hundred and sixty- before pie of the county of in the State of appeared {name of the grantor) , personally known to me to be the real person whose name subscribed to the foregoing deed of trust, as having executed the same, and then acknowledged the execution thereof as free act and deed for the uses and purposes herein mentioned. And the said (name of the wife of yrantor) (who is personally known to me to be the same person who subscribed the said instrument of writing), having had the contents of the said instrument made known and fully explained to her, and she also by me being fully informed of her rights under the homestead laws of the State, and being by me examined, sep- arate and apart from her said husband, did acknowledge said instrument to be her free act and deed; that she executed the same, and relinquished her dower in the lands and tenements therein mentioned, and also .all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compulsion of her husband, and that she does not wish to retract. Given under my hand and official seal, this day of A.D. 186 {Signature. {Seal.) (37.) DEED FROM TRUSTEES. This deed. Made and entered into this day of in the year eighteen hun dred and by and between (names of trustees) , party of the first part, and (name, residence, and occupation of grantee), party of the second part, witnesseth, that whereas {name of the parly who conveyed the estate to the trustees), by deed dated the day of 186 • recorded in the recorder's office of county. State of in book conveyed the property hereinafter described, in trust to said (name of trustees) to secure the payment of certain promis- sory notes in said deed described; and whereas (here describe the non-pay- ment or other default which has authorized the sale by' the trustees) and the paxfcy herein of the first part, at the request of the legal holder of said promissory notes acting in pursuance of the provisions of said deed of A CITIZEN OF THE UNITED STATES. 315 trust, and having first given days' public notice of the time, terms, and place of sale, and of the property to be sold, by an advertise- ment inserted on the . day of A.D. inthe a daily newspaper printed in the city of and continued to the day of sale (as will appear by the copy of said advertise- ment and affidavit of publication thereof hereto annexed as a part of this deed), did proceed to sell the property described in said deed at public vendue to the highest bidder for cash, at in the city of on the day of 186 between the hours of ten o'clock in the morning and five o'clock in the afternoon of said day, when and where the same was struck off to (the name of the purchaser who is the grantee) as the highest and last bidder therefor, at the price and sum of dollars, full payment wliereof is hereby acknowledged: now, said party of the first part, by virtue of the proceedings aforesaid, and in consideration of the sum of dollars to him in hand paid by said party of the second part, does by these presents bargain, sell, and convey to said . (name of the grantee) all the right, title, and interest (which by virtue of said trust-deed and the proceedings aforesaid he may or can bar- gain, convey, or sell) in and to the property described in said deed of trust, to ■nit: (here describe the land or premises granted in the same way in which they are described in the deed of trust under which the trustees act) . To HAVE AND TO HOLD the Said described premises unto said (name of the purchaser) , and unto his heirs and assigns, for ever. In witness whereof, the said party of the first part has hereto set his hand and seal, the day and year first herein above written. (Signature.) (Seal.) (Signature.) (Seal.) In presence of State of "^ >-8S. County. ) Be it remembered, that on this day of a.d. 186 before me, the undersigned personally came who are to me personally known to be the same persons whose names are subscribed to the foregoing instrument of writing as parties thereto, and they acknowledged the same to be their act and deed for the purposes therein mentioned. ' (Signature.) (38.) DEED OF MASTER IN CHANCERY. This indenture, Made this day of a.d. 18 between (name of grantor), Master in Chancery, in and for the county of and State of of the first part, and (name of grantee) of the second part, witnesseth: That whereas, at the term of the court of the said county of and State of in the year of our Lord a.d. 18 in a certain suit and 316 TEE PROPERTY RIGHTS OF proceedings in chancery, pending in said court, wherein ■were complainant , and were defendant , to obtain a decree for the sale of the property hereinafter described, and for other relief, it was ordered, adjudged, and decreed by the court, that (here set forth the decree under which the sale is made) ; and the Master in Chancery, in and for the county of and State of was appointed to execute the said decree, and to make, execute, and deliver to the com- plainant a deed to the said premises as aforesaid, conveying to {the name, residence, and occupation of the grantee") , all the interest and title of the defendant to said premises. Now, THEREPORB, KNOW ALL MEN BY THIS DEED, That T, Master in Chancery as aforesaid, in consideration of one dollar to me paid by the said party of the second part, the receipt whereof I acknowledge before the execution hereof, and by virtue of the decree aforesaid, have granted, bargained, and sold, and do hereby grant, bargain, and sell, unto the said party of the second part, his heir's and assigns, for ever, the follow- ing-described real estate, lying in the county of and State of to wit: (here describe carefully the land or premises granted, as directed in Form 19). To HAVE AND TO HOLD the Said premises, with all the appurtenances . thereto belonging, unto the said party of the second part, his heirs and assigns, for ever. In testimony whereof. The said Master in Chancery of county, in the State of has hereto set his hand and seal, the day and year first above written. (Signature.) (Seal.) In presence of Staxe op County. I, clerk of the county court in and for the county of and State of do hereby certify that the above-named whose name appears signed to the foregoing deed, is personally known to me to be the same person described therein, and acknowledged to me that, as Master in Chancery aforesaid, he executed the said deed freely for the uses and purposes therein mentioned. Given under my hand and official seal, at this day of A.D. 18 (Signature.) Clerk. (Seal.") (39.) SHERIFF'S DEED ON EXECUTION, IN USE IN THE WESTERN STATES. Whereas (the name of the plaintiff in the suit in which the execution is- sued) did, at the term, in the year eighteen hundred and sixty- bf the court for the county of in the State of recover a judgment against (name of the defendant in A CITIZEN OF TEE UNITED STATES. 317 Ihat suit) for the sum of and costs of suit, upon which judgment an execution was issued, dated on the day of in the year eighteen hundred and sixty- directed to the sheriff of county, to execute, and by Tirtue of said execution (name of the sheriff), of then sheriff of said county, levied upon the lands hereinafter described, and the same were struck off and sold to (name of the purchaser at the sheriff's sale), he being the highest and best bidder therefor, and the time and place of the sale thereof having been duly advertised according to law. And the said (name of the purchaser) having duly assigned his certificate of purchase to (name of the grantee). Now, THEREFORE, KNOW ALL BY THIS DEED, That I (name of the sheriff), sheriff of said county of in consideration of the premises, have granted, bargained, and sold, and do hereby convey to the said (name of the grantee), his heirs and assigns, the following-described tract of land, to wit: (here describe carefully/ the land or premises granted, as directed in Form 19). To HAVE AND TO HOLD the Said described premises, with all the appur- tenances thereto belonging, to the said (name of the grantee) and his heirs and assigns for ever. Witness my hand and seal, this day of in the year of our Lord one thousand eight hundred and sixty- (Signature.) (Seal.) Sheriff of County. In presence of State of ") [-83. County op ) I, • clerk of the court of county, do certify that sheriff of county, personally known to me to be the real person whose name is subscribed to the within annexed deed, this day acknowledged before me that he executed the said deed, as such sheriff, voluntarily and freely, for the use and purposes therein set forth. Given under my hand, and the seal of said court, this day of eighteen hundred and sixty- (Signature.) Clerk. (Seal.) (40.) SHERIFF'S DEED, IN USE IN NEW ENGLAND. Know all men by these presents, That I (name of the deputy sheriff selling), of in the coiinty of and State of and a deputy sheriff under (name of the sheriff), Esq., sheriff of said county, having, on the . day of in the year of our Lord one thousand eight hundred and by virtue of a writ of execution, 318 THE PROPERTY RIGHTS OF ■which was issued upon a judgment, recovered at the term of the court . holden at within and for the county of on the in the year of our Lord eighteen hundred and by (name of the plaintiff in the suit') , of in the county of against (name of the defendant in that suit), of in the county of for the sum of . « dollars and cents damage and costs of suit taxed at dollars and cents, seized and taken all the right in equity which the said had on the day of in the year of our Lord eighteen hundred and being the time when the same was attached on inesne process of redeeming the following-described mortgaged real estate, to wit (here describe carefully the land or premises granted, as directed in Form 19); and having on the day of last, being thirty days at least before the time of the sale hereinafter mentioned, given notice in writing to the said (name of the defendant ) of the time and place of sale, and having posted up notifications thereof in one public place in said town of and in one public place in each of the towns of and being two towns adjoining said town of . and also having caused an advertisement of the time and place of sale to be published three weeks successively, before the day of sale, in the public newspaper called the printed at in said county of on the day of in the year of our Lord eighteen hundred and made sale of said right in equity of redemption at public auction, to (name of the purchaser), of in he being the highest bidder for the same, for the sum of dollars. Now, therefore, in consideration of said sum of dollars to me paid by the said (name of the pur- chaser), the receipt whereof I do hereby acknowledge, I have given, granted, bargained, and sold, and do, by these presents, give, grant, bargain, sell, and convey, to the said (name of the purchaser), his heirs"and assigns, for ever, all the right in equity which the said (name of the defendant) had of redeeming the aforesaid mortgaged real estate, at the time aforesaid. To have and to hold the same to the said (name of purchaser), his heirs and assigns, to his and their use for ever; subject, however, to be redeemed agreeably to the law in such case made and provided. And I, the said (name of grantor) , in my said capacity of deputy sherifi, do covenant with the said (name of purchaser) as aforesaid, that, in making said sale, and in every thing concerning the same, I have complied with and observed the rules and requisitions of the law for making sales of rights in equity to redeem real estate. But I do not warrant or defend to the said (name of the purchaser) that the said (name of the defendant) had any right, title, or interest in said estate at the time aforesaid. In witness whereof, I, the said in my said capacity of deputy sheriff, have hereunto set my hand and seal, this day of in the year of oar Lord one thousand eight hundred and (^Signature.) (Seal.) Signed, sealed, and delivered in presence of A CITIZEN OF THE UNITED STATES. 319 ss. 18 . Then the ahove-named personally appeared,, and acknowledged the above instrument by him signed to be his free, act and deed. Before me, Justice of the Peace. (41.) SHERIFF'S TAX-DEED, IN USE IN THE WESTERN STATES. Know all men by these pkesents, That whereas, at the term, a.d. ]^ of the Court of county, a judg- ment was obtained in said court, in favor of the State of against the following-described lot , piece , or parcel of land, for the sum herein specified, to wit, the sum of (here state in writing the amount of the tax); said sum being the whole amount of taxes, interest, and costs assessed upon said lot , piece , or parcel 'of land, for the year 18 And whereas, on the day of a.d. 18 (name of the collector of taxes) , then collector of taxes of the county afore- said, by virtue of a precept or order issued out of the Court of the county aforesaid; dated the day of a.d. 18 and dh-ected to the said as aforesaid, did expose at public sale, at the court-house, in the county aforesaid, in conformity with all the requirements of the statutes in such case made and provided, the said lot , tract , or parcel of land above described, for the satisfaction of the judgment so rendered, as aforesaid. And whereas, at the time and place aforesaid (name of the purchaser), of the county of and State of having offered to pay the aforesaid sum, amounting to the sum of dollars and cents, for the (here state what part or portion of the land was sold) of said lot ; piece , or parcel of land, as follows, to wit, the sum of dollars cents, which was the least quantity of said lot , piece , or parcel of land bid for, the said lot , tract , or parcel of land was stricken off to (name of the purchaser) at that price. And whereas, the said purchaser has now made and delivered to me an affidavit of having complied with all the requirements of the statute and constitution of the State of necessary to entitle said purchaser to a deed for the premises so sold to him as aforesaid; and whereas the said (name of the purchaser) la&s duly as- signed the certificate of purchase of the land above described unto (the name of the grantee): Now, therefore, I, sheriff of the county of for and in consideration of the said above-named sum, amounting to the sum of dollars and cents, paid to (the collector of taxes), of said county of . by the said (Ike name of the purchaser), at the time of the aforesaid sale, and in considera- tion of (the amount of costs and fees) -^-^ dollars to me paid by said (name of grantee), and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said (name of the grantee), his heirs and assigns, the premises so sold as aforesaid, situated in the county of and State of to wit (here describe carefully the land or premises 320 THE PROPERTY RIGHTS OF granted, hy metes and hounds, and contents or quantity , or boundary marks or monumertts). To HAVE AKD TO HOLD unfo him, the said (the^ nrnne of the grantee), heirs and assigns, for ever, subject, however, to all the rights of redemp- tion provided by law. In witness whekeop, I, sheriff as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name and aflked my seal, this day of a.d. 18 (^Signature.) (Seal.) Sheriff of County. . State of '^ >-ss. County of ) I, in and for said county and State, .do certify that sheriff of said county, who is personally known to me to be the real per-i" son who executed and subscribed his name to the foregoing deed, appeared before me this day, and acknowledged that he had executed the same as such sheriff, freely and voluntarily, for the uses and purposes therein set forth. In attestation whereof, I have hereunto set my hand and attached the seal of our said court, at my office in in said county and State, this day of a.d. 18 (^Signature.) Clerk. {Seal.) (42.) DEED OF EXECUTOR, IN USE IN THE EASTERN STATES. Know all men by these presents. That whereas (name of the execu- tor) , in the county of and State of executor of the last will of (name of the testator), late of deceased, by an order of the Court of Probate, held at within and for the county of on the day of in the year one thousand eight hundred and was licensed and em- powered to sell and pass deeds to convey certain real estate of the said deceased; and whereas, the said executor having given public notice of the intended sale, by causing notifications thereof to be published once a week, for three successive weeks, prior to the time of sale, in the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said deceased hereinafter described, to (name, residence, and occupation of the purchaser), for the sum of dollars YiTin ^^ being the highest bidder therefor. Now, therefore, know yb. That I, the said executor as aforesaid, by virtue of the power and authority in me vested as aforesaid, and in consideration of the aforesaid sum of dollars yj^, paid by the said (name of purchaser) , the receipt whereof is hereby acknowl- A CITIZEN OF THE UNITED STATES. 321 edged, do, by these presents, give, grant, sell,^nd convey unto tlie said (lierr. describe carefully the land or premises grantm, by metes and bounds, and contents or quantity, or boundary marks or monuments, and refer to the deed of the land to the testator, under which he held it). To HAVE AND TO HOLD the afore-granted premises, with all the privi- leges and appurtenances to the same belonging, to him. the said (name of purchaser), and his heirs and assigns, to his and their use and behoof for ever. And I, the said (name of executor), for myself abd my heirs, execu- tors, and administrators, do hereby covenant with the said (name of purchaser) , and his heirs and assigns, that in pursuance of the order afore- said, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath and gave the bond by law required, previous to fixing on the time and place of sale. In witness whereof, I, the said executor as aforesaid, have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and sixty- (Signature.) (Seal.), Signed, sealed, and delivered in presence of »s. A.D. 186 Then personally appeared the above-named execut and acknowledged the foregoing instrument to be free act and deed. Before me, Justice of the Peace. (43.) DEED OF EXECUTOR, IN USE IN THE MIDDLE STATES. This indenture, Made the day of in the year one thousand eight hundred and between (name of executor), executor of the last will of (name and residence of testator) , of the first part, and (name, residence, and occupation of the purchaser, who is the grantee), of the second part, Witnesseth, that the said party of the first part, by virtue of the power and authority to him given in and by the said last will and testament, and for and in consideration of the sum of lawful money of the United States of America, to him in hand paid at or before the ensealing and-delivery of these presents, by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and adminis- trators, for ever released and discharged from the. same by these presents, have granted, bargained, sold, ahened, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, release, convey, and confirm, unto the said party of the second part, and his heirs and assigns, for ever, all (here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks, or monuments, and refer to the deed of the land to the testator, under which he held it). Together with all and singular the edifices, buildings, rights, mem- bers, privileges, advantages, hereditaments, and appurtenances to the same belonging or in any wise appertaining; and the reversion and reversions, 21 322 THE PROPERTY RIGHTS OF remainder and remainders^ents, issues, and profits thereof. And also all the estate, right, title, interest, claim', and demand whataoeTer, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, and which the^aid party of the first part hath, by virtue of the said last will and testament, or otherwise, of, in, and to the same, and every part and parcel thereof, with the appurtenances: To have and to hold the said premises above mentioned and described, and hereby granted and conveyed, or intended so to be, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, ajid behoof for ever. And the said party of the first part, for himself and for his heirs, executors, and administrators, does for himself and for his heirs, executors, and administrators, covenant, grant, promise, and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the second part, his heirs and assigns, shall and lawfully may from time to time, and at all times for ever hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy all and singular the said hereditaments and premises hereby granted and conveyed, or intended so to be, with their and every of their appur- tenances, and receive and take the rents, issues, and profits thereof, to and for his and their own use and benefit, without any lawful let, suit, hin- derance, molestation, interruption, or denial whatsoever, of, from, or by them the said party of the first part, his heirs or assigns; or of, from, or by any other person or persons whomsoever lawfully claiming, or who shall or may lawfully claim hereafter, by, from, or under him, or by, from, or under his right, title, interest, or estate. And that free and clear, and freely and clearly discharged, acquitted, and exonerated, or otherwise well and sufficiently sayed, defended, kept harmless, and indemnified by them, the said party of the first part, his heirs and assigns, of, from, and against all and aU manner of former and other gifts, grants, bargains, sales, mort- gages, judgments, and all other charges and incumbrances whatsoever, had, made, committed, executed, or done by him the said party of the first part, or by, through, or with his acts, deeds, means, consent, procurement, or privity. In WITNESS WHEREOF, The parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above writteni (^Signature of party of the first part.) (^Seal.) (^Signature of party of the second part.') {Seal.) Sealed and delivered in the presence of State of County. This day personally appeared before the undersigned (name and office of the magistrate) , within and for the county and State aforesaid (name of the executor), executor of the estate of (name of deceased), deceased, who personally known to me to be the person whose name as such is sub- scribed to the foregoing deed, as having executed the same, and acknowl- edged that he had as such executor subscribed to the foregoing deed, as A CITIZEN OF THE UNITED STATES. 323 having executed the same, and acknowledged that he had aa such executor executed the same for the uses and purposes therein expressed. In witness wheebop, I have hereunto set my hand and seal, at my office in said county, this day of a.d. 18 {Signature.) {Seal.") (44.) DEED OF ADMINISTRATOR OF INTESTATE. « This indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name and residence of administrator) , administrator of the goods and estate of (name of intestate), of who died intestate, party of the first part, and (name, residence, and occupation of the grantee), of the county of and State of party of the second part: Whereas, at the term, a.d. 18 of the court, ■within and for the county of and State of in a certain petition or cause therein pending, in which the said (name of the grantor), administiator of the goods and estate of (name of the deceased), deceased, was petitioner, and (names of the defendants who are minor children of the deceased, and of the widow of deceased, and of the guardian of the minors) , were defendants, the following order and decree were rendered, that is to say: State op ) >-S8. COCTNTT. J, In . Court Term, a.d. 18 (Name of the pdministrator) , administrator of the goods and estate of Qname of deceased) , deceased, vs. (names of the defendants, who should be the widow and heirs of the deceased) . And now comes the petitioner by his solicitor, and presents his petitioa herein, and it satisfactorily appearing to the court that the defendants have been duly served with summons herein by the sheriff of county, and thqit the defendants are non-residents of the State of and have been duly notified of this proceeding by publication as required by law, it is therefore ordered by the court that the said defendants be called. And they, being three times solemnly called, came not, nor any one for them, but herein failed and made default, which it ordered to be entered of record; and it further appearing to the court that the said (namds of defendants who are minors), .are minors, and have a guardian, to wit, the said (name of the guardian). And afterwards the said (name of guardian), as such guardian, comes and files his answer herein, neither admitting nor denying the allegations in said petition Goritain«d, but re- serving the right of said minor byrequiring prbof. And this cause having been brought on to be heard upon the petition herein taken as confessed by the answer of said guardian and the exhibits and proofs, and 324 THE PROPERTY RIGHTS OF the testimony of (name of the witness or witnesses called in the case) , witness, duly sworn, who testified herein in open court, and it satisfactorily appear- ing to the court from the evidence that the said (name of the deceased) departed this life on or about the day of . a.d. 18 leaving (name of his widow) his widow, and (names of his children) , his children and only heirs at law; that the petitioner herein was duly ap- pointed administrator of the goods and estate of said (name of deceased), deceased, and that letters of administration were duly granted to him by this court, bearing date on the day of a.d. 18 and the court having ascertained that said petitioner as aforesaid has made a just and true account of the condition of the estate, of said deceased to this court, and that the personal estate of said deceased is not sufficient for the payment of the debts of the said (name of the deceased), deceased; and the court having found the amount of the deficiency aforesaid to be the sum of dollars, besides interest and costs, and it fui'ther ap- pearing to the court that the said (name of the deceased) died seised of the following-described real estate, situate in the county of and State of to wit (here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks, or monuments, and refer to the deed of the land to the deceased, iinder which he held it), and the court having ascertained that it will be necessary to sell the said real estate to pay the deficiency aforesaid, with the expenses of administration now due and to accrue ; it is therefore ordered, adjudged, and decreed, that the said petitioner proceed, according to law, to adver- tise and make sale of theireal estate above described, or so much thereof as may be necessary to pay the debts now due from said estate, and the costs of administration now due and to accrue. And it is ordered and decreed by the court, that said sale shall be made on the following terms, viz. (here set forth the terms, place, time, and manner of the sale, as pre- scribed in the decree), which teims shall be distinctly set forth in all the advertisements of said sale. It is further ordered that upon such a sale being made, said (name of said administrator) shall make and execute to the purchaser or pur- chasers of said real estate, good and sufficient deed or deeds to convey the interest of said deceased therein at the time of his decease, and that said (name of the administrator) report his action in the premises with all con- venient speed. And it is further ordered, that his cause stand continued for said report. And whereas, in pursuance of said order and decree, the said party of the first part did on the day of a.d. 18 be- tween the hours of ten o'clock in the forenoon and five o'clock in the after- noon of such day, at (place of sale), expose to sale by public vendue, to the highest bidder, the, lands and real estate so ordered to be sold in said decree, having first given notice of the time, terms, and place of such sale, with a description of such lands and real estate, according to the terms and requirements of said order and decree, and of the statute regulating such sales, as will more fully and at large appear by the report of such sale, made by said party of the first part, as administrator as aforesaid, to the said court. A CITIZEN OF THE UNITED STATES. 325 And wheeeas, at such sale, the said party of the second part heoame the purchaser of the foUo-wing-described lands and real estate, being the highest bidder therefor, at the following price: that is to say (liere state what part, or the whole, of the above-described lands were sold, and at what price). Now, THEREFORE, This indenture witnesseth, that the said party of the first part, by virtue of the order and decree aforesaid, and in consideration of the premises, and for the further consideration of the sum of dollars, to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey, unto the said party of the second part, » heirs and assigns, the lands and real estate last above described as having been sold to the said party of the second part, to have and to hold the same with all the appurtenances there- unto belonging or in any wise appertaining,*to the only proper use, bene- fit, and behoof of the said party of the second part, and his heirs and assigns, for ever. And the said party of the first part, for the considera- tion aforesaid, covenants with the said party of the second part, and his heirs and assigns, that he has in all respects complied with the order and decree aforesaid, and with the directions of the law generally in such case made and provided. In witness whereof. The said party of the first part, as administra- tor as aforesaid, has hereunto set his hand and seal, the day and year first above written. (^Signature.') ( Seal.) Administrator of ( name of deceased) as aforesaid. In presence of State of f [ ss. County. ) This day personally appeared before the undersigned, within and for the county and State aforesaid, executor of the estate of (name of deceased), deceased, who personally known to me to be the person whose name as such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such exec- utor subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor executed the same for the uses and purposes therein expressed. In witness whereof, I have hereunto set my hand and seal, at my office in said county, this day of a.d. 18 (Signature.) (Seal.) (45.) DEED-POLL OF GUAHDIAN OF A MINOR. Know all men by these presents. That whereas (name of guardian and grantor), of in the county of and State of 826 THE PROPERTY RJGSTS OF guardian of (name of the ward), a minof djild of (name of the father of 'S« minor), by an order. of ttie JProbate Court, held *it •within and for county of on the day pf in the year one thousand eight hundred iind was licensed and empowered to sell and pass deeds to convey certain real estate of the said minor; and -whereas, I, the said guardian, having given public notice of the intended sale, by causing nptiflpajiipps thereof to be published once a week, for three successive weeks, prior to the time of sale, in the newspaper oalledthe printed at and haying first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the ordej and notice aforesaid, sell by public auction the reaJ estate of the said minor hereinafter described, to (the name, residence, and occupation of the purchaser and grantee'), for the sum of dollars yj^, he being the highe^ bidder therefor. Now, THEKEFOBB, KNOW TB, That I, the ,sadd (name of the guardia,n and grantor) , guardian as aforesaid, by virtue of the power and authority in me vested as aforesaid, and in consideration of the aforesaid sum of dollars ^^ ^ ''^^ P^'id by the said the receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto the said (name of the purchaser and grantee) a certain lot or parcel of land, situated, bounded, and described as follows (here describe the premises as directed in Form 19). To HAVE AND TO HOLD the aforc-grauted premises, with all the privi- leges and appurtenances to the same belonging, to him the said (purchaser'' s name) and his heirs and assigns, to his and their use and behoof for ever. And I, the said (name of guardian), for myself, my heirs, executors, and administrators, do hereby covenant with the said (name of purchaser), and his heirs and assigns, that in pursuance of the order aforesaid, I gave pub- lic notice of the said intended sale, in manner aforesaid, and that I took the oath by law required, previous to fixing on the time and place of Bale, and gave the bond previous to said sale. In witness whereof, I, the said guardian as aforesaid, have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and (Signature-) (Seal.) Signed, sealed, and delivered in presence of ss. A.D. 18 Then personally appeared the above- named guardian, and acknowledged the forfegoing instrument to be firee act and deed. Before me, Justice of the Peace. (46.) DEED OF EEFEEEE Oljr FOBBCLOSIJRE, UT USE W THE MIDDLE STATES. This indenture. Made the day of in the year one thousand eight hundred and between (name and residence A CITIZEN OF TBE UNITED STATES. 327 of (he referee and grantor), a referee duly appointed as, hereinafter men- tioned, of the first part, and (name, residence, and occupation of the grantee), of the second part. Whbkkas, At a term of the (name of the court) court, on the day of one thousand eight hundred and it was among other things ordered and adjudged by the said court, in a cer- tain action then pending in the said court, between (names of plaintiff and defendant in the action) . That all and singular the mortgaged premises mentioned in the com- plaint in said action, and in- said judgment described, or so much thereof as might be sufficient to raise the amount due to the plaintiff for principal, interest, and costs in said action, and which might be sold separately, with- out material injury to the parties interested, be sold at public auction," according to the course and practice of said court, by or under the direc- tion of the said party of- the first part as referee thereby, duly appointed , for that purpose: that the said sale be made (here state the directions in the order of court as to the place and time of the sale) ; that the said referee give public notice of the time and place of such sale, according to the course and practice of said court, and that any of the parties in said action might beconfe a purchaser or purchasers on such sale ; that the said referee exe- cute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of conveyance for the same: And w^heeeas. The said referee, in pursuance of the said judgment of the said court, did on the day of one thousand eight hundred and sell at public auction at (the place of sale) the premises in the said judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said judgment; at which sale the premises hereinafter described were struck off to the said party of the second part for the sum of dollars, that being the highest sum bidden for the same. Now this indenture witness- eth, that the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursu- ance of the judgment of the said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money, so bidden as aforesaid, being first duly paid by the said party of the second part, the receipt whereof is hereby acknowl- edged, hath bargained and sold, and by these presents doth grant and con- vey, unto the said party of the second part, the premises aforesaid, situat?, bounded, and described as follows (describe here the premises sold, as directed in Form 19). To HAVE AND TO HOLD .all a-nd Singular the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said party of the second part, his heirs and assigns, io and for his and their only proper use, benefit, and behoof. In witness whekeof. The said referee as aforesaid, hath hereunto set his hand and seal, the day and year first :above written. (Signature.) (Seal.) Sealed and delivered in the presence of 328 TEE PROPERTY RIGHTS OF State oi' [■ ss. County. On the day of one thousand eight hundred and before me came known to me to be the individual described in, and who executed, the above conveyance, and acknowledged that he executed the same. (^Signature). (47.) DEED OF COLLECTOR OF TAXES. To ALL PERSONS TO WHOM THESE PRESENTS SHALL COME, I (jiame of collector), of in the county of and State of collector of taxes for said town of duly chosen and quaUfied at the last annual meeting of the inhabitants of said town, held on the day of last past sends greeting : Whereas, The assessors of said town of (name of the town), in their list of assessments committed to me, the said (name of the collector) , to collect, have assessed (name of the party for whose taxes the land is sold) , a resident owner of a certain tract of land situated in said bounded and described as follows, viz. (describe the premises as directed in Form 19), the sum of (amount of tax) and ^-^ dollars, as a tax on said premises for the year eighteen hundred and And WHEREAS, I, the said (name of the collector), have demanded pay- ment of said tax of (name of party taxed) more than fourteen days before proceeding to advertise and sell as hereinafter set forth. And whereas. The said (name of the party taxed) has given no written authority to any inhabitant of said town, as his attorney, to pay the' tax imposed on said ^land, and no mortgagee of said land has given written notice to the clerk of said town, that he the said mortgagee holds a mort- gage thereon, nor given written authority to any inhabitant of said town, as his attorney, to pay said tasT. And whereas, I, the said having given public notice of the time and place of sale of the said land, for the non-payment of said tax, by an advertisement thereof three weeks successively in the newspaper called the printed and published in ' in said county, the last publication of said advertisement being one week before the time of said sale: also by posting a Uke notice on said land three weeks before the time of said sale: and also by posting a like notice (here stale whatever other places the notice was posted at), being two public places in said town, three weeks before the time of said sale, which notices severally contained the name of the said (name cf the party taxed) and the amount of the tax assessed on said land; also a substantially accurate description of said land, did, on the day of instant, pursuant to the authority and notice aforesaid, no person appearing to pay said tax, and it being the opinion of me that the Said land could not be conveniently divided and a part thereof set off without injury to the residue, and judging it to be most for the public interest to sell the whole of said land, sell, at public auction, A CITIZEN OF THE UNITED STATES. 329 the said land above described, to (name of purchaser and grantee") , for the sum of and -j-yis- dollars, he being the highest bidder therefor. Now, TiiEREFOKB, KNOW TE, That I, the said (name of the collector), hj virtue of the authority in me vested as aforesaid, and in consideration of the aforesaid sum of and -j^ dollars, to me paid by the said (name of the purchaser), the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said all that said tract or parcel of land above mentioned and described, with the appurtenances thereto belonging. To HAVE AND TO HOLD the Same to him, the said grantee, his heirs and assigns, to his and their use and behoof for ever; subject, nevertheless, to the right of redemption, according to law. And I, the said grantor, do covenant with the said grantee, his heirs and assigns, that in making the said sale as above set forth, I have com- plied with, observed, and obeyed all the provisions of law for the sale of real estate for the non-payment of taxes. In witness whereof, I, the said collector, have hereto set my hand and seal, this day of in the year eighteen hundred and (Signature.) (Seal.) Executed and delivered in the presence of State of f [-88. County.) a.d. 18 Then personally appeared the above-named collector, and acknowledged the above instrument to be his free act and deed. Before me, Justice of the Peace. (48.) DEED OF ASSIGNEE, IN USE IN THE WESTEEN STATES. This indenture. Made this day of in the year of our Lord one thousand eight hundred and (a.d. 18 ) between (name, residence, and occupation of the assignee, who is the grantor), as assignee of (name, residence, and occupation of the assignor) , of the one part, and (name, residence, and occupation of the purchaser, who is grantee), of the other part: Whereas, The said (name of the assignor) being lawfully seised in Ijis demesne, as of fee, among other things, of and iu a certain lot, piece, or parcel of ground, situate in the county of and State of known and described as follows, to Wit (here describe the premises, as in Form 19). And being so thereof seised, did, on or about the day of in the year one thousand eight hundred and (a.d. 18 ), enter into a written contract with the said party of the second part for the sale of the above-described premises for the sum of dollars. SaO TEE PROPERTY RIGHTS OF And whereas, Tie said (name of the assignor) did, by Hs certain deed of assignment, bearing date the day ,of -A-d. \ 18 grant, bargain, iSeU, alien, remise, ,relea,se, convey, assign, transfer, and set over (with other property) the above-deacribed lot, piece, or parcel of ground unto the said party of the first part, his successors, executors, administrators, and assigns, for ever; in trust, nevertheless, to and for the uses and intent and purposes in said deed. of assignment mentioned and sft forth, reference thereto being had may fully and at large appear; whiQh said deed of assignment is recorded in book page of deeds, in the oflBice of the clerk of the Circuit Court of said county, and eS-q^cio recorder of deeds. And whekeas. The said assignor did not comply mth the said contract before the execution and delivery of the said deed of assign- ment to the said pai'ty of the first part. Now THIS INDENTURE WITNESSETH, That the Said (name of the assignee and grantor), assignee of said (name of the assignor), ioi and in consideratic^n of the sum of dollars (being the, balance of the purchase-money and interest due on said contract), unto him in hand paid by the said party of the second part, at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, by these presents does grant, bargain, sell, alien, release, and confirm unto the said party of the second part, and his heirs and assigns, all the above mentioned and described lot, piece, or parcel of ground, together with all and singular the rights, jhere- ditaments, and appurtenances thereunto belonging, or in any wise apper- tainiijg, and all the estate, right, title, interest, pi^operty, claim, and demand whatever, that he, the said assignor,; had and held at and immedi- ately before the execution and delivery of the said deed of assignment Jo said party of the first pai-t, and also all the right, title, interest, property, claim, and demand whatever, that the said party of the first part acquired in, under, or by virtue of the said deed of assignment by said assignor, to him the said party of the first part. To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in any wise appertaining, and all the estate,, right, title, interest, and claim whatsoever, either in law or equity, that said assignor had and held at the time of and immediately preceding the execution and deUvery of said deed of assignment to the said party of the first part, and all the right, title, interest, and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party Of the second part, his beirs and assigns, for ever. In WITNESS WHEREOF, The said party of the first part has hereimto set Ms hand and seal, the day and year first above written. (Signature of assignee.) (Seah) State of ') jCop^ty.i) 1, a in and for said county, in the State afoije- -eaid, do hereby certify that who is personally known to me as the real person whose name is subscribed to the within deed, appeared A CITIZEN OF THE UNITED STATES. 331 before me this day in person, and acknowledged tl?at he executed and delivered the said deed, as his free and Tpbmtary act, for the uses and pur- poses therein set forth. Given under my hand and seal, this day of in the year of our Lord one thousand eight hundred and (a.d. 18 ). (^Signature.') {Seal.) (48*.) ACKNOWLEDGMEST OF GRANTOR AND WIFE BEFORE COMMISSIONER FOR ANOTHER STATE. State of T Vsa. County of j Be it remembered, That on the day of . one thousand eight hundred and before me , commis- sioner for the State of (jiame of the State of which he is commissioner) , resi- dent in the of duly appointed, commissioned, and sworn to take acknowledgments and proof of deeds and other writings in the State of to be used or recorded in the said State of (name of the State of which he is commissioner), and to administer oaths and affir- mations, and to take depositions in the said State of to be used within the said State of appeared (name of grantor) and (name of wife of grantor) his wife, who are satisfactorily proven to me to be the individuals described in, and w;ho executed the within deed, from said (name of grantor), and wife to (name of grantee), by the oath of (witnesses to their identity), who being by me duly cautioned and sworn, deposed that he knew them, the individuals then present, to be the persons described in and who executed the within deed. The said and his wife, then and there acknowledged to me that they executed the said deed for the purposes therein mentioned; and the said (name of the wife) being examined by me privily, and apart from her said husband, and the contents and effect of the said deed being by me first duly explained to her, did then and there acknowledge that she executed the same for the purposes therein mentioned, freely and without compulsion of or from her said husband. In witness whereof, I have hereunto set my hand and affixed the seal of my office, on the day of in the year of our Lord one thousand eight hundred and {Signature,) (Seal.) (49.) A PROMISSORY NOTE, TO BE SECURED BY MORTGAGE. 18 ■ for value received promise to pay to dollars, at with interest at the rate of per cent per annum 332 TEE PROPERTY RIGHTS OF This note is secured by a deed of mortgage of eveu date herewith, from to which is duly stamped according to the internal revenue law. $ (Signature.') (50.) BOND, TO BE SECURED BY A MOETGAGE. Know all men by these pkesbnts, That I (name of ohligor), of in the county of and State of am held, hound, and obliged unto (name of obligee), of in the county of and State of in the sum of (penalty usually twice as much as the actual debt), to be paid to the said (the obligee), his executors, administrators, heirs, or assigns, and to this payment I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, this day of in the year The conditiok of the above obligation is such, that if I, the said (name of the obligor), or my heirs, executors, or administrators, shall pay or cause to be paid unto the said (name of the obligee) the sum of (here insert the amount of the debt or sum to be secured^, on the day of in the year with interest at per cent, payable six months from the date hereof, and every six months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect; and otherwise it shall remain in full force. And I further agree and covenant, that if any payment of interest be withheld or delayed for days after such payment shall fall due, the said principal sum, and all arrearage of interest thereon, shall be and become due immediately on the expiration of days, at the option of said (name of the obligee), or his executors or administrators. (Signature.) (Seal.) (Witness.) (51.) MORTGAGE WITHOUT POWER OF SALE AND WITHOUT WARRANTY, BUT WITH RELEASE OF HOMESTEAD AND OF DOWER. This indenture. Made this day of in the year of our Lord one thousand eight hundred and sixty- between (name, residence, and occupation of mortgagor) , and (name of wife), wife of said (name of mortgagor), parties of the first part, and (name, residence, and occupation of mortgagee) , party of the second part. Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of secured to be paid by a certain promissory note (or bond) (describe the note or bond). Now, therefore, this indenture WITNESSETH, That the said parties of the first part, for the better securing the payment of the money afore- said, with interest thereon, according to the tenor and effect of the said A CITIZEN OF TEE UNITED STATES. 333 note (or bond) above mentioned; and also in consideration of the further sum of one dollar to us in hand paid by the said party of the second part, at the delivery of these presents, the receipt whereof is hereby acknowl- edged, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto the said party of the second part, his heirs and assigns, for ever, all that (Jiere describe the premises, as directed in Form, 19). To HAVE AND TO HOLD THE SAME, Together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belong- ing, or in any wise appertaining. And also all the estate, interest, and claim whatsoever, in law as well as in equity, which the parties of the first part have in and to the premises hereby conveyed unto the said party of the second part, and his heirs and assigns, and to their only proper use, benefit, and behoof. And the said parties of the first part hereby expressly waive, release, relinquish, and convey unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever in and to the above-described prem- ises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. Provided always, and these presents are upon this exprkss CONDITION, That if the said party of the first part, or his heirs, executoi'S, or administrators, shall well and truly pay or cause to be paid to the said party of the second part, or his heirs, executors, administrators, or assigc.s, the aforesaid sum of money, with such interest thereon, at the time and in the manner specified in the above-mentioned note (or bond), according to the true intent and meaning thereof, then in that case these presents and every thing herein expressed shall be absolutely null and void. In witness whereof. The said parties of the first part hereunto set their hand and seal the day and year first above written. (^Signature of mortgagor.) (^Seal.) (^Signature ofvnfe of mortgagor.') (^Seal.) Signed, sealed, and delivered in presence of State op ") [-SS. COTJNTT. ) I, in and for the said county, in the State aforesaid, do hereby certify that (name of mortgagor), personally known to me as the same person whose name is subscribed to the foregoing mortgage, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of wife), wife of the said (name of mortgagor), having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of said instrument of writing having been by me made known and fully explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, acknowledged that she had freely and voluntarily exe- 334 THE PROPERTY RIGHTS OF cuted the same, and relinquished her dower to the. lands and tenements herein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.D. 188 (^Signature.') (_Seal.) (52.) MORTGAGE WITH POWER OF SALE, TO SECURE A BOND, WITHOUT RELEASE OF DOWER. This indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and! occupation of mortgagor) , party of the first part, and (name, residence, and occupation of ■mortgagee'), party of the second part : Whereas, thesaid (name of mortgagor) is justly indebted to the said party of the second part, in the sum of lawful money of the United States, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, condi- tioned for the payment of the said first-mentioned sum of (here state the amount due on the bond, and the time and terms of payment), as by the said bond or obligation, and the condition thereof, reference being thereunto' had, may more fully appear. Now THIS INDENTURE WITNESSETH, That the Said party of the first' part, for the better securing the payment of the said sum of money men- tioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in con- sideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns, for ever, all (here describe the premises, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, pos- session, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, beilefit, and behoof for ever. Provided always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or adminis- trators, shall well and truly pay unto the said party of the second part, or A CITIZEN OF TBE UNITED STATES. 335 Ms executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these' presents, and the estate hereby granted, shall cease, determine, and be void. And the said (name of mortgagor), for himself, and his heirs, executors, and adminis- trators, does covenant and agree to pay imto the said party of the second part, or his executors, administrators, or assigns, the said sum of money and interest as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mention«d, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, or assigns, to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit' and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction. And out of the money arising from such sale, to retain the principal and interest ■which shall then be due on the said bond or obUgation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be) unto the said (name of mortgagor), party of the first part, or his heirs, executors, admin- istrators, or assigns, which sale so to be madeshall for ever be a perpetual bar, both in law and equity, against the said party of the first part, and his heirs and assigns, and all other persons claiming or to claim the prem- ises, or any part thereof, by, from, or under him or them, or any of them. In witness whereof, The parties to these presents have hereunto' interchangeably set their hands and seals, the day and year first above' written. (Signature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.) Sealed and delivered in the presence of State of ) >- S3. County of ) On the day of in the year one thousand eight, hundred and before me personally came (names of both parties), who are known to me ' to be the individuals described in, and who exe- cuted, the foregoing instrument, and acknowledged that they executed the same. (Signature^) (53.) MORTGAGE TO SECURE A DEBT, WITH POWER OF SALE. SHORT FORM. This indenture. Made the day of in the year one thousand eight hundred and between (name, residence, and occu- 336 THE PROPERTY RIGHTS OF patioh of mortgagor), party of the first part, and (name, residence, and occupation of mortgagee) , party of the second part, witn^sseth, that the said party of the first part, in consideration of the sum of (the amount of the debt) to him duly paid before the delivery hereof, has bargained and sold, and by these presents does grant and convey, to the said party of the second part, and his heirs and assigns, for ever, all (here describe the premises, as directed in Form 19), 'with the appurtenances, and all the estate, right, title, and interest of the said party of the first part therein. This grant is intended as a security for the payment of (here describe the debt), which payments, if duly made, will render this conveyance void. And if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, or his executors, administrators, or assigns, are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due, with the costs and expenses allowed by law. In witnkss whereof. The said party of the first part has hereunto set his hand and seal, the day and year first above written. (Signature.) (Seal.") Sealed and delivered in the presence of State of ) y S8. County of ) On the day of in the year one thousand eight hundred and before me personally came (name of mortgagor), who is known to me to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same, as his free act and deed. (Signature.') (54.) MORTGAGE TO SECURE A DEBT. FULLER FORM, WITH POWER OF SALE. This indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of mortgagor), party of the first part, and (name, residence, and occupation of the mortgagee) , party of the second part : Whereas, The said party of the i&rst is justly indebted to the said party of the second part in (here describe the amount and terms of the debt, or note, or bond). Now THIS INDENTURE WITNESSETH, That the Said party of the first part, for the better securing the debt (or note, or JoncZ)-above described, according to the true intent and meaning thereof, and also for and in con- sideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these pres- ents, the receipt whereof is hereby acknowledged, has granted, bargained, A CITIZEN OF THE UNITED ^ATES. 337 sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, and con- firm, unto the said party of the second part, and to his heirs and assigns, for ever, all (here describe the premises, as directed in Form 19). Together -with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and •profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the same, and every pai-t and parcel thereof with the appurtenances: To have and to hold the abova granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof for ever. Provided always, And these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or adminis- trators, shall well and truly pay to the said party of the second part, or his heirs, executors, administrators, or assigns, the above-described debt {or note, or bond), according to the terms and tenor thereof, then this deed (and also said debt, or note, or bond) shall be wholly discharged and void; and otherwise shall remain in full force and effect. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singu- lar the premises hereby granted, or intended so to be, and to sell and dis- pose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigri^, therein, at public auction, according to the act in such case made and provided. And as the attorney of the said party of, the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and suiBcient deed or deeds of conveyance in the law for the same, in fee-simple^ and out of the money arising from such sale to retain the principal and interest which shall then be due on the said debt ( or note, or bond), together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be), unto the said party of .the first part, or his heirs, executors, administrators, or assigns; which sale, so to be made, shall for ever be a perpetual bar, both in law and equity, against the said party of the first part, or his heirs and assigns, and all other persons claiming or to claim the premises or any part thereof, by, from, or under him, them, or either of them. In witness whereof, The parties to these presents have hereunto set their hands and seals, the day and year first above written. (Signature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.) Sealed and delivered in the presence of 22 338 T^E PROPERTY RIGHTS OF State of [■ss. County of On the day of in the year one thousand eight hundred and before me personally came (names of both parties), ■who are known, to me to be the individuals described in, and who exe- cuted, the foregoing instrument, and acknowledged that they executed the same. (^Signature.') (55.) DEED-POLL OF MORTGAGE, WITH POWER TO SELL AND INSURANCE CLAUSE, AND RELEASE OF DOWER AND HOMESTEAD. Know all men by these presents, That I (name, residence, and occupation of mortgagor) , in consideration of to me paid by {name, residence, and occupation of mortgagee), the receipt ■whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said (name of mortgagee) all that lot or parcel of land, with all the buildings thereon standing, situated in the town (or city) of county of State of and bounded and described as follows; that is to say (here describe the premises, as directed in Form 19). To HAVE AND TO HOLD the aforc-grantcd premises, ■with the privileges, easements, and appurtenances thereto belonging, to the said grantee, and to his heirs and assigns, to their use for ever. And L the said grantor, for myself and my heirs, executors, and admin- istrators, ao covenant -with the said grantee, and his heirs and assigns, that I am lawfully seised in fee of the afore-granted premises ; that they are free from all incumbrances (if any incumbrance exists, say ' ' except as fol- lows," and describe the incumbrance); that I have good right to sell and con- vey the same to the said grantee, and his heirs and assigns as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantee, and his heirs and assigns, for ever, against the lawful claims of all persons. Provided, nevertheless. That if the said grantor, or his heirs, exec- utors, or administrators, shall pay unto the said grantee, or his executors, administrators, or assigns, the sum of dollars ys-j) in days (or months) from the day of the date hereof, ■with interest on said sum at the rate of per centum per annum, payable (semi-annually), and until such payment keep the buildings standing on the land aforesaid insured against fire, in a sum not less than dol- lars, for the benefit of said mortgagee, and payable to him in case of loss, at some insurance office approved by said mortgagee; or, in any default thereof, shall on demand pay tq said mortgagee all such sums of money as the said mortgagee shall reasonably pay for such insurance, with inter- est, and also pay all taxes levied or assessed \ipon the said premises, then this deed, as also (a certain bond or) a certain promissory note, bearing even date with these presents, signed by the said mortgagor, whereby for A CITIZEN OF THE UNITED STATES. 339 « value received he promises to pay the said mortgagee or his order the said sum and interest, at the time aforesaid, shall hoth be absolutely void to all intents and purposes. But if default shall be made in the payment of the money above-men- tioned, or the interest that may grow due thereop, or of any part thereof, then it shall be lawful for tlie said grantee, or his executors, administra- tors, or assigns, to sell and dispose of all and singular the premises hereby granted or intended to be granted, and all benefit and equity of redemption of the said (name of the mortgagor), the grantor, his heirs, executors, administrators, or assigns therein, at public auctfon ; such sale to be on or near the premises hereby granted; first giving notice of the time and place of sale, by pubUshing the same once each week, in three successive weeks, in (name of the newspaper'), a newspaper printed in the county of aforesaid; and in his or their own names, or as the attorney of the said (name of mortgagor), the grantor, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the pur- chaser or purchasers thereof, a good and sufficient deed or deeds of con- veyance for the same in fee-simple; and out of the money arising from such sale, to retain the said sum of dollars, or the part thereof remaining unpaid, and also the interest then due on the same, together with the costs and charges of advertising and selling the same premises; rendering the surplus of the purchase-money, if any there be, over and above said sum and interest as aforesaid, together with a true and particu- lar account of said sale and charges, to the said (name of the mortgagor), the grantor, his heirs, executors, administrators, or assigns; which sale, so to be made, shall for ever be a perpetual bar, both in law and equity, against the said (name of the mortgagor) , the grantor, and his heirs and assigns, and all other peisons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. And provided, also. That until some breach of the condition of this deed, the grantee shall have no right to enter and take possession of the premises, and hold the same. In witness whereof, We, the said (nojwe of mortgagor) and (name of his wife) , wife of the said (name of mortgagor) , in token of her release of all right and title of or to both dower and homestead in the granted prem- ises, have hereunto set our hands and seals, this day of in the year of our Lord eighteen hundred and (Signature of mortgagor.) (Seal.'^ (Signature of wife of mortgagor.) (Seal.) Executed and delivered in presence of ss. 18 Then personally appeared the above-named and acknowl- edged the above instrument to be free act and deed. Before me, Justice of the Peace. 340 TEB PROPERTY RKETS OF (56.) MORTGAGE BY INDENTURE, WITH POWER OF SALE AND INTEREST AND INSURANCE CLAUSE, TO SECURE A BOND. This indeHtdre, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the mortgagor) , party of the first part, and (name, residency, and occupation of the mortgagee'), party of the second part: Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of (amount of debt due on the bond) dollars lawful money of the United States, secured to be paid by his cer- tain bond or obligation, bearing even date with these presents, in the penal sum of (amount of penalty/), lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of (amount of debt due on the bond), lawful money as aforesaid, to the said party of the second part, or his ex- ecutors, administrators, or assigns, on the day of which will be in the year one thousand eight hundred and and. interest thereon, to be computed from at and after the rate of per cent per annum, and to be paid (here set forth the time and terms of the payment). Ant> it la THEREBY EXPRESSLT AGREED, That should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of ' days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal' sum of (amount of the debt), with all arrear- age of interest thereon, shall, at the option of thS said party of the second part, or his executors, administrators, or assigns, beeonae and be due and payable immediately thereafter, although the period above limited fof the payment thereof may not then have expired, any thing thereinbefoi'e con- tained to the contrary thereof in any wise notwithstanding: as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now THIS INDENTURE WITNESSETH, That the Said party of the first part, for the better securing the payment of the said sum of money men- tioned in the condition of the said bond or obligation, with interest "thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these pi'esents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns, for ever, all (here describe carefully the land or premises granted, as directed in Form 19). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and A CITIZEN OF THE UNITED STATES. 341 profits thereof; and also all the estate, right, title, interest, property, pos- session, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances. To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his Snd their own proper use, benefit, and behoof for ever. Provided always, And these presents are upon this express condition, that if the said party of the first part, his heirs, executors, or administra- tors, shall well and truly pay unto the said party of the second part, his executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said (name of the mortgagor), for himself and his heirs, executors, and adminis- trators, does covenant and agree to pay unto the said party of the second part, or his executors, administrators, or assigns, the said sum of money and interest as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, exec- utors, administrators, or assigns, therein, at public auction, according to law. And as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and suffi- ■ cient deed or dee'ds of conveyance in the law for the same, in fee-simple, and out of the money arising from such sale to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) , unto the said party of the first part, his heirs, executors,, administrators, or assigns; which sale, so to be made, shall for ever be a perpetual bar, both in law and equity, against the said party of the first pari;, and his heirs and assigns, and all other persons claiming or to claim the premises or any part thereof, by, from, or under him or them, or either of them. And it is expressly agreed by and between the parties to these presents, that the said party of the first part shall and will keep the build- ings erected and to be erected upon the lands above conveyed, insm-ed against loss and damage by fire, by insurers approved by the said party of the second part, and in an amount approved by the said party of the second part, and assign the policy and certificates thereof to the said party of the second part; and in default thereof, it shall be lawful for the said party of tlie second part to efiect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged 342 THE PROPERTY RIGHTS OF premises added to the amount of the said bond or obligation, and secured by these presents, and payable on demand ■with interest at the rate of per cent per annum. In witness whekeof. The parties to these presents have hereunto interchangeably set their hands amd seals, the day and year first above ■written. {Signature of mortgagor.') (^Seal.) {Signature of mortgagee.) {Seal.) Sealed and delivered in the presence of State of County. On the day of in the year one thousand eight hundred and before me personally came ■who are known by me to be the individuals described in, and ■who executed the foregoing instrument, and ackno-wledged that they executed the same as their free act and deed. {Signature.) (57.) MORTGAGE TO EXECUTOES, WITH POWER OF SALE This indentuke. Made the day of in the year one thousand eight hundred and between {name, residence, and occupa- tion of the mortgagor) , party of the first part, and {name and residence of the mortgagee), executor of the last will and testament of {name and resi- dence of the testator), deceased, of the second part; vrhereas, the said party of the first part is justly indebted to the said party of th"e second part in the sum of lawful money of the United States of America, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum {state the terms of the payment ; and if the bond was made to the testator, state that), as by the said bond or obligation and the condition thei'eof, reference being thereunto hadj may more fully appear. Now this indenture -WITNESSETH, That the said party of the first part, for the better securing the payment of the said sum of money men- tioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand "paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, release, convjy, and confirm, unto the said party of the second part, and his successors and assigns , for ever, all {here describe carefully the land or premises granted, as directed in Form 19).* A CITIZEN OF THE UNITED STATES. 348 Together ■with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or ia any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, iiiterest, property, pos- session, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances. To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his successors and assigns, to their only proper use, benefit, and behoof for ever. Provided always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, or his successors or assigns, the said sum of money mentioned in the condition of the said bond or obliga- tion, and the interest thereon, at the time, and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cense, deter- mine, and be null and void. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to pay unto the said party of the second part, his successors or assigns, the said sum of money and interest, as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, his successors and assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administratoi'S, or assigns therein, at public auction, according to law. And as the attorney or attorneys of the said party of the first pai-t, for that purpose by these presents duly authoiized, consti- tuted, and appointed, to make and deliver to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance in the law for the same, in fee-simple, and out of the money arising from such sale to retain the-principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, his heirs, executors, administrators, or assigns; which sale, so to be made, shall for ever be a perpetual bar, both in law and equity, against the said party of the first part, his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. In witness whereof. The parties to these presents have hereimto set their hands and seals, the day and year first above written. (^Signature.') (Seal.} (Signature.) (Seal.) Signed, sealed, and deliveredrin the presence of 344 THE PROPERTY RIGHTS OF State of '■ 88. County; i On the day of in the year one thousand eight hundred and before me personally came who are known by me to be the individuals described in, and who executed the foregoing instrument, and " acknowledged that they executed the same as their free act and deed. (^Signature.') (58.) MORTGAGE OF A LEASE. This indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occu- pation of mortgagor) , party of the first part, and (name, residence, and occupation of mortgagee), party of the second part; Whereas, (name, resi- dence, and occupation of the lessor of the lease to he mortgaged), did, by a certain indenture of lease, bearing date the day of in the year one thousand eight hundred and demise, lease, and to farm let, unto the said party of the first part, and to his executors, administrators, and assigns,. all and singular the premises hereinafter men- tioned and described, together with their appurtenances. To have and to hold the same unto the said party of the first part, and to his executors, administrators, and assigns, for and during and until the full end and term of years, from the day of and fully to be complete and ended, yielding'and paying therefor unto the said (name ■ of the lessor), and to his heirs, executors, administrators, or assigns, the yearly rent or sum of (state the rent, and the times or terms of the payments). And whereas. The said party of the first part is justly indebted to the said party of the second part in the sum of dollars, lawful money of the United States of America, secured to be paid by his certain bond or obligation, bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the pay- ment of the said first-mentioned sum of (liere give the amount of the debt to he paid), as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now THIS INDENTURE WITNESSETH, That the. Said party of the first part, for the better securing the payment of the said sum of money men- tioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in con- sideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these pres- ents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred, and set over, and by these presents does grant, bargain, sell, assign, transfer, and set over, unto the said party of the second part, the estate or premises leased and transferred by said indenture of lease, that is to say (here describe the premises in the same manner in which A CITIZEN OF THE UNITED STATES. 345 they are described in the lease') ; together with all and singular the edifices, ■ buildings, rights, members, privileges, and appurtenances thereunto belong- ing, or in any wise appertaining ; and also all the estate, right, title, inter- est, term of years yet to come and unexpired, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the said demised premises, and every part and parcel thereof, with the appurtenances; and also the said indenture of lease, and every clause, article, and condition therein expressed and contained. To HAVE AND TO HOLD the Said indenture of lease, and other hereby granted premises, unto the said party of the second part, his executors, administrators, and assigns, to his and their only proper use, benefit, and behoof, for and during all the rest, residue, and remainder of the said term of years yet to come and unexpired; subject, nevertheless, to the rents, covenants,- conditions, and provisions in the said indenture of lease pientioned. Provided always, and these presents are upon this express condition, that if the said party of the first part shall well and truly pay unto the said party of the second part the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then and from thenceforth these presents, and the estate hereby granted, shall cease, determine, and be utterly null and void, any thing hereinbefore contained to the contrary in any wise notwithstanding. And the said party of the first part does hereby covenant, grant, promise, and agree to and with the said party of the second part, that he shall well and truly pay unto the said party of the second part the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And that the said premises hereby conveyed now are free and clear of all incumbrances whatsoever, and that the said party of the first part has good right and lawful authority to convey the same in manner and form hereby conveyed. And if default shall be made in the payment of the said sum of money above mentioned, or in the iuri terest wKich shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to sell, transfer, and set over all the rest, residue, and remainder of the said term of years then yet to come, and all other the right, title, and interest of the said party of the first part, of, in, and to the same, at public auction, according to the act in such case made and provided: and as the attorney of the said party of the first part, for that purpose by tjjese presents duly authorized, constituted, and appointed, to make, seal, execute, and deliver to the purchaser or purchasers thereof, a, good and sufficient assignment, transfer, or other conveyance in the law, for the same premises, with the appurtenances; and out of the money, arising from such sale to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be) .unto the said party of the first part, or his assigns; which sale, so to be made, shall be a perpetual bar, both in law and equity, against the said party of the first part, and 346 TBE PROPERTY RIGHTS OF against all j)ersons claiming or to claim the premises, or any part thereof, by, from, or under him or them, or any of them. lu ■witjS'ess whereof, The said party of the first part to these pres- ents has hereunto set his hand and seal, the day and year first above written. (^Signature.") (^SeaW) Signed, sealed, and delivered in the presence of State of County of ■}■ On the day of in the year one thousand. eight himdred and before me personally came who is known to me to be the individual described in, and who executed,, the foregoing instrument, and acknowledged that he executed the same as his free act and deed. (^Signature.) (59.) MORTGAGEE'S DEED, UNDER A POWER OF SALE. This indenture. Made this day of in the year of our Lord one thousand eight hundred and between (name and occupation of the mortgagee) , of the county of and State of party of the fii'st pajt, and (name and occupation of the grantee), of the county of and State of of the second part. WITNESSETH, That whercas (name and occupation of the owner and mort- gagor who gave to the mortgagee the power now exercised), of the county of and State of . did, by a certain deed, dated the day A.D. 18 which deed is recorded in the recorder's office of the county of in the State of on the day of a.d. 18 in book of at page grant, sell, and convey to the said party of the first part all the premises hereinafter described, to secure the payment of a certain debt (or note, or bond) in said deed particularly mentioned, and upon certain terms in said deed particularly declared; and whereas default hath been made in the payment of said debt (note or bond), the said prem- ises were, by said party of the first part, duly advertised for public sale at the door of the court-house iu the countjiof .^ and State of on the day of a.d. 18 in the manner prescribed by said deed, and were, upon the day and year and •at the place last mentioned aforesaid, in pursuance of said notice, sold at public sale, and at said sale the said party of the second part was the highest and best bidder therefor, and bid for the tract first hereinafter named, the sum of dollars. Now, THEUEFOKE, These presents witness, that the said party of the first part, in pursuance of the power and authority in him vested in and by the said "deed, and in consideration of the sum of dollars, A CITIZEN OF THE UNITED STATES. 847 to the said party of the first part paid by the said partj»of the second part, the receipt -whereof is hereby acknowledged, hath released and quit- claimed, and doth hereby convey, remise, release, and quitclaim, to the said party of the second part, his heirs and assigns, for ever, all the right, title, and interest, as well in law as in equity, which the said party of the first part hath acquired by virtue of the deed above mentioned, of, in, and to all that certain tract , piece , or parcel of land, situated in the county of and State of and described as follows, to wit (here describe the premises, as directed in Form 19). ToGETHEK with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversions, remaindejs, rents, issues, and profits thereof; and also all the estate, right, title, interest, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and any and every part thereof, with the appurtenances, which the said party of the first part acquired by virtue of said deed. To HAVE AND TO HOLD the aforcsaid right, title, and interest of the said party of the first part, unto the said party of the second part, his heirs and assigns, for ever, as full and absolutely as the said party of the first part can, by virtue of the power and authority in him by said deed vested, convey the same. In witness WHEREOF, Tte party of the first part hath hereto set his hand and seal, the day and year first above written. • (Signature of seller.') (Seal.') Signed, sealed, and delivered in presence of State of ) [-SS. County. ) On the day of eighteen hundred and sixty- before me of the county of in the State • of appeared who is personally known to me to be the real person whose name is subscribed to the foregoing instrjiment of writing, as having executed the same, and then acknowledged the execu- tion thereof as his free act and deed, for the uses and purposes herein mentioned. (Signature.) (60.) ASSIGNMENT OF MORTGAGE. SHORT FORM. Kjsow all men by these presents. That I (name, residence, and occupation of the assignor), the mortgagee named in a certain mortgage deed, given by (name, residence, and occuj>ation of the mortgagor), to said (name of assignor), to secure the payment of dollars y^, dated the day of in the year of our Lord eighteen hundred and recorded in the registry of deeds for the county of lib. fol. in consideration of the sum of dollars ^-^ to me paid by (name, residence, and occupation of 348 THE PROPERTY RIGHTS OF buyer and assignee)' the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer, set over, and convey unto said (name of assignee) , and his heirs and assigns, said mortgage deed, the real estate thereby conveyed, and the promissory note, debt, and claim thereby secured, and the cove- nants therein contained. To HAVE AND TO HOLD the Same to him the said (name of assignee), and his heirs and assigns, to his and their use and behoof, for ever; sub- ject, nevertheless, to the conditions herein contained, and to redemption according to law. In witness whekeof, I, the said have hereunto set my hand and seal, this day of in the year of our Lord eighteen hundred and • (Signature.) (Seal.) Executed and delivered in presence of ss. A»D. 18 Then personally appeared the above-named and acknowl- edged the above instrument to be his free act and deed. Before me, (Signature.) (61.) assignSient of mortgagk, with power of attorney. Know all men by these presents. That I, (name, residence, and occupation of assignor), party of the first part, in consideration of the sum of lawful money of the United States, to me in hand paid by (name, residence, and occupation of assignee), of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over, unto the said party of the second part, his executors, adminis- trators, and assigns, a certain indenture of iriBrtgage, bearing date the day of one thousand eight hundred and sixty- made by (here state the name of the mortgagor, and briefly describe the mortgage deed, and state the volume and page where it is registered), to which reference may be made, together with all the right, title, interest, and estate of said party of the first part, in and to the premises described and conveyed in and by said indenture of mortgage. Together with the bond (or note) therein described, and the money due and to grow due thereon, with the interest accruing or accrued, to have and to hold the same, unto the said party of the second part, his executors, administrators, and assigns, for his and their use, subject only to the proviso in the sa,id indenture of mortgage mentioned: and I do hereby make, constitute, and appoint the said party of the second part, my true and lawful attorney, irrevocably in my name or otherwise, but at his own proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest; and in case of payment, to discharge the same as fully as I might or could do if these presents were not made. * A CITIZEN OF THE UNITED STATES. 349 In witness whereof, I have hereunto set my hand and sealj the day of one thousand eight hundred and sixty- (Signature.) {SeaL) Signed, sealed, and delivered in the presence of J' State of County. On this day of eighteen hundred and sixty- personally appeared hufore me known to me to be the person who signed and sealed the foregoing assignment of mortgage, and acknowl- edged the execution of the same for the uses and purposes therein set forth. Given under my hand and seal, at in said county aforesaid. (^Signature ) (SeaJ.) (62.) ASSIGNMENT OF MOEtGAGE BY A COEPORATION. Know all men bt these presents, That the (legal name of (he corporation assigning), existing as a corporate body, in and under the laws of the State of of the first part, for and in consideration of the sum of lawful money of the United States, to the said corpora- tion paid by (name, residence, and occupation of assignee) , of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over, unto the. said party of the second part, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by (here state the name of the mortgagor, and briefly describe the mortgage deed), the same being duly registered in the office of the fegistef of deeds for the county of and" State of to which said indenture of mortgage reference may be had. s Together with the bond or obligation therein described, and the moneys due, and to grow due thereon, with the interest: to have and to hold the same unto the said party of the second part, his heirs and assigns, for his and their own use, subject only to the proviso in the said indenture of mortgage mentioned. And the said parties of the first part do hereby make, constitute, and appoint the said party of the second part their true and lawful attorney, irrevocable, in the name of the said parties of the first part, or otherwise, but at the proper costs and charges of the said party of the second part, to have, use, and take all lawful ways and means for the recovery of the said money and interest, and in case of payment to discharge the same as fully as the said parties of the first part might or could do if these presents were not made. 350 TEE PROPERTY RIGHTS OF In witness whereof, The. said parties of the first part have caused their common seal to be affixed to these presents, and the same to be signed by their attorney and president (or other officer), the day of in the year one thousand eight hundred and (^Signature.) (Seat of the corporation.') Signed, sealed, and delivered in presence of State of ) [■ ss. County. ) On the day of in the year one thousand eight hundred and before me calne with whom I am personally acquainted, and known to me to be the attorney and of the within-named corporation, who, being by me duly examined, says, that the seal which is affixed to the within assignment is the corporate seal of the said corporation, and was so affixed by their authority, and acknowl- edged that he executed the same as their act and deed. (^Signature.') / (63.) DISCHARGE OF MORTGAGE. SHORT FORM. The debt secured by the mortgage, dated and recorded with deeds, lib. fol. has been paid to me by (riame of mortgagor), and in consideration thereof I do discharge the mort- gage and release the mortgaged premises to said (name of mortgagor) and his heirs. Witness my hand and seal a.d. 18 (Signature.) (Seal.) Executed and delivered in presence of ss. A.B. 186 Then said acknowledged the foregoing instrument to be free act and deed. Before me, (Signature.) (64) RELEASE AND QUITCLAIM OF MORTGAGE, AS USED IN THE WESTERN STATES. Know all men by these presents, That I (name of mortgagee), of the county of and State of for and in consideration of one dollar, to me in hand paid, and for other good and valuable con- siderations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto (name of assignee or releasee), of the county of and State of all the right, title, interest, claim, or demand whatsoever I may have acquired in, A CITIZEN OF THE UNITED STATES. 351 through, or by a certain indenture or mortgage deed, bearing date the • day of A.D. 186 and recorded in the recorder's office of county in book of page to the premises therein described, and which said deed was made to secure a certain promissory note (or bond') bearing even date with said deed, for the sum of dollars and cents. Witness my hand and seal, this day of A.D. 186 (Signature.') (Seal.) .}■ State op [es. County. I, in and for said county in the State aforesaid, do hereby certify that who is personally known to me as the same person whose name is subscribed to the foregoing deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of a.d. 186 (Signature.) (Seal.) (65.) DISCHAEGE OF MOKTGAGE, AS USED m THE MIDDLE STATES. State of ) ^ss. CODNTT OF ) I (name, residence, and occupation of mortgagee), do hereby certify that a certain indenture (or deed) of mortgage, bearing date the day of one thousand eight hundred and * made and executed by (here state the name of the mortgagor, and describe the deed briefly)^ and' recorded in the office of • county of in lib. of mortgages, page on the day of in the year one thousand eight hundred and o'clock, in the is paid. And I do hereby consent that the same be discharged of record. Dated the day of 18 (Signature.) (Seal). In presence of ■ State of ') County of ) On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same as his free act and deed. (Signature.) 352 THE PROPERTY RIGHTS OF (06.) • biSCHAEGE AND SATISFACTION OF MORTGAGE BY A CORPORATION. We (the legal name of the corporation), a corporate bddy existing -within and under the laws of the State of Do HEREBY CERTIFY, That a certain mortgage, bearing date the day of in the year one thousand eight hundred and made and executed by (here state the name of the mortgagor, and describe the mortgage briefly), and recorded in the office of the register in and for the county of in lib. of mort- gages, page on the day of is paid. In witness whereof. The said corporation has caused its corporate Beal to be liereunto affixed, this day of in the year one thousand eight hundred and {Signature of attorney.') {Seal 'of corporation.) Witnessed by State oe [-SS. County of Qn the day of in the year one thousand eight hundred and before me personally came to me known, who, being by me duly sworn, did depose and say, that he resided in the city {or town) of that he is the attorney and president {or other officer) of the said corporation; that he knew the corporate seal of the said corporation, and that the- seal affixed to the foregoing instrument was such corporate seal; tliat it was affixed by him by order of the said corporation, and that he signed his name thereto by the like order. {Signature.) (67.) RELEASE OF A PART OF THE MORTGAGED PREMISES. This indenture, Made the day of in the year of our Lord one thousand eight hundred and ' between {name, residence, and occupation of the mortgagee and releasor), party of the first part, and {name, residence, and occupation of the mortgagor to whom the release is given) , party of the second part : Whereas, The said party of the second part, by indenture of mort- gage, bearing date the day of one thousand eight hundred and for the considei-ation therein mentioned, and to secure the payment of the money therein specified, did convey certain lands and tenements, of which the lands hereinafter described are part, unto the said party of the first part, And whereas. The said party of the first part, at the request of the said party of the second part, has agreed to give up and surrender the lands hereinafter described unto the said party of the second part, and to A CITIZEN OF THE UNITED STATES. 353 i hold and retain the residue of the mortgaged lands as security for the money remaining due on the said mortgage : Now this indenture witness- eth, that the said party of the first part, in pursuance of the said agree- ment, and in consideration of to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, released, quitclaimed, and set over, and by these presents does grant, release, quitclaim, and set over, unto the said party of the second part, all that part of the said mortgaged land {here describe carefully and accurately all that part of the mortgaged land which it is intended to release, distinguishing it from that which is retained^. Together with the hereditaments and appurtenances thereto belong- ing, and all the right, title, and interest of the said party of the first part, of, in, and to the same, to the intent that the lands hereby conveyed may be discharged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as heretofore. To have and to hold the lands and premises hereby released and conveyed to the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof, for ever, free, clear, and discharged of and from all lien and claim under and by virtue of the indenture of mortgage aforesaid. In witness whekeop. The said party of the first part has hereunto set his hand and seal, on the day of in the year (Signature.') (Seal.) Executed and delivered in presence of State of - ^ ^ss. County of ) On the day of in the year one thousand eight hundred and before me personally came who is" known to me to be the individual described in, and who executed, the fore- going instrument, and acknowledged that he executed the same as his free act and deed. (Signature.") (68.) DEED EXTENDING A MOETGAGK This indenture. Made this day of a.d. 18 by and between (name, residence, and oocupation of the mortgagee), the owner and holder of a certain promissory note (or bdnd) for the principal sum of dollars, given by (name of mortgagor), and secured by a mortgage of certain real estate in in the county of and State of dated day a.d. 18 and recorded in registry of deeds, for the county of lib. fol. party of the first part, and the said (name of mortgagor) , party of the second part, 23 854 THE PROPERTY RIGHTS OF "WITNESSETH, That the said parties, for themselves and their repre- sentatives, hereby mutually agree that the time for the payment of the principal of said note and mortgage debt shall be and the same is hereby extended for the term of years from the day of A.D. 18 and that the same is to bear interest from said date, at the rate of per cent per annum, payable on the day of and the day of in every year, until said principal sum shall be fully paid. And the said party of the second part hereby covenants and agrees that he -will not require the holders of said note and mortgage to receive payment of said mortgage debt during said extended term; that he ■will punctually pay the interest now due, and to grow due thereon, at the times and at the rate aforesaid ; that he will keep the mortgaged premises in good repair, and insured against fire, and the taxes thereon duly paid, according to the provisions of said mortgage, and that at the expiration of said extended term he wiU pay the said mortgage debt, with all interest then due thereon. It is expressly understdod and agreed that nothing herein contained shall be construed to impair the security of said party of the first part, or his executors, administrators, or assigns, under said mortgage, or to afEect or impair the lien on the real estate therein described, which he has by virtue of said mortgage, nor affect or impair any rights or powers which he may have und^r the said note and mortgage, for the recovery of the mortgage debt, with interest, in case of non-fulfilment of this agree- ment, or of any of the provisions hereof, by said party of the second part. In witness whereof, The said parties have hereunto set their hands and seals, the day and year first above written. (^Signature of mortgagee.) (^Seal.) (^Signature of mortgagor.') (^Seal.) Signed, sealed, and delivereid in presence of Commonwealth (or State) op ss. 18 Per- sonally appeared the above-named. and acknowledged the above instrument to be his (or their) free act and deed. Before me, (Signature.) A CITIZEN OF THE UNITED STATES. 355 CHAPTER VI. PUECHASB AND SALE OF GOODS AND CHATTELS. SECTION I. WHAT CONSTITUTES A SALE. It is important to distingnisli carefully between a sale and an agreement for a future sale. This distinction is sometimes over- looked ; and hence the phrase " an executory contract of sale," that is, a contract of sale which is to be executed hereafter, has come into use ; but it is not quite accurate to speak of this as if it were a sale. Every actual sale is an executed contract, although pay- ment or delivery may remain to be made. There may be an executory contract for a sale, or a bargain that a future sale shall be made; but such a bargain is not a present sale, nor does it confer upon either party the rights or the obligations which grow out of the contract of sale. A sale of goods is the exchange thereof for money. More pre- cisely, it is the transfer of the property in goods from a seller to a buyer, for a price paid, or to be paid, in money. It differs from an exchange, in law ; for that is the transfer of chattels for other chat- tels ; while a sale is the transfer of chattels for money, which is the representative of all value. Here we must pause to speak of the legal meaning of the word " property." It is seldom or never used in the law, as it is in com- mon conversation, to mean the things themselves which are bought, or sold, or owned. Because in law it means the ownership of the things, and not the things themselves. If a bargain transfers the property in (wMch means the own- ership of) the thing to another person for a price, it is a sale ; and if it does not transfer the property, it is not a sale ; and, on the other hand, if it be not a sale, it does not transfer the property. As soon as a thing is sold, the buyer owns it, wherever it may be. And to constitute a sale at common law, all that is necessary is the agreement of the buyer and the seller that the property in (or own- ership of) the subject-matter shall then pass from the seller to the buyer for a fixed price. 356 THE PROPERTY RIGHTS OF The sale is made wlien the agreement is made. The completion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By the mutual assent of the parties to the terms of the sale, the buyer acquires at once the property and all the rights and liabilities of property ; so that, in case of any loss or depreciation of the articles purchased, the buyer will be the loser ; and he will be the gainer by any increase in their value. It is, however, a presumption of the law, that the sale is to be immediately followed by payment and delivery, unless otherwise agreed upon by the parties. If, therefore, nothing • appears but a proposal and an acceptance, and the vendee departs without paying or tendering the price, the vendor may elect to consider it no sale, and may, therefore, if the buyer comes at a later period and offers the price and demands the goods, refuse to let him have them. But a credit may be agreed on expressly, and the seller will be bound by it ; and so he will be if the credit is inferred or implied from usage or from the circumstances of the case. And if there be a delivery and acceptance" of the goods, or a receipt by the seller, of earnest, or of part payment, the legal inference is that both pnrties agree to hold themselves mutually bound by the bar- gain. Then the buyer has either the credit agreed upon, or such credit as from custom or the nature or civcumstaHces of the case is reasonable. But neither delivery nor earnest nor part payment is essential to the completion of a contract of sale. They only pi-e- vent the seller from rescinding the contract of sale without the consent of the purchaser. Their effect upon sales under the pro- visions of the Statute of Frauds will be considered in the chapter on that subject. 1^0 one can be made to hay of another without his own assent. Thus, if A sends an order to B for goods, and C sends the goods, he cannot sue for the piice if A repudiates the sale, although C had bought B's business. The seller (if no delivery with credit for the price is agreed on) has a right to retain possession of the property sold until the price is paid. This right is called a lien, which means the right of retaining possession of property until some charge upon it, or some claim on account of it, is satisfied. It rests, therefore, on possession. Hence the seller (and every other person who has a lien) loses it by voluntarily parting with the possession or by a delivery of the goods. And it is a delivery for this purpose if he delivers a part, without any purpose of severing that part from the remainder; or if he make a symbolical delivery which vests this right and power of possession in the buyer, as by the delivery of the key of a ware- house in which they are locked up. A CITIZEN OF THE UNITED STATES. 857 If the seller delivers the goods to the buyer, as he thereby loses his lien, he cannot afterwards, by virtue of this lien, retake the goods and hold them. But if the delivery was made with an express agreement that non-payment of the price should revest the property in the seller, this agreement may be valid, and the seller can reclaim the goods from the buyer if the price be not paid. If the buyer neglect or refuse to take the goods and pay the price within a reasonable time, the seller may resell them on notice to the buyer, and look to him for the deficiency by way of damages for the breach of the contract. The seller, in making such resale, acts as agent or trustee for the buyer ; and his proceedings will be regulated and governed by the rules usually applicable to persons acting in those capacities ; and the principal one of these is, that he' will be held to due care and diligence, and to perfect good faith. Certain consequences flow from the rules and principles al- ready stated, which should be noticed. Thus, if the party to whom the offer of sale is made accepts the offer, but still refuses or neglects to pay the price, and there are no circumstances indi- cating a credit, or otherwise justifying the refusal or neglect, the seller may, as we have said, disregard the accej^tance of his offer, and consider the contract as never made, or as rescinded. It would, however, be proper and prudent on the part of the seller expressly to demand payment of the price before he treated the sale as null ; and a refusal or neglect would then give him at once a right to hold and treat the goods as his own. So, too, if the seller unreasonably neglected to deliver the goods sold, and especially if he refused to deliver them, the buyer thereby acquires the right to consider that no sale was made, or that it has been avoided (or annulled). But neither party is bound to exercise the right thus acquired by the refusal or neglect of the other, which is a right to rescind or annul the sale, but may consider the sale as complete; and the seller may sue the buyer for non-payment, or' the buyer may sue the seller for non-delivery. If the seller has merely the right of possession, as if he had hired the goods ; or if he has the possession only, as if he had stolen them, or found them, he cannot sell them and give good title to the buyer against the owner; and the owner may therefore recover them even from an honest purchaser who was wholly ignorant of the defect in the title of him from whom he bought them. This follows from the rule above stated, that only he who has in himself a right of property can sell a chattel, because the sale must trans- fer the right of property from the seller to the buyer. The only exception to the above rule is where money, or negotiable paper transferable by delivery (which is considered as money), is sold or 358 TBE PROPERTY RIGHTS OF paid away. In either case, he who takes it in good faith, and for vahie, from a thief or finder, holds it by good title. If the owner once sold the thing, although he was deceived and induced to part with his property through fraud, he cannot reclaim it from one who in good faith buys it from the fraudulent party who purchased it from the owner. If any thing remains to he done by the seller, to or in relation to the goods sold, for their ascertainment, identification, or comple- tion, the property in the goods does not pass until that thing is done ; and until then there is no completed sale. Therefore, if there be a bargain for the sale of specific goods, but there remains some- thing material which the seller is to do to them, and they are casually burnt or stolen, the loss is the seller's, because the property (or ownership) had not yet passed to the buyer. So, if the goods are a part of a large quantity, they remain the seller's until selected and separated ; and even after that, until recognized and accepted by the buyer, unless it is plain from words or circumstances that the selection and separation by the buyer are intended to be conclusive upon both parties. K repairing or measuring or counting must be done by the seller, before the goods are fitted for delivery or the price can be determined or their quantity ascertained, they remain, until this be done, the seller's. And where part is measured and delivered, this part passes to the vendee, but the portion not so treated does not. But if the seller delivers them and the buyer accepts them, and any of these acts remain to be done, these acts will not be considered as belonging to the contract of sale, for that will be regarded as com- pleted, and the ownership of the goods will have passed to the buyer; and these acts will be taken only to refer to the adjustment of the final settlement as to the price. Thus a purchaser offers a nursery-man a dollar apiece for two hundred out of a row of two thousand trees, which are all alike, and the offer is accepted. This is no sale, because any two hundred may be delivered, and therefore the property or ownership of any specific two hundred does not pass. But if the purchaser or seller had said, the first two hundred in the row, or the last, or every third tree, or otherwise indicated the specific trees, there would have been a sale, and by the sale those specific trees would have become at once the trees of the buyer. The Seller would dig up and deliver them as the buyer's trees, and if they were burned up by accident an hour after the sale, and before digging, the buyer would lose the trees. If not specified, however, even if they were paid for, they remain the property of the nursery-man, because, instead of an actual sale, there is only a bargain that he will select two hundred from the lot, and A CITIZEN OF THE UNITED STATES. 359 take up and deliver them. And if they are destroyed before delivery, this is the loss of the nursery-man. Moreover, it is to be noticed that a contract for a future sale, to take place either at a future point of time, or when a certain event happens, does not, when that time arrives, or on the happening of the event, become of itself a sale, transferring the property. The party to whom the sale was to be made does not then acquire the property, and cannot, by tendering the price, acquire a right to possession ; but he may tender the price, or whatever else would be the fulfilment of his obligation, and demand the goods, and then sue the owner for his breach of contract if he will not deliver the goods. But the property (or legal title) in the goods remains in the original owner. For the same reason that the property in the goods must pass by a sale, there can be no actual sale of any chattel or goods which have no existence at the time. It may, as we have seen, be a good contract for a future sale, but it is not a present sale. Thus, in con- tracts for the sale of articles yet to "be manufactured, the subject of the contract not being in existence when the parties enter into their engagement, no proi^erty passes until the chattel is in a finished state, and has been specifically appropriated to the person giving the order, and approved and accepted by him. As there can be no sale unless of a specific thing, so there is no sale but for a price which is certain, or which is capable of being made certain by a distinct reference to a certain standard. SECTION II. DELIVERY AND ITS INCIDENTS. When a sale is effected, the buyer has an immediate right to the possession of the goods, as soon as he pays or tenders the price ; or at Once, without payment, if the sale be on credit. And the seller is bound to deliver the goods. What is a sufficient delivery is sometimes a question of diffi- culty. In general, it is sufficient if the goods are placed in the buyer's hands or his actual possession, or if that is done which is the equivalent of this transfer of possession. Some modes and instances of delivery we have already seen. We add, that if the goods are landed on a wharf alongside of the ship which brings them, with notice to the buyer, or knowledge on his part, this may be a suffi- cient delivery, if usage, or the obvious nature of the case, make it equivalent to actually giving possession. And usage is of the utmost importance in determining questions of this kind. 360 THE PROPERTY RIGHTS OF In general, the rule may be said to be, that that is a siifficieiit delivery whicli puts the goods within the actual reach or power of the buyer, with immediate notice to him, so that there is nothing to prevent him from taking actual possession. When, from the nature or situation of the goods, an actual delivery is difficult or impossible, as in case of a quantity of timber floating in a boom, slight acts, as touching the timber, or even going near it and pointing it out, are sufficient to constitute a delivery, if they sufficiently indicate the transfer of possession. So if the prop- erty which is the subject of the sale is at sea, the indorsement and delivery of the bill of lading, or other instrument of title, is suf- ficient to constitute a delivery ; and by such indorsement and de- livery of the bill of lading the property in the goods irnmediately vests in the buyer ; and he can transfer this to one who buys of him, by his own indorsement and delivery of the bill of lading. Where goods at sea are sold, the seller should send or deliver the bill of lading to the buyer within a reasonable time, that he may have the means of offiiring the goods in the market. And it has been held that a refusal of the bill of lading authorized the buyer to rescind the sale. ( XTntil delivery, the seller is bound to keep the goods with or- dinary care, and is liable for any loss or injury arising from the want of such care or of good faith. But if he exercises ordinary care and diligence in keeping the commodity, he is not liable for any loss or depreciation of it, unless this aiises from some defect which he has warranted not to exist. Thus, in a case in New York, A sold to B a certain quantity of beef, B paying the purchase- money in full ; and it was agreed between them that the beef should remain in the custody of A until it should be sent to another place. Some time after, B received a part, which proved to be bed, and the whole was found, on inspection, to be unmerchantable. The court held that, as the beef was good at the time of its sale, the vendee (or buyer) must bear the loss of its subsequent deterioration. If the buyer lives at a distance from the seller, the seller must send the goods in the manner indicated by the buyer. If no direc- tions are given, he must send them in such a way as usage, or, in the absence of usage, as reasonable care would require. And generally all customary and proper precautions should be taken to prevent loss or injury in the transit. If these are taken, the goods are sent at the risk of the buyer, and the seller is not responsible for any loss. But he is responsible for any loss or injury happening through the want of such care or precaution. And if he sends them by his own servant, or carries them himself,. they are in his custody, and, gener- ally, at his risk, until delivery. But if the buyer distinctly indicates A CITIZEN OF THE UNITED STATES. 361 the way or means by which he wishes that the goods should be sent to him, as by such a carrier, or such a line, if the seller com- plies with his directions, and exercises ordinary care over the goods until they jgre delivered to the person or line so pointed out, his responsibility ends with this delivery, in the same manner as it would if he delivered the goods into the hands of the owner. This question of delivery has a very great importance in an- other point of view ; and that is, as it bears upon the honesty, and therefore the validity, of the transaction. As the owner of goods ought to have them in his possession, and as a transfer of posses- sion usually does, and always should, accompany a sale, the want of this transfer is an indication, more or less strong, that the sale is not a real one,-but a mere cover. The prevailing rule may be stated thus : Delivery is not essential to a sale at common law ; but if there is no delivery, and a third party, without knowledge of the previous sale, purchases the same thing from the seller, he gains an equally valid title with the first buyer; and if he completes this title by acquiring possession of the thing before the other, he can hold it against the other. So, also, unless delivery or possession accom- pany the transfer of the right of property, the things sold are sub- ject to attachment by the creditors of the seller. And if the sale be completed, and nevertheless no change of possession takes place, and there is no certain and adequate cause or justification of the want or delay of this change of possession, the transaction will be regarded as fi-audulent and void in favor of a third party, who, either by purchase or by attachment, acquires the property in good faith, find without a knowledge of the former sale. This fact, that the thing sold remained in the possession of the seller, might be explained, and if shown to be perfectly consistent with honesty, and to have occuiTed for good reasons, and especially if the delay in taking pos- session was brief, the title of the first buyer would be respected. If goods are sold in a shop or store, separated, and weighed or numbered if that be necessary, and put into a parcel, or other- wise made ready for delivery to the buyer, in his presence, and he request the seller to keep the goods for a time for him, this is so far a delivery as to vest the property in the goods in the buyer, and the seller becomes the bailee of the buyer. And if the goods are lost while thus in the keeping of the seller, without his fault, it is the logs of the buyer. (In law the word bail means " to deliver." Thus a "bailor" is one who delivers a thing to another; the "bailee" is the party to whom it is delivered; and " bailment " is the delivery. The " bail " of a party who is arrested, is he or they to whom the arrested person is delivered or given up, on their agreement that he shall be forthcoming when required by law.) 362 THE PROPERTY RIGHTS OF In a contract of sale there is sometimes a clause providing that a mistake in description or a deficiency in quality or quantity, shall not avoid the sale, but only give the buyer a right to deduc- tion or compensation. But if the mistake or defect be great and substantial, and affects materially the availability of the thing for the purpose for which it was bought, the sale is nevertheless void, for the thing sold is not that which was to have been sold. If the buyer knowingly receives goods so deficient or so dif- ferent from what they should have been that he might have refused them, he will be held to have waived the. objection, and to be liable for the whole price, unless he can show a good reason for not returning them, as in the case of materials innocently used before discovery of the defects, or the like. Thus, where a man bought a chandelier warranted sufiicient to light a certain room, and kept it six months, the court did not permit him to return it and refuse payment, although it was not what it had been warranted to be. Soinetimes two or three months, or even less, is held too long a keeping to permit a subsequent return. But though the buyer can- not then return the thing, yet, when the price is demanded, he may set off whatever damages he has sustained by the seller's breach of contract, and the seller can recover only the value to the buyer of the goods sold, even if that be nothing. But a long delay or silence may imply a waiver of even this right on the part of the buyer. One who orders many things at one time, and by one bargain, may, generally, refuse to receive a part without the rest ; but if he accepts any part, he severs that part from the rest, and rebuts (or removes) the presumption that it was an entire contract; the buyer will then be held as having given a separate order for each thing, or part, and as therefore bound to receive such parts as are tendered, unless some distinct reason for refusal attaches to them. If many several things are bought at one auction, but by different bids, and especially if the name of the buyer be marked against each, there is a separate sale to him of each one, and it is inde- pendent of the others ; so that he must take and pay for any one or more, although the others are not what they should be, or cannot be had. If, however, it could be shown by the nature of the case, or by evidence, that the things were so connected that one was bought entirely for the sake of the other, he would not be obliged to take the one unless he could have the other. This rule applies also when the things sold are lots of land. Indeed, the general rule may be stated thus : The question whether it is one contract, so that the buyer shall not be bound to receive any part unless the whole be tendered to him, will be determined by ascertaining from A CITIZEN OF THE UNITED STATES. 863 all the facts and all the evidence whether the parts so belong together that it may reasonably be supposed that none would have been purchased if the whole had not been purchased, or if any part could not have been purchased. The buyer may have, by the terms of the bargain, the right of rescinding the sale and redelivering the goods. For sales are sometimes made upon the agreement that the purchaser may return the goods within a fixed or within a reasonable time. He may have this right without any condition, and then has only to exercise it at his discretion. But he may have the right to return the thing bought only if it turns out to have, or not to haVe, certain qualities; or only upon the happening of a certain event. In such case the burden of proof is on him to show that the circumstances exist which are necessary to give him this right. In either case the property vests in the buyer at once, as in ordinary sales ; but sub- ject to the right of return given him by the agreement. If he does not exercise his right within the agreed time, or within a reason- able time if none be agreed upon, the right is wholly lost, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered. And if during the time the buyer so misuse the property as to materially impair its' value, he cannot tender it back, but is liable for the price. ■ SECTION III. CONTRACTS TOID FOR ILLEGAXITY OR FRAUD. • As the law will not compel or require any one to do that which it forbids him to do, no contract can be enforced at law which is tainted with illegality. It may, however, be necessary to consider whether the contract be entire or separable into parts, and whether it is wholly or partially illegal. If the whole consid- eration, or any part of the consideration, be illegal, the promise founded upon it is void, whether the promise is legal or not. But if the consideration is legal, and the promise is in part legal and in part illegal, it is valid for the legal part, and may be enforced for that pairt. Thus, if a master of a vessel agreed to smuggle goods, and in consideration of his doing so the owner promised to pay him one-fourth of his profits, and also to advance twenty dollars a month to his family during a certain time, the master could enforce no part of this promise, and recover no damages for any breach of it, because the consideration is illegal. But if for one thousand dollars paid, the receiver agreed to sell and deliver a certain quantity of merchandise, and also to assist the buyer in some contemplated 364 THE PitOPERTY RIGHTS OF fraud, he would be bound to sell and deliver the goods, because the consideration was legal, and this part of the promise was legal, but not to assist in the fraud, because this part of the promise is Illegal. I mean to say, that if a whole promise, or any part .of a promise that cannot be severed into substantial and independent parts, is illegal the whole promise is void. But if the consideration is legal, and the promise is legal in part and illegal in part, and that part of the promise which is legal can be severed from that part wliich is illegal and then be a substantial promise having a value of its own, this legal part can be enforced. For further remarks upon this subject, however, I refer to the chapter on Consideration. Fraud vitiates and avoids every contract and every transac- tion. Hence, a wilfully false representation by which a sale is effected ; or a purchase of goods with the design of not paying for them ; or hindering others from bidding at auction by wrongful means ; or selling at auction, and providing buy-bidders, to run the thing up fraudulently; or selling "with all faults," and then purposely concealing and disguising them, as when a man adver- tised a ship for sale at auction " with all faults," but pui'posely put her in a situation where an important fault could not be easily detected ; or any similar act, — will avoid a sale. No title or right passes by such sale to the fraudulent party ; but the innocent party, whether buyer or seller, may waive the fraud, and insist that the fraudulent party shall not take advantage of his own fraud to avoid the sale. A buyer who is imposed upon by a fraud, and therefore has a right to annul the sale, must exercise this right as soon as may be after discovering the fraud. He does not lose the right neces- sarily by every trifling delay, but certainly does by any considerable and unexoused delay. A seller may rescind and annul a sale if he were induced to make it by fraud. But he may waive the right and sue for the price. If, however, the fraudulent buyer gets the goods on a credit, and the seller sues for the price before the credit expires, this suit is a confirmation of the whole sale, including the credit ; or rather it is an entire waiver of his right to annul the sale, and the suit can- not be maintained until the credit has wholly expired. If a party who has been defrauded by any contract brings an action to enforce it, this is a waiver of his right to rescind, and a confirmation of the contract. Or if, with knowledge of the fraud, he offers to perform the contract on conditions which he had no right to exact, this has been held so effectual a waiver of the fraud that he cannot set it up in defence, if sued on the contract. A ChTlZEN OF THE UNITED STAVES. 365 Formerly, an agreement to sell at a fature day goods wMch the promisor had not at the time, and had not contracted to buy, and had no notice or expectation of receiving by consignment, was considered qpen to the objection that it was merely a wager, and therefore void. Bat later eases have admitted it to be a valid contract. SECTION IV. SALES WITH WAKRANTY. A sale may be with warranty; and this may be general, or particular and limited. A general warranty does not extend to defects which are known to the purchaser, or which are open to inspection and observation, unless the purchaser is at the time unable to discover them readily, and relies rather upon the knowl- edge and warranty of the seller. A warranty may also be either express or implied. It is not implied by the law generally merely from a full, or, as it is called, a sound price. The rule of law, ca- veat emptor (let the buyer take care), prevents this. But this rule never applies to cases of fraud. As a general rule, however, mere silence on the part of the seller is not fraud ; but the usage of the trade will be considered, and if that require a declaration of certain defects whenever they exist, the absence of such declaration is a warranty against such defects. Mere declarations of opinion are not a warranty. Thus, in England, an action was brought on a warranty that certain goods were fit for the China market. The plaintiff produced a letter from the defendant, saying that he had goods fit for .the China market, which he oflEfered to sell cheap. But the court held that such a letter was not a warranty, but merely an invitation to trade, it not having any specific reference to the goods actually bought by the plaintiff. If these declarations are intended to deceive, and have that effect, they may avoid the sale for fraud. And affirmations of quan- tity or quality, which are made pending the negotiations for sale, with a view to procure a sale, and have that effect, will be regarded as a waiTanty ; thus, in New York, it was held that a representation made by a vendor, upon a sale of flour in barrels, that it was in quality superfine or extra-superfine, and worth a shilling a barrel more than common, coupled with the assurance to the buyer's agent that he might rely upon such representation, was a warranty of the quality of the flour. So in England, where upon the sale of a horse the vendor said to the vendee, "You may depend tipon it, the horse is perfectly quiet and free from vice ; '■' tliis was held to 366 " TEE PROPERTY RIGHTS OF amount to an express warranty 'that he was quiet and free from vice. Goods sold by sample are warranted by such sale to conform to the sample ; but there is no warranty that the sample is what it appears to be. Thus, in England, there was a sale of five bags of hops, with express warranty tliat the bulk answered the samples by which they were sold. The sale was in January; at that time the samples fairly answered to the commodity sold, and no defect was af that time perceptible to the buyer. In July following, every bag was found to have become unmerchantable and spoiled, by heating, caused probably by the hops having been fraudulently watered by the grower or some other person, before they were purchased by the defendant. The seller knew nothing of this fact at the time of sale, and the samples were as much damped as the rest ; and it was then impossible to detect it. It was held by the court that there was here no implied warranty that the bulk of the com- modity was merchantable at the time of sale, although a mer- chantable price was given. A breach of warranty does not always authorize the buyer to return the article sold, unless there be an agreement to that effect, or fraud ; but only to sue on the warranty, and recover dam- ages on the breach of it. But if one orders a thing for a special purpose known to the seller, he may certainly return it if it be unfit for that purpose, if he does so as soon as he ascertains its un- fitness. The seller of goods actually in his possession as owner, if he sells as owner, is held to warrant his own title by the fact of the sale. But if the property be not in the possession of the vendor, and there be no assertion of ownership by him, no implied warranty of title arises. If a thing is ordered for a special purpose, and is supplied, there is an implied warranty that it is fit for that purpose. In one case, the defendant was a dealer in ropes, and represented himself to be a manufacturer of the article. The buyer, a wine-merchant, applied to him for a crane-rope. The seller's foreman went to the buyer's premises, in order to ascertain the dimensions and kind of rope required. He examined the crane and the old rope, and took the necessary admeasurements, and was told that the new rope was wanted for the purpose of raising pipes of wine out of the cellar,, and letting them down into, the street; when he informed the buyer that a rope must be made on purpose. The seller did not make the rope himself, but sent the order to his manufacturer, who employed a third person to make it. It was held that, as between the parties to the sale, there was an implied warranty thiit the rope was a fit A CITIZEN OF THE UNITED STATES. 367 and proper one for the purpose for which it was ordered. And the seller was held responsible not only for the rope, which broke, but for a pipe of wine which was thereby lost. This principle mnst not be applied to those cases where an ascertained article is purchased, although it be intended by the purchaser for a special purpose. For if the thing itself is specifi- cally selected and purchased, the purchaser takes upon himself the risk of its effecting its purpose. This is illustrated in an English case, thus : " If a man says to another, ' Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he will be liable for the consequences ; but if a man says, ' Sell me that gi'ay horse to ride,' and the other sells it, knowing that the buyer will not be able to ride it, that would not make him liable." If he said, " Sell me that gray horse if he is fit to ride," and the seller sold it knowing he was not fit, he would be liable. It has been much discussed whether a bill of sale, describing the article sold, amounts to a warranty that the article conforms to the description. It seems now to be well settled that it does. In a Massachusetts case, there was a biU of sale as follows : " H. & Co. bought of T. W. & Co. two cases of indigo, $272." The ai'ticle sold was not indigo, but principally Prussian blue. No fraud was imputed to the seller, and the article was so prepared as to deceive experienced and skilful dealers in indigo. The naked question was presented, whether the bill of sale constituted a war- ranty that the article sold was indigo. And the court held that it did. Here the warranty implied by the bill of sale was as to the kind of goods. In another case the bill was, " Sold E. T. H. 2,000 gallons prime quality winter oil." The thing sold was oil, and winter oil ; but not prime quality. And the court held that the bill of sale amounted to a warranty that it was of that quality. In an English case,. a vessel was advertised for sale as "copper fastened;" and this was held to be a warranty that she was so fastened, according to the usual understanding of merchants. One who sells provisions is always considered in law as war- ranting that they are good and wholesome. (69.) BILL OF SALE OF PERSONAL PEOPERTT. Know all men by these presents, That I (name of (he seller), in the county of for and in consideration of the sum of to in hand well and truly paid, at or before signing, sealing, and delivery of these presents, by (name of the luyer) , the receipt whereof 368 TEE PROPERTY RIGHTS OF I the said do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said To HAVK AND TO HOLD the Said granted and bargained unto the said heirs, executors, administrators, and assigns, to only proper use, benefit, and behoof for ever, and the said does vouch himself to be the true and lawful owner of the goods and effects hereby sold, and to have in himself full power, good right, and lawful authority to dispose of the said in manner as aforesaid, and I do, for myself, my heirs, executors, and administrators, hereby covenant and agx-ee to warrant and defend the said (the goods sold) unto the said heirs, executors, administrators, and assigns, against the law- ful claims and demands of all persons whomsoever. In witness whereof, the said have hereunto set hand and seal , this day of in the year of our Lord one thousand eight hundred and sixty- Executed and delivered in presence of (70.) BILL OF SALE OF PERSON'AL PROPERTY, WITH A CONDITIOIT TO MAKE IT A MORTGAGE, WITH POWER OF SALE. Know all men by these presents. That in considera- tion of paid by the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and deliver unto the said the following goods and chattels, namely : To have and to hold all and singular the said goods and chattels to the said and executors, administrators, and assigns, to their own use and behoof for ever. And hereby covenant with the grantee that the lawful- owner of the said goods and chattels; that they are free from all incum- brances, that have good right to sell the same as aforesaid; and that will warrant and defend the same against the lawful claims and demands of all persons. Provided, nevertheless. That if the grantor , or execu- tors, administrators, or assigns, shall pay unto the .grantee , or executors, administrators, or assigns, the sum of in from this date, with interest semi-annually at the rate of per cent per annum, and until such payment shall not waste or destroy the same, nor Suffer them or any part thereof to be attached on mesne process; and shaU not, except with the consent in writing of the grantee or representatives, attempt to sell or to remove from the same or any part thereof, — then this deed, as also note of even date herewith, signed by the said whereby prom- ise to pay to the grantee • or order the said sum and interest at the times aforesaid, shall be void. A CITIZEN OF TBE UNITED STATES. 369 But upon any default in the performance of the foregoing condi- tion, the grantee or executors, administrators, or assigns, may sell the said goods and chattels by public auction, first giving days' notice in writing of the time and place of sale to the grantor or representatives. And out of the money arising from such sale the grantee or representatives shall be entitled to retain all sums then seourefd by this mortgage, vyhether then or thereafter pay- able, including all costs, charges, and expenses incurred or sustained by them in relation to the said property, or to discharge any claims or liens of third persons affecting the same, rendering the surjilus, if any, to the grantor or executors, administrators, or assigns. And it is agreed that the grantee or executors, ad- ministrators, or assigns, or any person or persons in their behalf, may purchase at any sale made as aforesaid; and that, until default in the per- formance of the condiiion of this deed, the grantor and executors, administrators, and assigns, may retain possession of the above-mortgaged property, and may use and enjoy the same. In witness whereof, the said hereunto set hand and seal and affix and cancel the stamp required by law, this day of in the year one thousand eight hundred and Signed, sealed, and delivered in presence of SECTION T. THE SALE OF ONE'S BUSINESS. Such sales are not unfrequent in this country; and the seller always agrees and promises that be will not pursue that trade, busi- ness, or occupation again. There are numerous cases, both in Eng- lish law-books and in our own, vrhich have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, provided the seller agrees to give up his business and never resume it again, at any time or anywhere; that is, without any limitation of space or time; because it is against the public interest that a man should be permitted to cast himself out from his business or trade for the rest of his life. But the con- tract is good, if for a fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be is not certain. The courts say they must be "reasonable," and made in good faith. A contract not to carry on a business in a certain town would undoubt- edly be good. So, we should say, would be a bargain not to do so within a certain State. In one case in Massachusetts, a contract not to use certain machines in any of the United States except two (which were Massachusetts and Rhode Island) was held valid, all 24 370 THE PROPERTY RIGHTS OF of the States but two being considered as a sufficiently defined or limited place ; but this was unusual. The courts generally would sanction a sale of one's business, if it were limited to only a part of the United States ; as to all New England, for example. lu such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it might be very difficult to prove specific damages ; and such a bargain, if it were reasonable, would be enforced by law. Such damages, agreed on beforehand, are called "liquidated damages." In all cases where damages are demanded, and are not agreed on, they are called unliquidated damages, and it is the duty of the jury to determine, from the evidence before them, what dam- ages the injured party has suffered, and what amount would indem- nify him. SECTION VI. STOPPAGE IN TRANSITU. Here is an instance where a Latin phrase has become English, by general adoption and use. In transitu means " in the transit,'' and the English phrase may just as well be used ; but the Latin one is used much oftener, at least by lawyers. The whole phrase " stop- page in transitu " means, " a stoppage of goods while on their way to the buyer." Thus a seller, who has ■ sent goods to a buyer at a dis- tance, and after sending them learns that the buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right of stoppage in transitu. If the goods are sent to pay a precedent and existing debt of the sender, they are not subject to this right. The right exists only upon actual insolvency ; but this need not ■ be formal insolvency, or bankruptcy at law : an actual inability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the buyer's insolvency, the buyer may at once defeat this stoppage, and reclaim the goods, by payment of the price. So he may, by a tender of adequate se- curity, if the sale be on credit. The stoppage must be effected by the seller, and evidenced by some act ; but it is not necessary that he should take actual posses- sion of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman, or whoevei; else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the A CITIZEN OF TEE UNITED STATES. 371 person who has the immediate custody of the goods ; or if to the principal whose servant has the custody, then at such a time and under such circumstances as that he may, by the exercise of reason- able diligence, communicate it to his servant in time to prevent the delivery to the consignee. Goods can be stopped only while in transitu ; and they are in transitu only until they come into the possession of the buyer. But this possession need not be actual, a constructive possession by the buyer being sufficient to prevent this stojppage ; as, if the goods are placed on the wharf of the buyer, or on a neighboring wharf with notice to him ; or in a warehouse with delivery to him of the key or of an order on the warehouseman ; in these oases they can no longer be stopped, because the transit is ended. The entry of the goods at the cnstom-honse, without payment of duties, does not terminate the transit. If the buyer has de- manded and marked them at the place where they had arrived on the termination of the voyage or journey, personally or by his agent ; or if the carrier still holds the goods, but only as the agent of the buyer, — in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and discharge the" lien, and then stop the goods in transitu. a the buyer has, in good faith and for value, sold the goods, " to arrive," before he has received them, and indorsed and delivered the bill of lading to his purchaser, this second purchaser holds the goods free from the first seller's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller may stop the goods, and hold them subject to this security, and need pay only the specific advances made on their credit, or on that very bill of lading, and not a general indebtedness of the first purchaser to the second. A seller who stops the goods in transitu does not rescind the sale, but holds the goods as the property of the buyer ; and they may be redeemed by the buyer or his representatives, by paying the price for which they are a security ; and if not redeemed, they become the seller's, only in the same way as a pledge might become his ; that is, he may sell them at a proper time, and in a proper manner, and with due notice, so that the buyer may protect his interests. And if the seller then fails to obtain from them the full price due, he has a claim for the balance upon the buyer. If he gets more than the amount due to hiin, he must pay over the balance to the buyer or his assignees. 372 TtJE PROPERTY RIGHTS OF An honest buyer, apprehending bankruptcy, might wish to return the goods to their original owner ; and this he could un- doubtedly do, if they have not become distinctly his property, and the seller be his creditor for the price. But if they have, the buyer has no more right to benefit this creditor by such an appropriation of these goods, than any other creditor by giving him any other goods. CHAPTER VII. MOETGAGES OF GOODS AKD CHATTELS. Mortgages are now often made of personal property, or goods and chattels. The instrument need not be so formal as a mort- gage deed of land. Any instrument will answer the purpose which would suffice as a bill of sale of the property, and which contains, in addition to the words of sale and transfer, a clause providing for the avoidance of it when the debt is paid. I append to this chapter forms for this purpose. When the mortgagor of personal property retained possession, it was formerly doubtful what security the mortgagee had. Now, how- ever, it is generally provided by statute that the mortgagor may retain possession, if the mortgage be recorded. These instruments should always be recorded according to the provisions of the statute of the State in Avhich they are made ; although the general rule would apply to them, that they would operate without record, as to all parties having notice or knowledge of them. The statutes respecting mortgages of personal property always provide for an equity of redemption, which is usually very much shorter than that of land. A frequent period is sixty days. The requirements of the statute in respect to notice, foreclosure, &o., must be strictly followed. It used to be thought that a personal mortgage might be made to cover property subsequently acquired by the mortgagee. Thus, a dealer in dry goods would mortgage all his stock to secure some creditor, and provide in the mortgage that it should operate upon all his goods and merchandise subsequently acquired by him. But it has been held that such a clause has no effect ; because no man can make a mortgage of property which he does not own at the time. A CITIZEN OF THE UNITED STATES. 373 THE PLEDGE OF PERSONAL PKOPEETY. A pledgee (or one to wliom a pledge is made) is bound to take ordinary (not extreme) care of the thing pledged ; and if it be lost or injured for want of such care, he is answerable. He cannot use it, except at Ms own peril ; that is, he is liable for any injury caused by using it, even if it was not his fault. If the thing — as a horse — needs use for its own safety, then the pledgee may use it tor this purpose, and is liable only for an injury caused by his negligence. He must account with the pledgor for the income, increase, or profits. One difference between a mortgagee and a pledgee is this: a mortgagee need not take possession, for the mortgagor may retain it ; and now this is provided for, as we have seen, by recording the mortgage. But if a thing is given in pledge, the pledgee must have and keep possession of it. The most important difference is this: a mortgagee may sell and transfer his mortgage, and his transferee may transfer it again, and so on ; and when the debt is paid, the moi-tgagor reclaims it from whomsoever has it then. But if a pledgee sells the pledge before the debt is due, it is held that he is at once answerable to the 23ledgor for its full value, although the debt be not paid. Some cases of this kind have been carried very far in New York. It is held there — and on grounds which may perhaps suf- fice to make it law everywhere — that if A lends money to B, and takes stocks in pledge, A cannot sell these stocks and keep the proceeds, and replace the stock and return it when the debt is paid. He can do nothing but keep the stock ; and if he sells it, the pledgor may recover at once its full value, and the pledgee vi'ill have no security for his debt. In such a case, a pledgee, being sued, ofiered the testimony of brokers and others to prove a uniform and established usage in the city of New York thus to sell or use pledged stock until the debt was paid; but the court said the usage was illegal, and refused to consider the evidence. It is certain that, after the debt is due and payable, and after- demand if it be payable on demand, the pledgee may have a decree in chancery for the sale of the pledge, or may sell it himself, provided he first gives a reasonable notice to the pledgor, and then sells it, after a reasonable delay, in a proper manner, by a publio sale at auction ; and uses all reasonable precautions to get its value, as by advertisement, &c. ; and does not buy it himself, directly or indirectly ; and conducts himself in all respects honestly ; and then he must account for the proceeds. 374 THE PROPERTY RIGHTS OF Sometimes the parties agree, when the pledge is given, or after- wards, how the pledge shall be treated, or how sold if not re- deemed, &e. ; and such agreements, if fair and reasonable, would undoubtedly be binding on both parties. It is agreed that negotiable paper is excepted from the common rule ; and the pledgee of that may sell or discount it before the debt is due; and must account for it, or its proceeds, if the debt is paid and the paper redeemed, or for the balance if the note is paid to him, and he applies it to payment of the debt. A loan of stock is not like a pledge of stock, because it author- izes the borrower to sell or pledge it, or use it in any way, at any time ; but he must replace and return the same quantity of the same stock, when it is called for. If he could not thus make use of the stock, the loan of it would be of np benefit whatever to the borrower. But he cannot thus use stock pledged to him, unless by a special agreement which permits this use. A pledgee, who receives a pledge to secure one or more specific debts, cannot retain it to secure other and further debts of the pledgor, unless with his consent. This consent may be express, or implied from words or circumstances which show that such was the njiderstanding of the parties. FORMS ANNEXED TO THIS CHAPTEB. (71.) A mortgage of personal property. (72.) A mortgage of personal property, -with warranty. (73.) A mortgage of personal property, with a power of sale. (74.) A mortgage of personal property, with a power of sale. Another form. (71.) A MORTGAGE OF PERSONAL PROPERTY. EJs^ow ALL MEN BT THESE PRESENTS, That I (name of mortgagor), of the town of comity of and State of for and in consideration of dollars, to me in hand paid by (name of mortgagee), of the town of county of and State aforesaid, do sell and convey to the said (name of mortgagee) the following goods and chattels, to wit (list or schedule of the articles, specifying them with sufficient distinctness to make it certain what they are) , warranted free of in- cumbrance, and against any adverse claims: Upon condition, that if the said (name of the mortgagor) pay to the said (name of the mortgagee) dollars and interest, in year , agreeably to a promissory note of' this date, for that sum, payable to the said (?iame of mortgagee), or order, on demand, with interest, this deed shall be void; otherwise, in full force and effect. A CITIZEN OF THE UNITED STATES. 375 The aforesaid parties agree, That, until the condition of this instrument is broken, the said property may remain in possession of the said (name of mortgagor), but after condition broken the said (name of mortgagee) may at his pleasure take and remove the same, and may enter into any building or premises of the said (name of the mortgagor) for that purpose. Witness our hands and seals, this day of a.d. 18 (Signature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.) Sealed and delivered in presence of State or J ^S8. County op ) Be it remembered, That on this day of eighteen hundred and before me, the undersigned, notary public in and for said county and State, duly commissioned and qualified, came , ■who is known to me to be the same person whose name is subscribed to the foregoing instrument of writing, as party thereto, and he acknowledged the same to be his act and deed, for the purpose therein mentioned. In testimony whereof, I have hereunto set my hand and afiixed my oflBoial seal, at my office, in the city of the day and year last aforesaid. Notary Public. (72.) A MORTGAGE OF PERSONAL PEOPERTT, WITH WAEEANTT. Know all men by these presents, That J (name and residence of mortgagor), in consideration of the sum of to me in hand paid 'by (name and residence of mortgagee) , the receipt whereof is hereby acknowl- edged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said (name of mortgagee), the following arti- cles of personal property; that is to say (list or schedule, as in Form 71). To have and to hold all and singular the said goods, and chattels unto the said (name of the mortgagee), and his executors, administrators, and assigns, to his and their use for ever. And I, the said mortgagor, for myself and lor my executors and administrators, do covenant to and vrith the said mortgagee, and with his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property; that the same are free from all incumbrances, and that I will, and my executors and administrators shall, warrant and defend the same to the said mortgagee, his executors, administrators, and assigns, against the lawful claims and demands of all persons. Provided, nevertheless. That if the said mortgagor, his executors or administrators, shaU well and truly pay unto the said mortgagee, his exec- utors, administrators, or assigns, the sum of dollars, in months from the date hereof (or on a certain day, stating the day when the 376 TUE PROPERTY RIGHTS OF money is to he paid), 'with interest at per cent, then this deed, as also a certain promissory note bearing even date herewith, signed by the sai^ mortgagor, whereby he promises to pay the said mortgagee the said sum and interest at the time aforesaid, shall both be vpid ; otherwise, shall remain in full force and virtue. And provided, also. That until default by the said mortgagor, or his executors and administrators, in the performance of the condition afore- said, or of some part thereof, it shall and may be lawful for him or them to keep possession of the said granted property, and to use and enjoy the same; but in case of such default, or if the same or any part thereof shall be attached, at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, or his execu- tors or administrators, shall attempt to sell the same, or any part thereof, •without notice to the said mortgagee, or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed, or shall remove the same, or any part thereof, from the place in which they now are, without such notice and assent, then it shall be lawful for the said mortgagee, or his executors, administrators, or assigns, to take immediate possession of the whole of said granted property, to his and their own use. Lsr TESTIMONY WHEREOF, I have hereunto set my hand and seal, this day of in fhe year of our Lord one thousand eight hundred and sixty- (^Signature.') (Seal.) Executed and delivered in presence of (73.) A MORTGAGK OF PERSONAL PROPERTY, WITH A POWER OF SALE. Kirow ALL MEN BY THESE PRESENTS, That I (name of mortgagor) , of the town (or city) of in the county of and State of in consideration of dollars to me paid by ( name of mortgagee) , of the town (or city) of in the county of and State of the receipt whereof is hereby acknowledged, do hereby grant, bargain, and sell unto the said (name of mortgagee) and his assigns, for ever, the following goods and chattels, to wit (list or schedule, as in Form 71). To HAVE AND TO HOLD all and singular the said goods' and chattels unto the mortgagee herein, and his assigns, to their sole use and behoof for ever. And the mortgagor herein, for himself and for his heirs, ex- ecutors, and administrators, does hereby covenant to and with the said mortgagee and his assigns, that said mortgagor is lawfully possessed of the said goods and chattels, as of his own property; that the same are free from all incumbrances; and that he will warrant and defend the same to him the said mortgagee and his assigns against the lawful claims and demands of all persons. Provided, nevertheless. That if the said mortgagor shall pay to the mortgagee, on the day of in the year A CITIZEN OF TBE UNITED STATES. 877 the sum of dollars, then this mortgage is to be Toid; otherwise, to remain in full force and effect. Ajstd provided, further, That until default be made by the said mortgagor in the performance of the condition aforesaid, it shall and may be lawful for him to retain the possession of the said goods and qhattels, and to use and enjoy the same ; but if the same or any part thereof shall be attached or claimed by any other person or persons at any time before payment, or the said mortgagor or any person or persons whatever, upon any pretence, shall attempt to «arry ofl, conceal, make way with, sell, or in any manner dispose of the same or any part thereof, without the au- thority and permission of the said mortgagee or his executors, administra- tors, or assigns, in writing expressed, then it shall and may be lawful for the said mortgagee, with or without assistance, or his agent or attorney, or his executors, administrators, or assigns, to take possession of said goods and chattels, by entering upon any premises wherever the same may be, whether in this county or State, or elsewhere, to and for the use of said mortgagee or his assigns. And if the moneys hereby secured, or the mat- ters to be done or performed, as above specified, are not duly paid, done, or performed at the time and according to the conditions above set ^orth, then the said mortgagee, or his attorney or agent, or his executors, admin- istrators or assigns, may, by virtue" hereof, and without any suit or pro- cess, immediately enter and take possession of said goods and chattels, and sell and dispose of the same at public or private sale; and after satisfying the amount due, and jill expenses, the surplus, if any remain, shall be paid over to said mortgagor or his assigns. The exhibition of this mortgage shall be sufficient proof that any person claiming to act for the mortgagee is duly made, constituted, and appointed agent and attorney to do whatever is above authorized. In witness whereof. The said mortgagor has hereunto set his hand and seal, this day of in the year of our Lord one thousand eight hundred and (Signature of mortgagor.) (Seal,') Signed, sealed, and delivered in presence of State of ) >-S9. County. ) This mortgage was acknowledged before me, by (the mortgagor) , this day of A.D. 18 (Signature.) (74.) A MORTGAGE OF PERSONAL PEOPERTT, WITH A POWER OF SALE ANOTHER FORM. Know all men by these presents. That I (name and residence of mortgagor), in consideration of the sum of to me paid by (name and residence of mortgagee), the receipt whereof is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bar- 378 TBE PROPERTY RIGHTS OF gain, and sell, unto the said (name of rriort^agie)-, the following named and described articles of personal property; that is to say (Jiere follows the list or scliedule and description of the drticles 'mortgaged, as in Form 71). To HAVE AND TO HOLB all and singular the said goods and chattels unto the said {name of mortgagee), and his executors, administrators, and assigns, to his and their sole use for ever. And I, the said mortgagor, for myself and my executors and administrators, do covenant to and with the said mortgagee and his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property; that the same are free from all incumbrances; and that I wiU, and my executors and administrators shall, warrant and defend the same to the said mortgagee and his executors, administrators, and assigns, against the lawful claims and demands of all persons. Provided, neverthelesis, That if the said mortgagor, or his execu- tors or administrators, shall well and truly pay unto the said mortgagee, or his executors, administrators, or assigns, the sum of then this deed, as also a certain promissory note bearing even date herewith, signed by the said mortgagor, whereby he promises to pay the said mort- gagee the said sum and interest at the time aforesaid, shall both be void; and otherwise they shall remain in full force and virtue. And provided, also. That until default by the said mortgagor, or his executors and administrators, in the performance of the condition afore- said, or of some part thereof, it shall and may be lavrful for him or them to keep possession of the said granted property, an(i to use and enjoy the same ; but in case of such default, or if the same or any part thereof shaU be attached at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, his executors or administrators, shall attempt to sell the same or any part thereof with- out notice to the said mortgagee or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed; or shall remove the same, or any part thereof, from the place where they now are, •without such notice and assent, then it shall be'lawful for the said mort- gagee, his executors, administrators, or assigns, to take immediate posses- sion of the whole pf said granted property to his or their own use, and to sell and dispose of the whole or of so much of said granted property at public auction as shall produce a sum of money sufficient to pay and dis- charge the above-mentioned debt or liability, with interest, and all costs and charges of keeping and selling the same, and all just and equitable liens then existing thereon, without further notice or demand, except giving days' notice of the time and place of said sale to said mort- gagor or his legal representatives; and after the said debt or liability, with interest, costs, charges, and Hens, shall be so discharged and satisfied, the surplus of the money arising from said sale, and the residue of said granted property, shall be paid and restored to said mortgagor or his legal repre- sentatives, discharged from all claim under this mortgage. In testimony whereof, I, the said (name of mortgagor), have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Executed and delivered in presence of A CITIZEN OF THE UNITED STATES. 379 CHAPTER yill. LETTmG AND HIKIKG OF EEAL PEOPERTY. LEASES. A lease is a contract, whereby one party (the tenant) takes the possession of the land and all that is on it, and the other party (the landlord) gives possession of the land, and reserves (that is, agrees to take) a rent, which the tenant agrees to pay him by way of compensation. All things usually comprehended under the words "house," " farm," " land," " store," &c., pass to the tenant, where such words are used, unless there be an express exception. And inaccur3,cie8 as to qualities, names, measurements, or amounts will be connected, if there be enough in the lease to make the purposes and intentions of the parties certain. And letting to hire any thing to be used carries with it all those appurtenances and accompaniments neces- sary for the proper use and enjoyment of the thing which.belong to the lessor. A landlord is bound to put his lessee into possession with good title. If he covenants " to renew " generally, this means a renewal of the lease on the same terms, but without inserting in the new lease another covenant of renewal. A landlord is under no legal obligation to repair the house, unless he expressly agrees to do so. If the house is never so much dilapidated and disfigured as to paper, paint, &c., and locks and blinds and doors and windows are out of order, and the like, the tenant can claim nothing of the landlprd. Even if it becomes wholly uninhabitable by no fault of the house or of the landlord, as if it burns up, or is blown down, or if the overflow of a stream ruins a field or a farm, still the landlord is not bound to do any thing, unless by special agreement, and is entitled to his rent under a common lease. Leases usually now provide for such cases. But if the house is uninhabitable by its own fault, as if it has a noisome and unwholesome stench, or, according to one case, if it be overrun with rats, or if it be so decayed as to be open to the weather, it would seem to be the law of this country that the tenant may leave the house; always provided, however, that the objection or defect be not one which the tenant knew or anticipated, or would 380 THE PROPERTY RIGHTS OF have known or expected if he had made reasonable inquiry and investigation before he took his lease. And perhaps no tenant can leave his house or refuse or abate his rent, foiv any objection or difficulty arising after he hires the house. But, strange to say, the important question what the tenant's rights are in such a case is still uncertain. If the house be wholly destroyed, the tenant must still pay rent, under an ordinary lease ; because the law looks upon the land as the principal thing, and the house as secondary. And not only so, but if the tenant covenants " to return and redeliver the house at the end of the term, in good order and condition, reasonable wear and tear only excepted," he would be bound under this agreement to rebuild the house if it were burned down. But recently all well-drawn leases have clauses providing that the rent shall cease or be abated while the premises are uninhabitable from fire or any other unavoidable calamity. A similar exception is added to the clause about returning the house at the end of the lease. If this exception be in, a tenant is not bound to rebuild, even if the house be burned through the carelessness of himself or his servants. A tenant of a room, or of a suite of chambers, is entitled to the use of all the appurtenances and accommodations which fairly go- with it, as of the front door and entry, water-closets, and of all windows, &c., proper to the enjoyment of what he hires. But an express agi-eement about these things, and cellar-room, pump, and the like, is always safest. The tenant is not bound to make general repairs, without an express agreement. But he must make such as are necessary to preserve the house from injury ; as from rain, if shingles or slates are blown off or glass broken. And he would be bound even for proper ornamental repairs, as paper and paint, under a covenant to return "in good order." The tenant of a farm is bound, without express covenants, to manage and cultivate the same in such a manner as good hus- bandry and the usual course of management of such farms in his vicinity would require. The times for payment of rent are usually specified in the lease ; if not, they would be governed by the usage of the country, if there were any of sufficient distinctness and force. A tenant under a lease which says nothing about underletting has a perfect right to underlet, remaining himself bound for his rent to his landlord. If there be a clause prohibiting him from underletting or as- signing, and he agrees not to, nevertheless he may do so without A CITIZEN OF THE UNITED STATES. 381 forfeiting the land ; but he ■will be, as before, liable for rent : and besides this, he will be responsible in an action for any damages which the landlord can show that he has sustained by such underletting. It is usual to go further in the lease than this, and provide that such underletting shall make a forfeiture of the lease, and authorize the landlord to enter upon the premises and turn the tenant out. Where there is this covenant, if the tenant now underlets, the landlord cannot avail himself of the clause of for- feiture and turn the tenant out, and afterwards hold the tenant for his rent. He may either hold him for his rent, and also for dam- ages, or he may terminate the lease ; but cannot do both. That is, if he continues to hold the tenant responsible for rent, he cannot prevent the tenant's letting somebody else occupy the house and pay to him (the tenant) the rent which he pays to the landlord. A tenant is not responsible for taxes, unless it is expressly agreed in the lease that he shall be. A tenant of a farm, if his lease is terminated by any event which was uncertain, and which he could neither foresee nor con- trol, is entitled to the annual crop which he sowed while his interest in and right to the farm continued. If a lease be for a certain time, the tenant loses all right or interest in the land or premises when that time comes, and he must leave, or the landlord may turn him out at once. But he is a tenant at will if he holds over after a lease^with consent, or if he occupies the land or house or store without a lease but with consent and an oral bargain ; and a tenant at will cannot leave, nor can he be turned out, without a notice to quit. The law on this subject is not uniform. In general, however, it is this: if rent is payable quarterly, or not more frequently, then there must be a quarter's notice. If rent is payable oftener, then the notice must be as long as the' period of payment. Thus, if rent is payable monthly, there must be a month's notice; if weekly, a week's notice. But the notice must terminate on a day when the rent is payable. It may be given at any time, but operates only after the required interval or period betwe"en two payments. Thus, if a tenant whose lease terminates on the 31st of Decendber holds over by .consent, and pays rent quarterly, and the landlord wishes that he should leave the house on the last day of September, he may give notice on the preceding 30th day of June, or any day preceding that. But if he gives notice on any day before.the 30th of June, the tenant will still have a right to stay until the 30th of September. Properly, the notice should specify the day, and the right day, when the tenant must leave ; and should be in writing. 382 THE PROPERTY RIGHTS OF Where the rent is in arrear, the notice to quit may he more brief; the statutes of the different States vary on this point, but a frequent period is fourteen days. And if notice to quit is given because the rent is unpaid, it may be given at any time, and will operate at the end of the period which the law designates ; but it should specify the day ofl which the tenant must quit. A tenant may give notice of his intention to quit ; and generally it will be subject to the same rules already stated in reference to the notice given by a landlord. A tenant should give his notice to the party to whom he is bound to pay rent, or to an authorized agent of that party. FIXTURES. It is quite important that both tenant and landlord should have some knowledge of the law of fixtures ; for this tells them what things the tenant may take away and what he cannot. For there are m^ny things which a tenant may add, and afterwards remove, and many which he cannot remove. The method of affixing them may be a useful criterion, as it indicates the purpose of removal or otherwise. If with screws, or in such a way as to show that removal was intended, things may be taken away, when, if the same things were fastened more permanently, they could n-ot be. In modern times the rule in favor of the tenant seems to ex- tend as far as this : whatever he has added, and can remove, leav- ing the premises entirely restored and in as good order as if he had not removed it, that he may take away. Among the things held to be removable, in different adjudged cases, are these : ornamental chimney-pieces ; coffee-mills ; cornices screwed on ; furnaces ; fii"e- frames; stoves; iron backs to chimneys; looking-glasses; pumps; gates ; rails and posts ; barns or stables on blocks. Among those held not removable are these : barns fixed in the • ground; benches fastened to the house; trees, plants, and hedges, not belonging to a gardener by trade; conservatory strongly affixed ; glass windows ; locks and keys. But almost every one of these might be removable, or not, according to the intent of the parties, and the rule above stated, of removableness .with or without injury. If a man sells a house, the law of fixtures i'S coniStrued far more severely against him than against a tenant who leaves a house; that is, the seller must permit the buyer to hold a great many things which an outgoing tenant might remove. Of course, a seller may take what he will from his house before he sells it, or make what bargain the parties choose to make about the fix- tures. But if he makes no such bargain, and sells the house, he A CITIZEN OF THE UNITED STATES. 383 cannot then take from the house all that a tenant who put them there might take. In favor of trade and manufactures, the law permits almost any thing which was put in by a tenant for such purpose to be taken away, if the premises can be restored substantially to their original condition. FOEMS ANNEXED TO THIS CHAPTER. (75.) A short form of a lease. (76.) A fuller form, with a provision for abatement of rents. (77.) A short form of lease, in use in the Western States. (78.) A lease of city property, in use in Chicago. (79.) A lease, with provisions for taxes and assessment. (80.) A lease, vrith covenants about water-rate and injury by fire; in use in New York. (81.) A lease by grant, in use in the Western States. (82.) A lease by certificate, with surety. (83.) A lease of city property, in use in St. Louis. (84.) What is called a country lease, in use iu the Western States. (85.) A ground lease. (86.) An assignment of lease, and ground-rent. (87.) A lease containing chattel mortgage covenants, to secure the rent. (88.) A building lease. (89.) A mining lease. (90.) A lease of land, supposed to contain oil, salt, or other minerals. (91.) An assignment of a lease. (92. ) Landlord's notice to quit for non-payment of rent. Short form. (93.) Landlord's notice to quit for non-payment of rent. Another form. (94.) Landlord's notice to pay rent due, or quit. (95.) Landlord's notice to leave at the end of the term. (96.) Landlord's notice to determine a tenancy at will. (97.) A receipt for rent, iu use in New York. (75.) A SHORT FORM OF A LEASE. This indenture. Made this day of in the year of our Lord one thousand eight hundred and sixty- WiTNESSETH, That I (name and residence of the lessor), do hereby lease, demise, and let unto (name and residence of lessee), a certain parcel of land, in the city (or town) of county of and State of with all the buildings thereon standing, and the appurtenances to the same belonging, bounded and described as follows (or, a certain house in said city, giving the street and number, with the land under and adjoining the same) . 384 THE PROPERTY RIGSTS OF ( The premises need not he described quite so minutely or fully as is proper in a deed or mortgage of land, hut must he so described as to identify them per- fectly, and mike it certain just what premises are leased.") To HOLD for the term of from the day of yielding and paying therefor the rent of And said lessee does promise to pay the said rent in four quarterly pay- ments, on the day of (^or state otherwise just when the payments of rent are to he made), and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon, during the term, and also the rent and taxes, as above stated, for such further time as the lessee may hold the same; and not make or suffer any waste thereof; nor lease, nor underlet, nor permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein but with the approbation of the lessor thereto, in writing, having been first obtained; and that the lessor may enter to view, and make improvements, and to expel the lessee, if he shall fail to pay the rent and taxes as aforesaid, or make or suffer any strip or waste thereof. In witness whereof. The said parties have hereunto interchangeably set their hands and seals, the day and year first above written. (^Signature.) (Seal.) (Signature.) (Seal.) Signed, sealed, and delivered in presence of (76.) A FULLER FOEM, WITH A PROVISION FOR ABATEMENT OF RENT. This indenture. Made this day of in the year of our Lord one thousand eight hundred and by and be- tween (name and residence of lessor), and (name and residence of lessee). WITNESSETH, That the said (name of lessor) does hereby lease, demise, and let unto the said (name of lessee) , (describe the premises, as directed in Form 75). To hold for the term of commencing the day of A.D. one thousand eight hundred and the said lessee or those claiming under him yielding and paying rent therefor, the sum of for each and every year, and after the same rate for any part of a year. And the said lessee, for himself, his heirs, executors, and administra- tors, does hereby covenant to and with the said lessor, and his heirs and assigns, that he or they will pay the said rent of in equal sums of the first of which payments shall be made on the day of A.D. one thousand eight hundred and and that he or they vnll pay rent after the same rate for such further time as he the said lessee, or those claiming under him, may hold the premises; that he or they will, from time to time, upon request by the lessor, or his A CITIZEN OF THE UNITED STATES. 385 heirs or assigns, pay to them such sum or sums of money as shall he equal to the amount of the taxes and duties, and water-taxes, that shall be levied or assessed on the demised premises for each year and part of a year during the term aforesaid, and during such further time as the said lessee and those claiming under him may hold the premises; that he or they will not suffer nor commit any strip or waste in the premises; that he or they ■will not assign this lease, nor underlet the whole or any part of the prem- ises, to any person or persons; and that no alterations or additions shall be made during the term aforesaid, in or to the same, without the consent of the said lessor, or of those having his estate in the premises, being first obtained in writing, allowing thereof; and also that it shall be lawful for the said lessor, and those having his estate in the premises, at seasonable times to enter into and upon the same to examine the condition thereof; and further, that he the said lessee and his representatives shall and will, at'the expiration of said term, peaceably yield up unto the said lessor, or those having his estate therein, all and singular the premises, and all future erections and additions to or upon the same, in as good order and condition, in all respects (reasonable wearing and use thereof, and damage by fire and other unavoidable casualties excepted), as the same now are, or may be put into by the said lessor or those having his estate in the premises. Provided always. And these presents are upon this condition, that if the said rent shall be in arrear, or the said lessee or his representatives or assigns do or shall neglect or fail to perform and observe any or either of the above covenants hereinbefore contained, which on his or their part are to be performed, then and in either of said oases the said lessor, or those having his estate in the said premises, lawfully njay, immediately or at any time thereafter, and while such neglect or default continues, and without further notice or demand, enter into and upon the said premises, or any part thereof, in the name of the whole, and repossess the same as of his former estate, and expel the said lessee and those claiming under him, and remove his or their effects (forcibly i£ necessaiy) , without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent, or pre- ceding breach of covenant. And provided, also. That in case the premises, or any part thereof, shall, during said term, be destroyed or damaged by fire or other Unavoid- able casualty, so that the same shall be thereby rendered unfit for use and habitation, then, and in such case, the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injuries' sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said less(Jr, or these presents shall thereby be determined and ended at the elec- tion of the said lessor or his legal representatives. In testimony whereof, The said parties have set their hands and seals, on the day and year first above written, to this and to another instrument of Hke tenor and date. (^Signature.^ {Seal.) (^Signature.') (^Seal.') Signed, sealed, and delivered in the presence of 25 386 THE PROPERTY RIGHTS OF (77.) A SHORT FORM OF LEASE, IN USE IN THE WESTERN STATES. This indbntukb, Made this day of 186 between (name and residence of the lessor) , party of the first part, and {name and residence of the lessee ), party of the second part, witnesseth, that the said party of the first part, in consideration of the covenants of the said party of the second part, hereinafter set forth, do by these pres- ents lease to the said party of the second part the following-described prop- erty, to wit (describe the property, as directed in Form 75). To HAVE AND TO HOLD the Same to the said party of the second part, from the day of 186 to the day of 186 And the said party of the second part, in consideration of the leasing the premises as above set forth, covenants and agrees with the party of the first part to pay the said party of the first part, as rent for the same, the sum of dollars, payable as follows, to wit (here state the times and terms of payment, much as in Form 75) . The said party of the second part further covenants with the said party of the first part, that at the expiration of the time mentioned in this lease peaceable possession of the said premises shall be given to said party of the first part, in as good condition as they now are, the usual wear, inevi- table accideijts, and loss by fire excepted; and that upon the non-payment of the whole or any portion of the said rent at the time when the same is above promised to be paid, the said party of the first part may, at his elec- tion, either distrain for said rent due, or declare this lease at an end, and recover possession as if the same was held by forcible detainer: the said party of the second part hereby waiving any notice of such election, or any demand for the possession of said premises. The covenants herein shall extend to and be binding upon the heirs, executors, and administrators of the parties to this lease. Witness the hands and seals of the parties aforesaid. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) (78.) A LEASE OF CITY PEOPEETT, IN USE IN CHICAGO. This INDENTURE, Made this day of in the year of our Lord one thousand eight hundred and sixty- between (name nf the lessor), of the city of in the county of and State of party of the first part, and (nayne and residence of the lessee), of the second part, WITNESSETH, That the said party of the first part, for and in considera- tion of the covenants and agreements' hereinafter mentioned, to be kept and performed by the said party of the second part, or his executors, ad- ministrators and assigns, has demised and leased to the said party of the A CITIZEN OF TBR UNITED STATES. 387 second part all those premises situate, lying, and being in the city of Chicago, in the county of Cook, and State of Illinois, and known and desci'ibed as follows, to wit (here describe the premises, as directed in Form 75). To HAVK AND TO HOLD the Said above-described premises, with the appurtenances, unto the said party of the second part, and his executors, administrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and sixty- for and during, and until the day of in the year of our Lord one thousand eight hundred and the said party of the second part paying rent therefor, as hereinafter stated. And the said party of the second part, in consideration of the leasing the premises aforesaid, by the said party of the first part, to the said party of the second part, does covenant and agree with, the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of the first part, at the house (or office or store) of the said party of the fii'st part, numbered in Street, Chicago, or at the house or oflBce of his assigns, as rent for the said demised premises, the sum of (state the whole annual rent) , payable as follows (here state the times and terms of the payments of rent) . And it is further agreed by the said party of the second part, in con- sideration of the leasing of the premises, that the said party of the second part shall and will pay, or cause to be paid, promptly, as soon as the saine becomes due, all assessments for water-rents that may be levied upon said demised premises, during the continuance of this lease, by the Board of Water Commissioners of the city of Chicago, and save the said premises and the said party of the first part harmless therefrom, and that he will keep said premises in a clean and healthy condition, in accordance with the ordinances of the city and the direction of the Sewerage Commissioners. And the said party of the second part hereby covenants and agrees, in • case of delay in payment of any water-rent levied upon said premises dur- ing said term, to pay said party of the first part, as liquidated damages for such breach of covenant, double the sum of such rent so assessed upon said premises as aforesaid. And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease mentioned, he will yield up the said demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable' accident and ordinary wear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part first had and obtained thereto. It is expressly understood and agreed. By and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid on the day and at the place of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the 388 THE PROPERTY RIGHTS OF second part, or his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may he necessary in so doing, and the said premises again to repossess and enjoy as in his or their first and former estate ; apd it shall be the duty of the said party of the second part, his executors, administrators, or assigns, to be and appear at the said place above specified for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assigns; or in his or their absence, if the party of the second part or his legal representatives shall offer to pay the same then and there, such offer shall prevent such forfeiture. And it is expressly understood that it shall not be necessary in any event for the party of the first part, or his assigns, to go on or near the said demised premises to demand said rent. Or elsewhere than at the place aforesaid. And in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of the second part, in that case, hereby waives all legal rights which he may have to hold or retain any such property, under any exemption laws now in force in this State, or in any other way. Meaning and intending hereby to give to the said party of the first part, and his heirs, executors, administrators, and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent, in manner aforesaid, any thing hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part,' or his heirs, executors, admin- istrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, administrators, and assigns, does hereby covenant, promise, and agree to surrender and deliver up said above-described premises and property peaceably to the said party of the first part, or his heirs, executors, administrators, and assigns, immediately upon the determination of said term as aforesaid; and, if he shall remain in thp possession of the same days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated; and in order to enforce a for- feiture of this lease for non-payment of rent when due, no demand for rent ■when due shall be required, any demand being hereby expressly waived. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs and attorney's A CITIZEN OF THE UNITED ^STATES. 3g9 fees and expenses that shall arise from enforcing the covenants of this indenture by the party of the first part. In testimony whereof, The said parties have hereunto set their hands and seals, the day and year first above written. (^Signature of lessor.') {Seal.') (^Signature of lessee.) (SeaZ.) In presence of ' (79.) A LEASE, WITH PROVISIONS FOR TAXES AND ASSESSMENTS. This indenture, Made the day of in the year one thousand eight hundred and between (name and residence of lessor), of the first part, and (name and residence of lessee), of the second part, witnesseth. That the said party of the first part, for and in consid^ eration of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, has granted, demised, and to farm letten, and by these presents does grant, demise, and to farm let, unto the said party of the second part, and his executors, administrators, and assigns, all (describe the premises, as in Form 75) . To HAVE AND TO HOLD the Said above mentioned and described prem- ises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the day of one thousand eight hundred and for and dur- ing and until the full end and term of thence next ensuing: and fully to be complete and ended, yielding and paying therefor unto the said party of the first part, his heirs or assigns, yearly, and every year during the said term hereby granted, the yearly rent or sum of lawful money of the United States of America, in equal quarter-yearly payments, to wit, on the first day of (name the months), in each and every of the said years: provided always, nevertheless, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid on any day of payment whereon the same ought to be paid as aforesaid; or if default shall be made in any of the covenants herein contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, then and from thenceforth it shall and may be lawful for the said party of the first part, his heirs or assigns,- into and upon the said demised premises, and every part thereof, wholly to re-enter and remove all persons therefrom, and the same to have again, repossess, and enjoy, as in his or their first and fortner estate, any thing hereinbefore contained to the contrary thereof in any wise notwith- standing. And the said party of the second part, for himself and his heirs, executors, and administrators, does covenant and agree, to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, shall and will yearly, and every year during the 890 THE PROPERTY RIGHTS OF said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days and in manner limited and prescribed as aforesaid for the payment thereof, ■without any deduction, fraud, or delay, accord- ing to the true intent and meaning of these presents. And that the said party of the second part, his executors, administrators, or assigns, shall •and will, at their own proper costs and charges, bear, pay, and discharge all such taxes, duties, and assessments whatsoever, as shall or may, during the said term hereby granted, be charged, assessed, or imposed upon the said demised premises. And that on the last day 6f the said term, or other sooner determina- tion of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will peaceably and quietly leave, surrender, and yield up unto the said party of the first part, his heirs or assigns, all and singular the said demised premises. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, by these presents, that the said party of the second part, execu- tors, administrators, or assigns, paying the said yearly rent above reserved, and performing the covenants *ind agreements aforesaid on his and their part, the said party of the second part, his executors, administrators, and assigns, shall and may at all times during the said term hereby granted peaceably and quietly have, hold, and enjoy the said demised premises, without any manner of let, suit, trouble, or hinderance of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever. In witness whekeof, the said have hereutfto set their hands and seals, interchangeably, to two copies of this indenture. {Signature of lessor.) (Seal.') (Signature of lessee.) (Seal.) In presence of (80.) A LEASE, WITH COVENANTS ABOUT "WATER-KATE AND INJUET BY FIEE, IN USE IN NEW YORK. This agreement. Made between (name and residence of lessor), party of the first part, and (name and residence of lessee), party of the second part, witnesseth. That the said party of the first part has agteed to let, and hereby does let, and the said party of the second part has agreed to take, and hereby does take, the following-described premises (here describe the premises, as in Form 75), for the term of to com- mence and to end to be occupied (describe the intended occupation), and not otherwise. And the said party of the second part hereby covenants and agrees to pay unto the said party of the first part the annual rent or sum of dollars, payable (state the times and terms of the payments) . And shall also pay the Croton water-rate, and wUl keep the plumbing A CITIZEN OF THE UNITED STATES. 391 wort, pipes, glass, and the premises generally, in repair, and -will surrender them at the expiration of the said term in as good state and condition as reasonable use and wear thereof will permit. And the said party of the second part further covenants that he will not assign, let, or underlet'the whole or any part of the said premises, nor make any alteration therein, without the written consent of the said party of the first part, under the penalty of forfeiture and damages ; and that he will not occupy the said premises, nor permit the same to be occupied, for any business deemed extra hazardous, without the like consent, under the like penalty. And the said party of the second part further covenants that he will permit the said party of the first part, or his agent, to show the premises to persons wishing to hire or purchase, and three months next preceding the expiration of the term will permit the usual notices of "to let" or "for sale" to be placed upon the windows, walls, or doors of said premises, and remain thereon without hinderance or molestation. And also, that if default be made in any of the covenants herein con- tained on the part of the party of the second part, or if the said premises or any part thereof shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor; and re-let the said prem- ises or any part thereof in one or more parcels, as the agent of the said party of the second part, and receive the rent thereof, applying the same, first to the payment of such expense as he may be put to in re-entering, and then to the payment of the rent due by these presents; and the balance (if any) to be paid over to the said party of the second part; and in case of deficiency said party of the second part will pay the same. And the said party of the second part hereby further covenants that if any default be made in the payment of the said rent or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine; and the said party of the first part shall and may re-enter the said premises, and remove all persons therefrom; and the said party of the second part hereby expressly waive the service of any notice in writing of intention to re-enter, as provided for in the third section of an act entitled "An Act to abolish distress for rent, and for other purposes," passed May 13, 1846. And it is further agreed between the parties to these presents, that, in case the building hereby leased shall be partially damaged by fire, the same shall be repaii-ed as speedily as possible by the party of the first part; that, in case the damage shall be so extensive as to render the building untenant- able, the rent shall cease until the same be repaired, provided the damage be not caused by the carelessness or negligence of- the party of the second part, or his agents or servants. If the building be so damaged that the owner shall decide to rebuild, the term shall cease, the premises be surrendered, and the accrued rent be paid up to the time of the fire. In consideration of the letting of the premises above mentioned to the above-named {name of the lessee), and of the sum of one dollar to him paid 892 THE PROPERTY RIGHTS OF by the said party of the first part, the said party of the second part does hereby covenant and agree to and with the party of the first part above named, and his legal representatives, that if default shajl at any time be made by the said party of the second part, in the payment of the rent and pei'formance of the covenants above contained on his part to be paid and performed, that he will well and truly pay the said rent or any arrears thereof that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part. Witness our hands and seals, this day of in the year of our Lord one thousand eight hundred and (^Signature of lessor.") QSeal.') (^Signature of lessee.} (^Seal.) {Witness.') (81.) A LEASE BY GRANT, IN USE IN THE WESTERN STATES. This indenture. Made and entered into on the day of one thousand eight hundred and sixty- by and between (name of lessor), of (residence of lessor), party of the first part, and (name of lessee), of (residence of lessee), party of the second part, witnesseth, That the said party of the first part, in consideration of the rents reserved, and the covenants hereinafter contained, does hereby grant, demise, and to farm let unto the said party of the second part (describe the premises, as in Form 75). To HAVE AND TO HOLD THE SAME, With all the rights, immunities, privileges, and appurtenances thereto belonging, imto the said party of the second part, and his executors, administrators, and assigns, for and during the full end and term of commencing on the day of 186 and ending on the day of 186 under and subject to the stipulations hereinafter contained, the said party of the second part yielding and paying to the said party of the first part, for the said premises, the annual rent of payable in equal quarterly (or monthly) payments; that is to say on the during said term; which rent the said party of the second part, for himself and his executors, administrators, and assigns, covenants well and truly to pay, at the times aforesaid. And the said party of the second part covenants and agrees that if the rent aforesaid should at any time remain due and unpaid, the same shall bear interest at the rate of per cent per annum from the time it so becomes due until paid. And the said party of the second part further covenants and agrees that it shall be lawful for the said party of the first part, and those having freehold estate in the premises, at reasonable terms, to enter into and upon the same, to examine the condition thereof; and also that the said party of the second part and his legal tepresentatives shall and will, at the expiration of this lease, whether by limitation or for- feiture, peaceably yield up to the said party of the first part, or his legal A CITIZEN OF THE UNITED STATES. 893 representatives, the said premises, in the condition received, only excepting natural wear and decay, and the effects of fire; and that the said party of the second part, for and during all the time that he or any one else in his name shall hold over the premises, after the expiration of this lease, in either of said ways, shall and will pay to said party of the first part double the rent hereinbefore reserved. Also the said party of the second part further covenants and agrees that any failure to pay the rent hereinbefore reserved when due, and within days after a demand of the same, shall produce an absolute forfeiture of this lease, if so determined by said party of the fii'st part, or his legal' representatives. Also that this lease shall not be assigned, nor the said premises, or any part' thereof, underlet, without the written consent of the said party of the first part, or his legal representatives, under penalty of forfeiture. And that all repairs of a tem- porary character, deemed necessary by said party of the second part, shall be made at his own expense, with the consent of the said party of the first part, or his legal representatives, and not otherwise. . Provided always. And these presents are on this express condition, that if the said party of the second part, or his legal representatives, shall fail to pay the rent hereinbefore reserved, for the space of days after the same shall have become due, or shall fail to perform any of the covenants hereinbefore entered into on his and their part, then the said party of the first part shall be at liberty to declare this lease forfeited, by serving a written notice to that effect on the said party of the second part,- or his legal representatives, and to re-enter upon and take possession of the demised premises, free from afty claim of the lessee or any one claiming under him. And all estate herein granted shall, upon service of such notice, forthwith cease; and said lessor, his heirs, legal representatives, or assigns, shall be forthwith entitled to the possession of the demised prem- ises, without any further proceeding at law or otherwise to recover posses- sion thereof. And the said party of the first part covenants and agrees with the said party of the second part, and his legal representatives, that, the covenants herein contained being faithfully performed by the said party of the second part, he shall peaceably hold and enjoy the said demised premises, during the term aforesaid, without hinderance or interruption by the said lessor or any ether person. In witness whekeof. The said parties have executed this indenture in duplicate, signing their names and .affixing their seals to both parts thereof, the day and year in this behalf above written. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) In presence of (82.) A LEASE BY CERTIFICATE, "WITH SURETY. This is to certify. That I have let and rented unto (name of lessee), (describe the premises, as in Form 75), for the term of from the day of 18 at the annual rent of 394 TnE PROPERTY RIGHTS OF dollars, payable (state the times of payment). The premises above men- tioned, or any part thereof, shall not be let or underlet without the written consent of the landlord, under penalty of forfeiture and damages ; nor shall the same be used or occupied for any business deemed extra hazardous, on account of fire, without the like consent, under the like penalty. Given under my hand and seal, jiie day of 18 (Signature.") (Seal.) (Witnesses.) This is to certify. That I have hired and taken from (name of lessor), (describe the premises in the same way as in the preceding part) , for the term of . from the day of 18 at the rent of dollars, payable And I hereby promise to make punctual payment of the reht in manner aforesaid, and to quit and surrender the premises, at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted, and engage not to let or underlet the whole or any part of the said premises, without the written consent of the landlord, under the penalty of forfeiture and damages; and also not to use or occupy the said premises for any business deemed extra hazardous, on account of fire, without the like consent, under the like penalty. Given under my hand and seal, the day of 18 (Signature.) (Seal.) (Witnesses.) In consideration of the letting of the premises above-described, and for the sum of one dollar, I do hereby become surety for the punctual payment of the rent, and performance of the covenants, in the above- written agreement mentioned, to be paid and performed by (name of lessee) , and if any default shall be made therein, I do hereby promise and agree to pay unto (name of lessor) such sum or sums of money as will be suflS- cient to make up such deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of non-payment, or proof of demand being made. Given under my hand and seal, the day of 18 (Signature.) (Seal.) (Witnesses.) (83.) A LEASE OF CITf PROPERTY, IN USE m ST. LOUIS. This indenture. Made the day of in the year of our Lord eighteen hundred and sixty- between (name and residence of the lessor), of the first part, and (name and residence of lessee), of the second part, witnesseth, That the said party of the first part, in consideration of the rents, covenants, and stipulations hereinafter men- tioned, and hereby agreed to be paid, kept, and performed by the said party of the second part, hik executors, administrators, and assigns, hath leased, A CITIZEN OF THE UNITED STATES. 395 and by these presents doth lease, to the said party of the second part, the following-described premises (here describe the home, as of brick or stone, number of stories, and number in the block) , in block No. in the city of St. Louis, to commence on the day of 186 for and during the term of at the annual rent of payable in four equal quarterly payments, beginning three months from the date hereof. Any failure to pay each payment of rent when due, to produce a forfeiture of this lease, if so determined by said lessor or his successors. The lease of said tenement or any part of it is not assignable, nor is said tenement or any part of it to be underlet, without the written consent of said lessor, under penalty of forfeiture. And it is hereby covenanted, that, at the expiration of this lease, the said tenement and premises are to be surrendered to said lessor, his heirs, assigns, or successors, in the condition received, only excepting its natural wear and decay, or the effects of accidental fire. All repairs deemed necessary by said lessee to be made at Tiis expense. All fixtures shall be bound for the rent. The said lessee, and all holding under him, hereby engaging to pay the rent above reserved, and double rent for every day when he or any one else in his name shall hold on to the whole or any part of said tenement, after the expiration of this lease, or of its forfeiture for non-payment of rent, &c. This tenement and premises to be kept free of any nuisance in or adjacent thereto, at the expense of the said lessee. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) (Witness.) (84) WHAT IS CALLED A COUNTRY LEASE, IN USE IN THE WESTEEK STATES. This indenture. Made this day of in the year of our Lord one thousand eight hundred and between (name of lessor) of the of in the county of and State of party of the first part, and (name and residence of lessee), party of the second part, witnesseth. That the said party of the first part, for and in consideration of the covenants and agreements hereinafter men- tioned, to be kept and performed by the said party of the second part, his executors, administrators, and assigns, has demised and leased to the said party of the second part all those premises situate, lying, and being in the township of county of State of known and described as follows, to wit (describe the premises in such way as to identify them perfectly by situation, metes, and bounds, or otherwise). To HAVE AND TO HOLD the Said above-described premises, with the appurtenances, unto the said party of the second part, and his executors, administrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and for and during, and until the day of in the year of our Lord one thousand eight hundred and paying rent therefor aa hereafter stated. 396 THE PROPERTY RIGHTS OF And the said party of the second part, in consideration of the leasing of the premises aforesaid, hy the said party of the first part to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of the first part, as rent for the said demised premises, the sum of dollars, annual rent, payable quarterly, in four equal quarterly payments, the first payment to be due and made inthree months from the date of this lease, payable at the [Jiere state the place where tlie rent should he paid). And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease mentioned he will yield up the said demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident and ordinary wear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereto. It is expressly trNDEKSTOOD AND AGREED by and between the par- ties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid, on the day and at the place of payment, whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as in his or their first and former estate ; and it shall be the duty of the said party of the second part, his executors, administrators, or assigns, to be and appear at the said place above specified, for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the-said party of the first part, or his agent or assigns ; or in his or their absence, if the said party of the second part shall offer to pay the same then and there, such offer shall prevent said forfeiture. And it is expressly understood that it shall not be necessary in any event for the party of the first part or his assigns to go on or near the said demised premises to demand said rent, or elsewhere than at the place aforesaid. And in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of the second part, in that case, hereby waives all legal rights which he now has or may have, to hold or retain any such property, under any exemption laws now in force in this State, A CITIZEN OF TEE UNITED STATES. 397 or in any other way. Meaning and intending hereby to give to the said party of the first part, and his heirs, executors, administrators, and as- signs, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent in manner aforesaid, any thing hereinbefore con- tained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, adminis- trators, and assigns, does hereby covenant, promise, and agree to surrender and deliver up said above-described premises and property peaceably to said pai'ty of the first part, or his heirs, executors, administrators, and assigns, immediately upon the determination of said term as aforesaid; and if he shall renrain in the possession of the same days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises, and shall be subject to all the conditions and provisions above-named, and to eviction and removal, forcibly or other- wise, with or without process of law, as above stated. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this indenture by the party of the first part. In testimony whereof. The said parties have hereunto set their hands and seals, the day and year first above written. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) In presence of (85.) A GROUND LEASE. This inbenture. Made this day of in the year . of our Lord one thousand eight hundred and sixty- between (name and residence of lessor), party of the first part, and (name and resi- dence of lessee), party of the second part, witnesseth, That the said party of the first part, for and in consideration of the covenants and agree- ments hereinafter mentioned, to be kept and performed by the party of the second part, hath demised and leased to the party of the second part all those premises situate in the of in the county of and State of known and described as follows, to wit (here give such description of the premises as shall identify them, and dis- tinguish them from any other). To HAVE AND TO HOLD the above-dcscrlbed premises, with the ap- purtenances, unto the party of the second part, from the day of in the year of our Lord one thousand eight hundred and for and during and until the And the party of the second part, in consideration of the leasing of the premises aforesaid, 398 THE PROPERTY RIGHTS OF does covenant and agree with the party of the first part to pay to the party of the first part, as rent for said demised premises, at the office of in the sum of (state the sum to he paid as annual rent'), in four equal quarterly payments, each of them the sum of dollars, to be paid on the first (or other) day of the months of (the four months in which the rent is payable), in each year (or describe otherwise the terms and times' of the payments as they may have been agreed upon); and also that the said party of the second part will pay, or cause to be paid, all water-rates, and aU taxes and assessments that may be laid, charged, or assessed on said demised premises,^pending the existenoe of this lease; or if at any time after any tax, assessment, or water-rate shall have become due or payable, the party of the second part, or his legal repre- sentatives, shall neglect to pay such water-rates, tax, or assessment, it may be lawful for the party of the first part to pay the same at any time there- after, and the amount of any and all such payments so made by the party of the first part shall be deemed and taken, and are hereby declared to be, so much additional and further rent, for the above-demised premises, due from and payable by the party of the second part; and maybe collected in the same manner, by distress or otherwise, as is hereinafter provided for the collection of other rents to grow due thereon. And it is expressly understood and agreed by the said party of the second part hereto, for himself and his heirs, executors, administrators, and assigns, that the whole amount of rent reserved and agreed to be paid for said above-demised premises, and each and every instalment thereof, shall be and is hereby declared to be a valid and first lien upon any and all buildings and improvements on said premises, or that may at any time be erected, placed, or put on said premises by said party of the second part, or his heirs, executors, administrators, or assigns, and upon his or their interest, in this lease, and the premises hereby demised; and that whenever and as often as any instalment of rent or any other amount above declared to be deemed and taken as rent shall become due and remain unpaid for one day after the same becomes due and payable, said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, may sell at public auction to the highest bidder, for cash, after having first given ten days' notice of the time and place of such sale in some newspaper published in all the buildings and im- provements on said premises, and all the right, title, and interest acquired by said party of the second part, under this lease, to the premises herein described, and as the attorney of said party of the second part — hereby irrevocably constituted — may make to the purchaser or purchasers thereof a suitable and proper transfer bill of sale or deed of the same, and out of the proceeds arising from such sale, after first paying all costs and expenses of such sale, including commissions and attorney's fees, retain to himself the whole amount due on said lease, up to the date of said sale, rendering the surplus (if any) to said party of the second part, his heirs, executors, administrators, agent, attorney, or assigns, which sale shall be a perpetual bar to and against all rights and equities of said party of tha second part, his heirs and assigns, in and to the property sold. A CITIZEN OF THE UNITED STATES. 399 And the party of the second part further covenants with the party of the first part, that, at the expiration of the time in this lease mentioned, he 'will yield up said demised premises to the party of the first part, in as good condition as when the same were entered upon by the party of the second part, loss by fire or inevitable accident and ordinary wear ex- cepted. It is further agreed by the party of the second part, that neither he nor his legal representatives wiU underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereunto, nor use or suffer them to be used for any purpose calculated to injure the reputation of the premises, or of the neigh- borhood, or to impair the value of the surrounding neighborhbod property, for present use or otherwise. It is expressly undkrstood and agreed, By and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid, on the day of payment, whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained to be kept by the party of the second part, his executors, administrators, or assigns, it shall and may be lawful for the party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and into the said demised premises, or any part thereof, either with or with- out process of law, to re-enter, and the party of the second part, or any other person or persons occupying in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as of his or their first and former estate; and to distrain for any rent that may be due thereon, upon any property belonging to the party of the second part, whether the same be exempt from execution and distress by law or not; and the party of the second part, in that case, hereby waives all legal rights which he now has, or may have, to hold or retain any such property under any exemption laws now in force in this State, or in any other way; meaning and intend- ing hereby to give the party of the first part, his heirs, executors, adminis- trators, agent, attorney, or assigns, a valid and first hen upon any and all the goods, chattels, or other property belonging to the party of the second part, as security for the payment of said rent, in manner aforesaid, any thing hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, as aforesaid, or in any other way, the party of the second part does hereby covenant and agree to surrender and deliver up said above-described prem- ises and property, peaceably, to the party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, immediately upon the determination of said term, as aforesaid; and if the said party of the second part or his legal representatives shall remain in possession of the same one day after notice of such default, or after the termination of this lease, in any of the ways above named, he or they shall be deemed guilty of a forcible detainer of the premises, and shall be subject to all the condi- 400 TEE PROPERTY RIGHTS OF tions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated. And it is further understood and agreed by the said party of the second part, that neither the right given in this lease, to said party of the first part, to collect the rent that may be due under the terms of this lease by sale, or any proceedings undter the same, shall in any way affect the right of said party of the first part to declare this lease void and the term hereby created ended, as above provided upon default made by said party of the second part. And the said party of the first part hereby waives his right to any notice from said party of the second part, of his election to declare this lease at an end, under any of its provisions, or any demand for the pay- ment of rent, or the possession of premises leased herein, but the simple fact of the non-payment of the rent reserved shall constitute a forcible entry and detainer as aforesaid. The said party of the second part further agrees not to remove any buildings or other improvements from said premises, without written con- sent of said party of the first part, and that the said second party shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this indenture, by the party of the first part. It is further understood and agreed, That all the conditions and cove- nants contained in this- lease shall be binding upon the heirs, executors, administrators, and assigns of the parties to these presents respectively: In testimony whereof, The said parties have hereunto set their hands and seals, the day and year first above written. (^Signature of lessor.) (Seal.") (Signature of lessee.) (Seal.) Signed, sealed, and delivered in presence of (86.) AN ASSIGNMENT OF LEASE, AND GRODND-EENT. This mDENTUEE, Made the day of in the year of our Lord one thousand eight hundred and between (name and residence of the assignor), party of the first part, and (name and resi- dence of the assignee), party of the second part, witnesseth, That the said party of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, unto him hi hand well and truly paid by the said party of the second part, at the time of the execution hereof, the receipt whereof is hereby acknowledged, by these presents does grant, bargain, sell, assign, release, and confirm unto the said party of the second part a certain indenture, made and executed on the day of in the year of our Lord eighteen hun- dred and whereby the said party of the first part leased to one (name of the lessee in the lease here assigned) certain preHiises therein A CITIZEN OF THE UNITED STATES. 401 described as follows (here copy the descHpdon of (he premises in (liat lease), reserving a certain rent, payable to said party of the first part; that is to say (here state the rent reserved in that lease), payable {here state the times and terms of payment), together mth the said rent, to the said party of the fif^t part, payable as aforesaid. Together -with all right and power of entry and distress and of re- eirtry, and all other the covenants, ways, means, and remedies for the recovery thereof, and all and singular the rights, incidents, and appurte- nances whatsoever thereunto belonging, and the reversions and remainders thereof, and all the estate, right, title, interest, property, claim, and demand whatsoever, of him the said party of the first part, or his legal representatives, either in law or equity, as well of, in, and to the said yearly rent or sum hereby granted and assigned, as also of, in, and to the said lot or piece of ground, with the appurtenances, for and out of which the same rent is issuing and payable. To have and to hold, receive and take, all and singular the hereditaments and premises hereby granted and assigned, with the rights, remedies, incidents, and appurtenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of him the said party of the second part, his heirs and assigns, for ever. And the said party of the first part, and his heirs, all and singular the hereditaments and premises hereby granted and assigned, with the rights, remedies, incidents, and appurtenances, unto ihe siaid party of the second part, and his heirs and assigns, against him the said party of the first part and his heirs, and against all and every other person and persons whomsoever, lawfully claiming or to claim by, from, or under him or them, or any of them, Shall and will warrant and for ever defend, by these presents. Ix WITNESS WHEREOF, The Said parties to these presents have hereunto interchangeably set their hands and seals, the day and year hereinbefore first written. {Signature of the assignor.) (Seal.) (Signature of the assignee.) (Seal.) Sealed and delivered in the presence of us, (Witnesses.) Keoeived the day of the date of the above indenture of the above- named the sum of being the full consideration money above mentioned. ( Signature of the assignor.) (Witness.) On the day of a.d. 18 before me, personally appeared the above-named (name of the assignor) , and in due form of law acknowledged the above indenture to be his free act and deed, and desired the same might be recorded as such. Witness my hand and seal, the day and year aforesaid. (Signature.) (Seal.) 29 402 THE PROPERTY RIGHTS OF (87.) A LEASE CONTAINING CHATTEL MORTGAGE COVENANTS, TO SECUKE THE RENT. This indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name and residence of lessor), of the first part, and (name and residence of the lessee), of the second part, witnesseth. That the said party of the- first part, for and in consideration of the covenants and agreements hereinafter men- tioned, to be kept and performed by the said party of the second part, his executors, administrators, and assigns, has demised and leased to the said party of the second part all those premises situate, lying, and being in the city of in the county of and in the State of known and described as follows, to wit (here descrilie the premises, as in Form 75). To HAVE AND TO HOLD the Said above-describcd premises, with the appurtenances, unto the said party of the second part, his executors, admin- istrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and for and during and until the day of in the year of our Lord one thousand eight hundred and And the said party of the second part, in consideration of the leasing of the premises aforesaid by the said party of the first part to the said party of the second part, does covenant and agree with the said party of the first part, his heirs, executors, admin- istrators, and assigns, to pay the said party of the first part, as rent for said demised premises, the sum of dollars, in four equal quarterly payments of dollars each (S ) , payable (here state the days when the rent should be paid), at the house (or office, or counting-room, or store) of said party of the first part, in said city of And it is further agreed by the said party of the second part, in con- sideration of the leasing of the premises aforesaid, that the said party of the second part shall and will pay, or cause to be paid, promptly, as soon as the same becomes due, all assessments for water-rents that may be levied upon said demised premises during the continuance of this lease, and save said premises and the party of the first part harmless from all charges and expenses connected with the supply of water to said premises. And the said party of the second part hereby covenants and agrees, in ease of default in the payment of any water-rent levied upon said premises during said term, to pay unto said party of the first part, as liquidated damages for such breach of covenant, double the sum of such rent so assessed upon said premises as aforesaid. And the said party of the second part further covenants with the said party of the first part, that he will keep said premises in a clean and healthy condition, in accordance with the ordinances of the city and directions of the proper authorities. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises or any part thereof, A CITIZEN OP THE UNITED STATES. 403 or assign this lease, -without the •written assent of the said party of the first part first had and obtained thereto. This indenture further witnesseth, That the said party of the second part, for and in consideration of the sum of (insert the whole sum. to be paid under the lease) dollars in hand paid, the receipt whereof is hereby acknowledged, does hereby grant, sell, convey, and confirm unto the said party of the first part, his heirs and assigns, all and singular the following- described goods and chattels, to -wit (here give a schedule or list of the articles, describing Ihem sufficiently). Together with all and singffei: the appurtenances thereunto belonging, or in any wise appertaining; to have and to hold the same unto the said party of the first part, his heirs, executors, administrators, and assigns, to his and their sole use for ever. And the said party of the second part, for himself and for his heirs, executors, and administrators, does covenant and agree with the said party of the first part, and his heirs, executors, admin- istrators, and assigns, that he is lawfully possessed of the said goods and chattels as of his own property; that the same are free from all incum- brances, and that he will, and his heirs, executors, and administrators shall, warrant and defend the same unto the said party of the first part, and his heirs, executors, administrators, and assigns, against the lawful claims and demands of all persons. Provided, nevertheless, That if the said party of the second part, or his heirs, executors, administrators, or assigns, shall well and truly pay, or cause to be paid, unto the said party of the first part, or his heirs, executors, administrators, or assigns, the said sum of dollars, rent, above reserved, punctually, and in the manner and at the times and place above mentioned, then and from thenceforth these presents, and every thing herein contained, shall cease, and be null and void. And provided, also. That it shall be lawful for the said party of the second part, his heirs, executors, and administrators, to retain possession of the said granted goods and chattels, and at his own expense to keep and to use and enjoy the same, until the said party of the second part, or his heirs, executors, administrators, or assigns, shall make default in the pay- ment of said rent above specified, at the time or times, ^lid in the manner hereinbefore contained; or unless the said party of the first part shall fear diminution, removal, or waste, for want of proper care; or if the said party of the second part shall sell or assign, or attempt to sell or assign, said goods and chattels, or any part thereof; or if any writ issued from any court shall be levied on any part of the above-described goods and chattels, — that then, and in any of the aforesaid cases, all of said sum of dollars, above reserved as rent for said demised premises, shall become due and payable ; and the said party of the first part, his heirs, executors, administrators, and assigns, agents, or attorneys, or any of them, may elect to take possession of the said property, and for that purpose may pursue the same or any part thereof, wherever it may be found, and also may enter any of the premises of the said party of the second part, with or without force or process of law, wherever the said goods and chattels may be or be supposed to be, and search for the same, and, if found, to take possession of and rem-ove, and sell and dispose, of said property, or so 404 TEE PROPERTY RIGHTS OF much thereof as may be necessary to pay the rent due, and the balance of rent for the whole unexpired terni, ^ijiether due or not due, at public auction, to the higheft bidder^ after giving ten days' notice of the time, place, and terms of skle, together ■with a description of the property to be sold, either -by publication in some newspaper in the city of or by similar notices posted up in three public places in the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said party of the £rst part, or his heirs, executors, administrators, or assigns, agents or attorneys, or any of theiig,.may elect; and, out of the money prising from such sale, to retaigmifi-st, all costs and charges for pursuing, searching, taking, removingjJ^eeping, storing, advertising, and selling of such property, goods, chat^E, and effects, and all prior liens, together with the rent due and the b|ffilnce of rent for the whole unexpired term, whether due or not due, rending the overplus of the money arising from such sale, and the remainder of said goods and chattels, if any there shall be, unto the said party of the second part, or his legal represent- atives. It is expressly understood and agreed, by apd between the parlies aforesaid, that if the rent above covenanted to be paid, or any part thereof, shall be behind or unpaid on the day of payment whereon the same ought to be paid as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and into the said demised premises, or any part thereof, either with or without process of law, to re-enter; and that said party of the second part, or any other person or persons occupying in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as in his or their first and former estate, and to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not; and the said party of the second part, in that case, hereby agrees to waive all legal right which he may have to iiold or retain any such property, under any exemption law now in force in this State, or in any other way. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, or his executors, administrators, or assigns, does hereby covenant and agree to surrender and deliver up said above-described premises and property peaceably to said party of the first part, or his heirs, executors, administrators, and assigns, immediately upon the determination of said term as aforesaid; and if he shall remahi in possession of the same after such default, or after the ter- mination of this lease in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above Btated. A CITIZEN OF TEE UNITED STATES. 405 In testimony •vthereop, The said parties have hereunto set their hands and seals, the day and ye^jc first above 'written. (Signature of lessor.") (Seal.) In presence of State of (Signature of lessee.) (Seal.) COXTNTY OP I, justice of "She Deace in and for said county, dd hereby certify that this lease and mortgage was duly acknowledged before me by the above-named (name of lessee), this day of a.d. 18 (Seal.) (88.) A BUILDING LEASE. This deed of lease, Made and entered into in duplicate this day of A.D. 186 between (name of lessor), of county of and State of party of the first part, and (name of lessee), ot county of and State of party of the second part: WITNESSETH, That the said party of the first part, in consideration of the covenants, agreements, and stipulations hereinafter mentioned, as well as the yearly rent of dollars, to be paid to him in four equal quarterly payments in each year (the first payment to be made on the day of A.D. 186 ), doth by these presents lease to the said party of the second part, for the term of years, which said term begins on the day of 186 the following- described lot of land, to wit (hei'e describe the premises, as in Form 75). The said party of the second part, for himself and his heirs, hereby covenants with said lessor and his heirs to pay said rent as aforesaid, and also to pay all city, county, and State taxes, and all other taxes and demands of every description, nature, or kind whatever, which may from time to time be legally required or demanded of said premises, whether general tax or special tax. Every failure, first, to pay the said rent, or any part thereof, when it is respectively made payable; or, second, to pay the said city, county, and State taxes, and all other taxes and demands, or any part thereof (legally required or demanded of said premises, within the year the same shall become due, assessed to either said lessor, his heirs or representatives, or to said lessee or his representatives) ; or, third, to keep and perform any of the other covenants, agreements, or stipulations herein mentioned, — shall make and create a forfeiture of this lease, and a termination of the term for which the above premises were let; and all the estate hereby conveyed shall be absolutely void, if so determined, at any day or time, however dis- tant, after such failure, by notice in writing to that eifect, given by said lessor, his heirs or assigns, to said lessee or his assigns; which said notice 406 THE PROPERTY RIGHTS OF may be served by posting a copy or duplicate of the same up at one of the most public places on said premises, or by delivering a copy or duplicate of such notice to said lessee or his assigns. This lease of said premises, or any part thereof, is not to be assigned, under penalty of forfeiture, ■without the written consent of said lessor, his heirs or assigns. At the expiration of this lease, the said premises to be delivered to said lessor, his heirs or assigns. The said lessee, and all ■who hold under him, hereby engage to pay double rent for every day they or any one else in their name shall hold on to the whole or any part of said premises after the expiration ' of' this lease, or after forfeiture thereof. The said lessee is, under penalty of forfeiture, bound to keep said premises free from any disorderly, bawdy, or gambhng establishments, dram-shops, tippling-shops, beer-houses, or any nuisances whatsoever. And in case of any forfeiture of this lease, the said lessor, his heirs and assigns, may forthwith take possession of said premises, with all the improvements thereon, and shall be entitled to the same, any custom, usage, or law to the contrary notwithstanding. All improvements erected on said premises by said lessee or his assigns, or by any one who may claim under them, are bound for the payment of each quarterly instalment of rent, and for the city, county, and State taxes, and all other taxes and demands as aforesaid, and for any arrears of rent or taxes; and in case of the punctual payment of the rent and taxes, as herein specified, the said lessee or his assigns is hereby author- ized to remove all such improvements (and no others), at the expiration of this lease, which he or any one who may claim under him may have erected on said premises during said term. In testimony whereof, The parties hereto have hereunto set their hands and seals to duplicate leases, the day and year aforesaid. (Signature of lessor.") (Seal.) (Signature of lessee.) (Seal.) In presence of (89.) A MINING LEASE. This indentukk. Made this day of in the year of our Lord one thousand eight hundred and between (name and residence of the. lessor), of the first part, and (name and residence of the 'lessee), of the second part, witnesseth, That the said party of the first part, for and in consideration of the covenants and agreements hereinafter con- tained on the part of the said pai'ty of the second part, and of one dollar in hand paid to the said party of the first part, the receipt whereof is hereby acknowledged, has granted and conveyed, and by these presents does grant and convey, to the said party of the second part, his heii's, exec- utors, administrators, and assigns, the right of entering in and upon the lands hereinafter described, for the purpose of searching for mineral and fossil substances, and of conducting mining and quarrying operations, to A CITIZEN OF THE UNITED STATES. 407 any extent he or they may deem advisable (but not to hold possession of any part of said lands for any other purpose ■whatsoever), paying for the site of buildings of any kind necessary thereto a reasonable rent. The said lands are situated (here state the situation of the premises leased, and describe them by metes and bounds, dimensions, and references to other boundaries, so as to distinguish them perfectly). And the said party of the second part hereby agrees that he or his heirs, executors, administrators, or assigns will pay or cause to be paid to the said party of the first part, his heirs or assigns, an annual rent of the amount of dollars, in four equal quarterly payments, payable severally on the following days (here state the days when the payments are to be made, or whatever other terms or times are agreed upon) , and also cove- nants that no damage shall be done to or upon said lands and premises, other than may be necessary in conducting said operations. And it is agreed and covenanted by and between the parties hereunto, that this lease shall be and remain in full force and effect (subject to the proviso herein- after stated) years, from the date hereof, and no longer. But the said parties of the first and the second part, each for themselves, their heirs, executors, administrators, and assigns, covenant and agree, and this indenture is made with this express proviso, that if no mineral or fossil substance be mined or quarried, as now contemplated by said parties, ■within the period of years, from the present time, then these presents, and everything contained herein, shall cease and be for ever null and void. In testimon"? whereof. The parties to these presents have hereunto set their hands and seals, the day and year first above ■written. ^ (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) Signed, sealed, and delivered in presence of (90.) A LEASE OF LAND SUPPOSED TO CONTAIN OIL, SALT, OE OTHER MINERALS. Articles op agreement. Made and concluded this day of A.D. 186 between (name of lessor), of the to^wnship of county of and State of party of the first part, and (name and residence of lessee) , party of the second part. Witnesseth, That the said party of the first part, for himself and his heirs, executors, administrators, and assigns, for and in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and for the further consideration hereinafter mentioned, and on account of covenants hereinafter contained, hereby leases to the said party of the second part, his heirs, executors, administrators, and assigns, the following-described piece or parcel of land, situated in the township of 'county of and State of bounded and described as follows (describe the premises, as in the preceding Form). The said land mora 408 TRE PROPERTY RIGHTS OF fully described in deed of conveyance by (name of the grantor to the lessor') to the said party of the first part, containing acres, more or less, for the purpose of boring, mining, and operating for oil, salt, and other minerals on said land, for the term of years. Said second parties to have the exclusive right to mine for oU, salt, and other minerals, on said land,' during the continuance of said term; to have the privilege of taking sufficient coal and wood for conducting said boring and mining operations, and timber for derricks and mill-frames and for refineries, and the right to erect all necessary buildings upon said premises for carrying on the business of boring for oil, and mining, refining, and storing away oil and other minerals; and to have the necessary roads to and from any well or wells that may be bored, or any mines; and to have possession whenever they shall be ready to commence operations. And in case successful in obtaining oil or other minerals, agree to deliver to the said party of the first part {here state the part or proportion which is to be given to the lessor) of all oil, salt, or other minerals obtained. Said party of the first part to find his own barrels, and remove the oil and other minerals belonging to him, as often as required by the second parties. And in case said second parties should not be successful in obtaining oil or other minerals, they shall have the right to remove all engines, tools, machinery, and buildings. And further, it is agreed that said second par- ties have the right to sub-lease said land for the purpose of boring for oil or other minerals; the said lessee or lessees being granted all the rights and privileges herein granted to the said party of the second part. Witness our hands and seals, this day of 186 (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) ( Witnesses.) Personally appeared before me, a justice of the peace in and for the township of within the county aforesaid and did acknowledge the signing and sealing of the above agreement to be act and deed. Given under my hand tjiis day of 186 Justice of the Peace. (91.) ^N ASSIGNMENT OF A LEASE. Know all men by these presents. That I (name and residence of assignor) , for and in consideration of the sum of dollars, lawful money of the United States, to me duly paid, by (name and residence of assignee) , have sold, and by these presents do grant, convey, assign, trans- fer, and set over, unto the said (name of assignee), a certain indenture of lease, bearing date the day of in the year one thou- sand eight hundred and made by (name of the lessor in the lease assigned) , whereby he leases to me the following-described premises (here describe the premises briefly) , with all and singular the premises therein A CITIZEN OF THE UNITED STATES. 409 mentioned and described, and the buildings thereon, together with the appurtenances. To HAVE AND, TO HOLD the Same unto the said (the name of the as- signee), a,nd his assigns, froxa the day of for and during all the rest, residue, and remainder yet to come of and in the term of years mentioned in the said indenture of lease, and all my rights and privileges in and under said lease; subject, nevertheless, to the rents, covenants, conditions, and provisions therein also mentioned. And I do hereby covenant, grant, promise, and agree, to and with the said (name of the assignee) , that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judg- ments, executions, back rents, taxes, assessments, and incumbrances whatsoever. In witness whereof, J have hereunto set my hand and seal, this day of one thousand eight hundred and (Signature.) (Seal,) Sealed and delivered in the presence of (92.) LANDLORD'S NOTICE TO QUIT FOB NON-PAYMENT OF RENT. SHOKT FORM, State of bs. a.d. 186 To (name of tenant). You being in possession of the following-de- scribed premises, which you occupy as my tenant (here describe the prem- ises sufficiently to identify them), in the city (or township) of and county aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid, in fourteen days from this date, according to law, your rent being due and unpaid. Hereof fail not, or I shall take a due course of law to eject you from the same. (Signature.) (Witness.) (93.) LANDLORD'S NOTICE TO QUIT FOR NON-PATMENT OF RENT. ANOTHER FORM. State of City of (date) , 18 YoxT are hereby notified to quit the premises situate (state the situation of the premises, giving totonship or city, and street and number), which I have leased to you, reserving rent, or pay and satisfy the rent due and in arrear, being $ which amount was due on the day of 18 and is hereby demanded (you having neglected or refused to pay the amount so reserved, as often as the same has grown due, according to the terms of our contract, and there being no goods on 410 THE PROPERTY RIGHTS OF the premises adequate to pay the rent ao reserved, except such articles as are exempt from levy and sale by the laws of this State) within days from the date hereof, or I shall proceed against you as the law directs. Yours, &c. (^Signature.") To (name of tenant). (94) LANDLORD'S NOTICE TO PAT KENT DUE, OR QUIT. State of ") [•ss. County op ) {Name of landlord), landlord, against (name of tenant), tenant. Take notice, That you are justly indebted unto me in the sum of for rent of (home, store, or other premises, describing them generally), from (date when the rent was due and payable), which you are required to pay on or before the expiration of three days from the day of the service of this notice, or surrender up the possession of the said premises to in default of which shall proceed under the provisions of law to recover the possession thereof. Dated this day of 18 (Nam£ of the landlord) , Landlord. To (name of the tenant), Tenant, in possession of the premises above specified. (95.) LANDLORD'S NOTICE TO LEATE AT END OF THE TERM. To (name and address of the tenant). Sir, — Being in the possession of a certain messuage or tenement, with the appurtenances, situate (describe the premises briefly), which said prem- ises were demised to you by me for a certain term, to wit, from the day of A.D. 18 until the day of A.D. 18 and which said term will terminate and expire on the day and year last aforesaid, I hereby give you notice that it is my desire to have again and repossess the said messuage or tenement, with the appurtenances, and I therefore do hereby require you to leave the same upon the expiration of the said hereinbefore mentioned term. Witness my hand, this day of city of A.D. 18 (Signature.) (Witness). (96.) LANDLORD'S NOTICE TO DETERMINE A TENANCY AT WILL. State of ss. a.d. 186 To (nam^ of tenant). You being in possession of the following- described premises, which you occupy as my tenant at will (describing them A CITIZEN OF TEE UNITED STATES. 4H sufficiently to identify them), in the (city and street), aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid (on such a day, slating here the day as far distant as is made necessary by the requisite length of notice), according to law, it being my intention to determine your ten- ancy at -will. Hereof fail not, or I shall take a due course of law to eject you from the same. (^Signature.y (Witness.') (97.) RECEIPT FOE KENT, IN USE IN NEW YORK. RentpayaMe The tenant mentioned below hereby agrees to pay the rent of the prem- ises occupied and used by on the first day of the term ; and engages to clean the entries, stairs, stoops, and privy thereof, weekly, in turn with other occupants, and not incumber the same with furniture, fuel, or rubbish, nor keep any hog, dog, or fowl, nor deposit ashes or garbage on said premises, nor in the sinks or privies, nor spht wood on the hearth, floor, or yard. New York, 186 Received from (name of tenant paying) , dollars, for months rent, from 18 to 18 for (stone, brick, or other) house, No. Street, in the city of New York. CHAPTER IX. GIFTS. Any person competent to transact ordinary business may give ■whatever he or she owns to any other person ; but a gift by a minor, an insane person, or a person under guardianship or under com- pulsion, would be voidable by the giver, or by a person acting for him or her by legal authority. It is essential to a gift that it goes into effect at once and com- pletely; and a promise to give cannot be enforced and has no legal validity, and may be revoked by the promisor, because it is entirely without consideration. This want of consideration is essential to a gift ; for even if the transaction be called a gift, if any considera^ tion which the law acknowledges as good enters into it, it is no longer a gift, but a sale or barter. 412 THE PROPERTY RIGHTS OF It is because there is no consideration for a g^ift that delivery is essential to its validity. But this delivery may be constructive, that is, it may be any such delivery as the nature of the thing and its actual position require : as a delivery of a part for the whole ; or of a key to the lock under which the property is ; or of a cumbrous mass, like a load of hay, for instance, by taking the donee (or person to whom the gift is made) near it, and pointing it out, with words of gift. A gift made and completed by actual delivery passes the prop- erty absolutely, and cannot be revoked by the giver; with the exception stated in the last paragraph of this page. A gift by an order on another party in possession is not complete until the order is presented and accepted ; until then it may be revoked. So a gift by a check or order or draft may be revoked before payment or a binding acceptance thereof. As a gift req[uires delivery to the donee, so it requires accept- ance by him. If made perfect by delivery and acceptance, it is irrevocable by the giver; but if it be prejudicial to existing creditors, it is, as a transfer without consideration, void as to them. It is also void as to subsequent creditoi's, if it be made under actual or expected insolvency, or with a fraudulent purpose as to future creditors. Gifts are sometimes made in expectation of death, or, in legal phrase, causa mortis. Such gifts are watched by the law with great care, because fraud is so easy in such cases, as the giver dies and can no longer deny or explain the transaction. Therefore, there must be evidence of a distinct delivery or transfer of possession at the time ; and this delivery must not be in the way of a trust, or for any such purpose, but as an outright gift. If it be by a note, the note cannot be enforced against the representatives of the deceased, because wholly without consideration. If it be by a check on a bank, the check is invalid, unless it be presented and paid before the death of the drawer. But a gift of bank-bills causa mortis is valid, if the bills are delivered by the giver. A gift causa mortis by an order on one in possession is not valid, unless it is presented and ac- cepted before the giver's death. And a gift causa mortis, even if accompanied by delivery, may be revoked by the giver, if he recovers and does not die. A CITIZEN OF THE UNITED STATES. 413 CHAPTER X. FiNDiJsra It is a general rule that the finder of lost property has a valid claim against all the world but the owner. The place in which, or the circumstances unrler which, it is found, generally make no exception to this rule ; but sometimes they do. In Massachu- setts, it was held that the finder of a pocket-book left by the owner in a shop could not hold it against the keeper of the shop in which it was found. But in England this case occurred : a man found on the floor of a shop a large parcel of bank-notes, and handed them to the shopkeeper for the owner. The finder soon after went abroad, and staid three years. On his retum,.inquiring of the shop- keeper, he learned that the bills had been advertised by him, and no one had claimed them. The finder then demanded them of the shopkeeper, ofiTering-to pay the cost of the advertisement. The shopkeeper refused to give them up, and the finder brought his action, and recovered judgment against the shopkeeper for the Avhole amount. A finder of property need not take charge of it; hut if he chooses to do so, he becomes what the law calls a depository, and is liable to the owner for any loss of or injury to the property from the finder's gross negligence. We think, although it is not quite certain, that a finder who takes care of property may charge the owner for necessary expense and labor in such care. A finder who refuses the goods to the true owner, knowing him to be the true owner, is liable to an action for their value ; but not if he refuses because he does not know him to be the true owner. If a specific reward has been oflfered for lost property, the finder may refuse to give it up without payment of the reward ; but it is not so if the ofier be general only, as of a liberal reward. If a person casts away and abandons any property as entirely worthless, the finder thereof may hold it against the original owner. A finder of property who knows the true owner, and conceals the property, or appropriates it to his own use, is guilty of theft. 414 THE PROPERTY RIGHTS OF CHAPTER XI. CONSIDEEATIOK. SECTION I. THK NEED OF A CONSIDERATION. It is an ancient and well-established rule of the common law prevailing in this country, that no promise can be enforced at law, unless it rests upon a sufficient consideration; by which word is meant a cause or reason for the promise. If it do not, it is called a naked bargain, and the promisor, even if he admits his promise, is under no legal obligation to perform a promise that he made ■without a consideration. The word "consideration," as it is used in this rale, has a peculiar and technical meaning. It denotes some substantial cause for the promise. This cause must be one of two things : either a benefit to the promisor, or else an injury or loss to the promisee sustained by him at the instance and request of the promisor. Thus, if A promises B to pay him a thousand dollars in three months, and even promises this in writing, the promise is worthless in law if A makes it as a merely voluntary promise, without a consideration. But if B, or anybody for him, gives A to-day a thousand dollars in goods or money, and this was the ground and cause of the promise, then it is enforceable. And if A got nothing for his promise, but B, at the request of A, gave the same goods or money to C, this would be an equally good consideration, and the promise to pay B would be equally valid in law. There are two exceptions to this rule. One is when the promise is made by a sealed instrument, or deed (every written instrument which is sealed is a deed). Here the law is said to imply a consid- eration ; the meaning of which is, that it does not require that any consideration should be proved. The seal itself is said to bo a con- sideration, or to import a consideration. The second exception relates to negotiable paper, and is an instance in which the law-merchant has materially qualified the common law. "We shall speak more fully of this exception when we treat of negotiable paper. A CITIZEN OF THE UNITED STATES. 415 SECTION II. WHAT IS A SUFFICIENT CONSIDERATIOIV. This requirement of a consideration sometimes operates harshly and unjustly, and permits promisors to break their word under cir- cumstances calling strongly for its fulfilment. Courts have been led by this to say that the consideration is sufficient if it be a substantial one, although it be not an adequate one. This is the unquestionable rule now, and it is sometimes carried very far. In one case, an American court refused to inquire into the adequacy of the consideration, — or whether it was equal to the promise made upon it, — and said, if there was the smallest spark of con- sideration it was enough, if the contract was fairly made with a full understanding of all the material facts. Still, there must be some consideration. The law detests litigation ; at least conrts say so ; and there- fore they consider any thing a sufficient consideration which arrests and suspends or terminates litigation. Thus the compromise, or forbearance, or mutual reference to arbitration, or any similar set- tlement of a suit or of a claim, is a good consideration for a prom- ise founded upon it. And it is no defence to a suit on this promise to show that the claim or suit thus disposed of would probably have been found to have no foundation or substance. If there be an honest claim, which he who advances it believes to be well grounded, and which within a rational possibility may be so, this is enough ; the court will not go on and try the validity of the claim or of the suit in order to test the validity of a promise which rests upon its settlement ; for the very purpose for which it favors this settlement is the avoidance of all necessity of investigating the claim by litigation. But, for reasons of public policy, no promise can be enforced of which the consideration was the discontinuance of criminal proceedings ; or any conduct by which public interests are banned, as, for example, the procurement of the passage of a . law by corrupt means. If any work or service is rendered to one, or for one, and he requested the same, it is a good consideration for a promise of payment; and if he makes no pi-omise, the law will imply the promise, that is, will suppose that he has made it, and will not per- mit him to deny it. The rule is the same as to payment for goods, or property of any kind, delivered to any one at his request. No person can make another his debtor against that other's will, by a voluntary offer of work, or service, or money, or goods. 416 THE PROPERTY RIGHTS OF But if that other accept what is thus offered, and retain the benefit of it, the law will, generally, imply or presume that it was offered at the request of that other party, and will also imply his pi'omise to pay for it, and will enforce the promise ; unless it is apparent, or is shown, that it was offered and received as a mere gift. A promise is a good considetation for a promise ; and it is one which frequently occurs in fact. If A says to B, " If you will deliver goods to C, I will pay for them," although there is no obligation upon B to deliver the goods, if he does deliver them he furnishes a consideration for the agree* ment, and may enforce it against A. An agreement by two or more parties to refer disputes or claims between them to arbitration is not binding upon any of the parties, unless all have entered into it. Tike principle that a promise ii a good consideration for a prom- ise has been sometimes applied to subscription-papers : all who sign them being held, on the ground that the promise of each is a good consideration for the promises of the rest. The law on the subject of these subscription-papers, and of all voluntary promises of con- tribution, is substantially this : no such promises are binding unless something is paid for them, or unless some party for whose benefit they are made, — and this party may be one or more of the suIt- scribers, — at the request, express or implied, of the promisors, and on the faith of the subscriptions, incurs actual expense or loss, or enters into valid contracts with other parties which will occasion expense or loss. As the objection to these promises, or the doubt about them, comes from the want of consideration, it may be cui-ed by a seal to each name, or by one seal which all the parties consider the seal of each. It is to be regretted that the law does not regard a merely moral consideration as a suflicient legal consideration ; but so it is. Thus, it has been held in this country that a note given by a father to a person who had given needful medicines, food, and shelter to his sick son, who was of full age, was void in law, because there was no legal consideration. And the same doctrine was applied where a son made a similar promise for food and support to his aged father. If, in either case, the promise had been made before the food or other articles were supplied, or even a request made before the supply, then the supply of the food and support would have been a good consideration. But they had all been supplied before any request or promise, and nothing was left but the moral obligation of a father to compensate one who had supported hi* son, or of a son to support his father; and this the law does not deem sufficient to make even an express promise enforceable at law. A CITIZEN OF THE UNITED STATES. 417 SECTION ni. AIT ILLEGAI. CONSIDERATION. If the whole of a consideration, or if an; part of the considera- tion of an entire and indivisible promise, be illegal, the promise founded upon it is void. Thjis, where a note was given in part for the compounding of penalties and suppressing of criminal prosecu- tions, it was held to be wholly void and uncollectible. And where a part of the consideration of a note was spirituous liquors sold by the payee in violation of a statute, such note was held to be wholly void^ But if the consideration consists of separable parts, and the promise consists of corresponding separable parts, which can be apportioned and applied, part to part, then each illegality will affect only the promise resting on it ; for in fact there are many considerations and many promises. If the consideration be entire and wholly legal, and the prom- ise consists of separable parts, one legal and the other illegal, the prpmisee can enforce that part which is legal, SECTION IV. AN IMPOSSIBLE CONSIDERATION. No contract or promise can be enforced by him who knew that the performance of it was wholly impossible ; and therefore a promise to do a thing which is obviously and certainly impossible is not a sufficient consideration in law to sustain a promise by the other party. But if one makes a promise, he cannot always defend himself when sued for non-performance by showing that per§)rmance was impossible; for it may be his own fault, or his personal misfortune, that he cannot perform it. He had no right to make such a promise, and must answer in damages ; or if he had a right to make it in the expectation, of performance, and this has become impossible subsequently, — as by loss of property, for example, — this is his misfortune, and no answer to a suit on the promise. There are, however, obviously promises or con- tracts, which, from their very nature, must be construed as if the promisor had said, " I will do so and so, if I can." For example, if A promises to work for B one year, at $20 a month, and at the end of six months is wholly disabled by sickness, he is not liable to an action by B for breach of his- contract ; and he can recover his pay for the time that he has spent in B's service, A mere want of money, which makes a pecuniary impossibility, is not regarded by the law as a legal impossibility. 418 THE PROPERTY RIGHTS OF SECTION V. FAILURE OP CONSlDERATIOrr. If a promise be made upon a consideration which is apparently valuable and sufficient, but which turns out to be nothing; or if the consideration was originally good, but becomes wholly valueless before part performance on either side, -— there is an end of the con- tract, and the promise cannot be enforced. And if money were paid on such a consideration, it can be recovered back. But only the sum paid can be so recovered, without any increase or addition as compensation -for the plaintiff's loss and disappointment, unless there were fraud or oppression. If the failure of consideration be partial only, leaving a sub- stantial, though far less valuable, consideration behind, this may still be a sufficient foundation for the promise, if that be' entire. The promisor may then be sued on the promise ; but he will then be entitled, by deduction, set-off, or in some other proper way, to due allowance or indemnity for whatever loss he may sustain as to the other parts of the bargain, or as to the whole transaction, from the partial failure of the consideration. Thus, if he promised so much money for work done in such a way or as the price of a thing to be made and sold to him, if no work is done or the thing is not made or sold, there is an end of the promise, because the considera- tion has wholly failed. But if the work was done, but not as it should have been, or the thing made and sold, but not what it should have been, and the promisor accepted the work or the thing, he may now show that the consideration for his promise has partially failed, and may have a proportionate reduction in his promise, or in the amount he must pay. And if the promise be itself separable into parts, and a distinct part or proportion of the consideration failed, to which part some distinct part or proportion of the promise could be applied, that part of the promise cannot be enforced, although the residtie of the promise may^be. If A agrees with B to work for Mm one year, or any stated time, for so much a month, or so much for the whole time, and, after working a part of the time, leaves B without good cause, it is the ancient and still prevailing rule that A can recover nothing in any form or way. It has, however, been held in New Hampshire, that A can still recover whatever his services are worth, B having the right to set-off or deduct the ainbunt of any damage he may have sustained from A's breach of the contract. This view seems just and reasonable, although it has not been supported by adjudica- tion in other States. If A agrees to sell to B five hundred barrels A CITIZEN OF THE UNITED STATES. 419 of flour at a certain price, and, after delivering one-half, refuses to deliver any more, B can certainly return that half, and pay A nothing. But if B chooses to retain that half, or if he has so dis- posed of or lost it that he cannot return it, he must pay what it is worth, deducting all that he*loses by the breach of the contract. And this case we think analogous to that of a broken contract of service ; but B's liability to pay, even in the case supposed as to goods, has been denied by some courts. A difficulty sometimes arises where A, at the reciuest of B, undertakes^ to do something for B for which he is to be paid a cer- tain price, and in doing it he departs materially from the directions of B and from his own undertaking. What are now the rights of the parties ? This question arises most frequently in building con- tracts, in which there is often some departure from the original undertaking. The general rules are these: If B assent to the alteration, it is the same thing as if it were a part of the original contract. He may assent expressly, by word or in writing; or constructively, by seeing the work, and approving it as it goes on, or being silent; for silence under such circumstances would gen- erally be equivalent to an approval. But if the change \)e one which B had a right, either from the nature of the change or the appear- ance of it, or A's language respecting it, to suppose would add nothing to the cost, then no promise to pay an increased price would be inferred from either an express or tacit approval. Generally, as we have seen, if A does or makes what B did not order or request, B can refuse to accept it, and, if he refuses, will not then be held to pay for it ; but if he accepts it, he must pay for it. This consequence results, however, only from a voluntary acceptance. For if A choose, without any request from B, to add something to B's house, or make some alteration in it, which being done, cannot be undone or taken away without detriment to the house, B may hold it, and yet not be liable to pay for it ; and A has no right to take it away, unless he can do so without inflicting any injury whatever on B. This rule would apply whether the addition or alteration were larger Or smaller. It is sometimes provided in building contracts that B shall pay for no alteration or addition unless previously ordered by him in writing. But if there be such provision, B. would be liable for any alteration or addition he ordered in any way, or voluntarily accepted after it was made, when he could have rejected it. So it is sometimes agreed that any additions or alterations shall be paid for at the same rate as the work contracted for. The law would imply this agreement if the parties did not make it expressly. 420 THE PUOPERTY, RIGHTS OF CHAPTER XII. AGEEEMENTS. SECTION I. THE LEGAI. MEANING OF AGREEMENT. ITo contract which the law will recognize and enforce exists until the parties to it have agreed upon the same thing in the same sense. Thus, in a case where the defendants by letter offered to the plaintiffs a certain quantity qf "good" barley, at a certain price, plaintiffs replied : " We accept your offer, expecting you will give us fine barley and fi^ll weight." The jury found that there was a distinction in the trade between the words "good" and " fine," and the court held that there was not a sufficient acceptance to sustain an action for non-delivery of the barley. So, where a person sent an order to a merchant for a particular quantity of goods on certain terms of credit, and the merchant sent a less quantity of goods and at a shorter credit, and the goods were lost by the way, it was held by the court that the merchant must bear the loss ; for there was no sale or contract between the parties. There is an apparent exception to this rule when, for example, A declares that he was not understood by B, or did not understand B, in a certain transaction, and that there is therefore no bargain between them ; and B replies by showing that the language used on both sides was explicit and unequivocal, and constituted a dis- tinct contract. Here B would prevail. The reason is, that the law presumes that every person means that which he distinctly says. If A had offered to sell B his horse for twenty dollars, and received the money, and then tendered to B his cow, on the ground that he was thinking only of his cmo, and used the word horse by mistake, this would not avoid his obligation, unless he could show that the mistake was known to B ; and then the bargain would be fraudulent on B's part. This would be an extreme case ; but difficult questions of this sort often arise. If A had agreed to sell, and had actually delivered, a cargo of shingles at " 3.25," supposing that he was to receive that price for a " bunch," which contains five hundred, and B supposed that he had bought them at that price for a " thousand," which view should prevail? The answer would be, first, that Lf A CITIZEN OF THE UNITED STATES. 421 there was, honestly and actually, a mutual mistake, there was no contract, and the shingles should be returned. But, secondly, if a jury should be satisfied, from the words used, from the usage pre- vailing where the bargain was made and known to the parties, or from other circumstances attending the bargain, that B knew that A was expecting that price for a bunch, B would have to pay it; and if they were satisfied that A knew that B supposed himself to be buying the shingles by the thousand, tten A could not reclaim the shingles, nor recover more than that price. In such a case it was held that unless the two parties had the same understanding as to what the sum of $3.25 paid for, there was no bargain. In construing a contract, the actnal and honest intention of the parties is always regarded as an important guide. But it must be their intention as expressed in the contract. If the parties, or either of them, show that a bargain was honestly but mistakenly made which was materially difierent from that intended to be made, it would be a good ground for declaring that there was no contract. MISTAKES. mistakes of fact in a contract can be corrected by the courts, but not mistakes of law, — no man being permitted to take advantage of a mistake of the law either to enforce a right or avoid an obliga- tion ; for it would be obviously, dangerous and unwise to encourage ignorance of the law, by permitting a party to profit, or to escape, by his ignorance. But the law which one is required at his peril to know is the law of his own country., Ignorance of the law of a foreign state is ignorance of fact. In this respect the several States of the Union are foreign to each other. Hence, money paid through ignorance or mistake of the law of another State may be recovered back. FKATJD. Fraud annuls all obligation and all contracts into which it enters, and the law relieves the party defrauded. If both of the parties act fraudulently, neither can take advantage of the fraud of the 'Other ; and if one acts fraudulently, he cannot set his own fi-aud aside for his own benefit. Thus, if one gives a fi-audulent bill of sale of property for the purpose of defrauding his creditors, he can- not set that bill aside and annul that sale, although his creditors who are injured by it may. 422 THE PROPERTY RIGHTS OF SECTION n. WHAT IS AN ASSENT. The most important application of the rule stated at the begin- ning of this chapter is the requirement that an acceptance of a proposition must he a simple and direct affirmative, in order to con- stitute a contract. For if the party receiving the proposition or offer accepts it on any condition, or with any change of its terms or provisions which is not altogether immaterial, it is no contract until the party making the offer consents to these modifications. Therefore, if a party offers to buy certain goods at a certain price, and directs how the goods shall be sent to him, and the owner accepts the offer and sends the goods as directed, and they are lost on the way, it is the buyer's loss, because the goods were his by the sale, which was completed when the offer was accepted. But if the seller accepts the offer, and in his acceptance makes any material modification of its terms, and then sends the goods, and they are lost, it is his loss now, because the contract of sale was not com- pleted. Nor will a voluntary compliance with the conditions and terms of a proposed contract always make it a contract obligatory on the other party, unless there have been an accession to, or an accept- ance of, the proposition itself. In general, if A says to B, If you will do this, I will do that ; and B instantly does what was pro- posed to him, — this doing so is an acceptance, and A is bound. But if the doing of the thing may be something else than an acceptance of the offer, or if the thing may be done for some other reason than to signify an acceptance or assent, there must be express acceptance also, or there is no bargain. SECTION in. OFFERS MADE ON TIME. It sometimes happens that one party makes another a certain offer, and gives him a certain time in which he may accept it. .The law on this subject was once somewhat uncertain, but may now be' considered as settled. It is this. If A makes an offer to B, which B at once accepts, there is a bargain. But it is not necessary that the acceptance should follow the offer instantaneously. B may take time to consider, and although A may expressly withdraw his offer at any time - befgj-ejracceptance, yet if he does not do so, B may accept within a reasonable time ; and if this is done, A cannot say, A CITIZEN OF THE UNITED STATES. 42S "I have changed my mind." What is a reasonable time must depend upon the circumstances of each case. If A when he makes the offer says to B that he may have a certain time wherein to accept it, and is paid by B for thus giving him time, he cannot withdraw the offer ; or if he withdraws it, for this breach of his contract, the other party, B, may have his action for damages. If A is not paid' for giving the time, A may then withdraw the offer at once, or whenever he pleases, provided B has not previously ac- cepted it. But if B has accepted the offer before the time which was given expired, and before the offer was withdrawn, then A is bound, although he gave the time voluntarily and without considera- tion. For his offer is to be regarded as a continuing offer during all the time given, unless it be withdrawn. A railroad company asked for the terms of certain land they thought they might wish to buy. The owner said, in a letter, they might have it at a certain price, if they took it within thirty days. After some twenty-five days the railroad company wrote accepting the offer. The owner says : N"o, I have altered my mind ; the land is worth more ; and I have a right to withdraw my offer, because you paid me nothing for the time of thirty days allowed you. But the court held that he was bound, because this was an offer continued through the thirty days, unless withdrawn. They said that the writing when made was without consideration, and did not therefore form a contract. It was then but an offer to contract ; and the party making the offer most undoubtedly might have withdrawn it at any time before accept- ance. But he could not withdraw the offer after it was accepted, for then the minds of the parties met, and the contract was com- plete, and no withdrawal could then be made, SECTION IV. A BAKGAIN BY CORRESPONDENCE. When a contract is made by correspondence, the question occnrs, At what time, or by what act, is the contract completed ? The law, as now settled in this country, may be stated thus : If A writes to B proposing to him a contract, this is a continued proposition or offer of A until it reaches B, and for such time afterwards as would give B a reasonable opportunity of accepting it. It may be with- drawn by A at any time before acceptance; but is not withdrawn in law until a notice of withdrawal reaches B. This is the impor- tant point. Thus, if A in Boston writes to B in New Orleans, offering him a certain price for one hundred bales of cotton ; and the next day alters his mind, and writes to B, withdrawing his 424 THE PROPERTY RIGHTS OF offer ; if the first letter reaches B before the second reaches him, although after the second was ■written and mailed, B has a right to accept the offer before he gets the letter withdrawing it, and by his acceptance he binds A. Bat if B delays his acceptance until the second letter reaches him, the offer is then effectually withdrawn. It is a sufficient acceptance if B writes' to A declaring his accept- ance, and puts his letter into the post-office. It seems how quite clear that as soon as the letter leaves the post-office, or is beyond the reach of the writer, the acceptance is complete. That is, on the 5th of May, A in Boston writes to B in New Orleans, offering to buy certain goods there at a certain price. On the 8th of May, A writes that he has altered Ms mind, and cannot give so much, and mails the letter. On the 14th of May, B in New Orleans receives the first letter, and the next day, the 15th, answers it, saying that he accepts the offer, and mails his letter. On the 17th, he receives the second letter of A withdrawing the offer. Nevertheless the bargain is complete and the goods are sold. But if B had kept his letter of acceptance by him until he had received A's letteir of withdrawal, he could not then have put his letter into the mail and bound A by his acceptance. The party making the offer by letter is not hound to use the same means for withdrawing it which he uses for making it ; be- cause any withdrawal, however made, terminates the offer, if only it reaches the other party before his acceptance. Thus, if A in the case just supposed, a week after he has sent his offer by letter, telegraphs a withdrawal to B, and this withdrawal reaches him before he accepts the offer, this withdrawal would be effectual. So if he sent his offer by letter to England, in a sailing ship, and a fort- night after sent a revocation in a steamer, or by telegraph, if this last arrives before the first arrived and was accepted, it would be an effectual revocation. SECTION V. WHAT EVIDENCE MAY BE RECEIVED IN REFERENCE TO A VPRITTEN CONTRACT. If an agreement upon which a party relies be oral only, it must be proved by evidence. But if the contract be reduced to writing, it proves itself; and now no evidence whatever is receivable for the purpose of varying the contract or affecting its obligations. The reasons are obvious. The law prefers written to oral evidence, fi"om its greater precision and certainty, and because it is less open to fraud. And where parties have closed a negotiation and reduced A CITIZEN OF THE UNITED STATES. 425 the result to writing, it is presumed that they have -written all th6y intended^ to agree to, and, therefore, Wiat what is omitted was finally Srejected by them. But some evidence may al'vrays he necessary, and therefore admissible ; as evidence of the identity of the parties to the con- tract, or of the things which form its subject-matter. Quite often, neither the court nor the javy can triow \^hat person, or what thing, or what land, a contract relates to, Unless the parties agree in stating this, or evidence shows it. The rule on this subject is, that while no evidence is receivable to cofitradict or vary a writ- ten contract, evidence may be received to explain its meaning, and show what the contract is in feet. There are some obvious inferences from this rule. The first is, that as evidence is admissible only to explain the contract, if the contract needs no explanation, — that is, if it be by itself perfectly explicit and unambiguous,— evidence is inadmissible; because it is •wholly unnecessary, and can be offei'ed only to vary the meaning and force of the contract, and that is not permitted. Another, follo'v*'- ing from this, is, that if the evidence purports, under the name of explanation, to give to the contract a meaning which its words do not fairly bear, this is not permitted ; because such evidence would in fact make a new contract. A frequent use of oral evidence is to explain, by means of. per- sons experienced- in the particular subject of the contract, the mean- ing of technical or peculiar words and phi'ases ; and such witnesses 'are called experts, and are very freely admitted. It may be remarked, too, that a written receipt for money is not within the general rule as to written contracts, being always open not only to explanation, but even to conti'adiction, by extrinsic evidence. And this is true of the receipt part of any instrument. If a written instrument not only recites or acknbwledges the receiv- ing of money or goods, but contains also a contract or grant, such instrument, as to the contract or grant, is no more to be affected Tiy any evidence than if it contained no receipt ; but as to the receipt itself, it may be varied or contradicted in the same manner as if the instrument contained nothing else. Thus, if a deed recites that it ■was made in " consideration of ten thousand dollars, the receipt ■whereof is hereby acknowledged," the graUtbr may sue for the money, or any part of it, and prove that the amount was not paid ; for this affects only the 'receipt part of the deed. But he cannot say that the grant of the land was void because he never had his money, nor that any agreement the deed contained was void for such a reason ; because, if he proved that the money was not paid, and offered this evidence for the purpose of thus annulling hik 426 THE PROPERTY RIGHTS OF grant or agreement, he would be offering evidence to affect the other part of the deed-; and that he cannot do. A legal inference &om a written promise can no more be re- butted by evidence than if it were written. Thus, if A, by his note, promises to pay B a sum of money in sixty days, he cannot, when called upon, resist the claim by proving that B, when the note was made, agreed to wait ninety days ; and if A promise in 'writing to pay money, and no time is set, this is by force of law a promise to pay on demand ; and evidence is not receivable to show that a distant period was agreed upon. Generally speaking, all written instruments are construed and interpreted by the law according to the simple, customary, and natural meaning of the words used. It should be added, that when a contract is so obscure or uncer- tain that it must be set wholly aside, and regarded as no contract whatever, it can have no force or effect upon the rights or obliga- tions of the parties, but all of these are the same as if they had not made the contract. SECTION VI. CUSTOM OR USAGE. A custom or usage, which may be regarded as. appropriate to a contract, has often great weight in reference to it. This it may have, first, as to the construction or meaning of its words ; and next, as to the intention or understanding of the parties. The ground and reason for this influence of a custom is this : If it exist so widely and uniformly among such persons as make the contract, and for so long a time, that every one of them must be considered as knowing it, and acting with reference to it, then it ought to have the same force as if both parties expressly adopted it ; because each party has a right to think that the other acted upon it. Sometimes this is carried very far. In one English case, a man had agreed to leave in a certain rabbit warren ten thousand rabbits ^ and the other party was permitted to prove that, by the usage of that trade, a thousand-meant one hundred dozen, or twelve hundred. In an American case, a man agreed to pay a cai-penter twelve shil- lings a day for every man employed by him about a certain building ; the carpenter was permitted to prove that, by the usage of that trade, " a day " meant ten hours' work ; and as his men had worked twelve and a half, he was permitted to charge fifteen shillings, or for one and one-fourth days' work, for every day so spent. A CITIZEN OF THE UNITED STATES. 427 In these cases the custom affected the meaning of the words. But it also has the effect of words ; as if a merchant employed a broker to sell his ship, and nothing was said about terms, and the broker did something about it, and the ship was sold : if the broker could prove a universal and well-established custom of that place, that for doing what he did under the employment he waS entitled to full commissions, he would have them, as much as if they were expressly promised. Any custom will be regarded by the court which comes within the reason of the rule that makes a custom a part of the contract. It comes within the reason only when it is so far established, and so well known to the parties, that it must be supposed that their contract was made with reference to it. For this purpose, the cus- torh must be established and not casual, uniform and not varying, general and not personal, and known to all the parties. But the degree in which these characteristics must belong to the custom will depend in each case upon its peculiar circumstances. Let us suppose a contract for the making of an article which has not been made until within a dozen years, and only by a dozen persons. Words are used In this contract of which the meaning is to be ascertained ; and it is proved that these words have been used and understood in reference to this article, always, by all who have ever made it, in one way. Then this custom will be permitted to explain and inter- pret the words of the parties. But if the article had been made a hundred years or more, in many countries and by multitudes of persons, the evidence of this use of these words by a dozen persons in a dozen years might not be sufficient to give to this practice the force of custom. Other facts must be considered ; as how far the meaning sought to be put on the words by custom varies from their common mean- ing in the dictionary, or from general use ; and whether other makers of the article use these words in various senses, or use other words to express the alleged meaning. Because the main question is always this : Can it be said.that both parties nmst have used, or ought to have used, these words in this sense, and that each party had good reason to believe that the other party so used them ? Thus, when the brief but violent "Morns multicaulis" (or mulberry) speculation prevailed, a few years -ago, a man made a contract to sell and de- liver a certain number of the trees " a foot high ; " and the buyer was permitted to prove that, by the usage and custom of all who dealt in that article, the length was measured to the top of the ripe wood only, rejecting the green and immature top; and the "foot high " was to be so understood. 428 TBE PROPERTY RIGHTS OF "No custom, liowever, can He proved or permitted to influence tlie construction of a contract, or vary tlie rights of the parties, if the custom itself be illegal. I^or this would be to permit, or even oblige, parties to break the law, because others had broken it. Nor ^ould the courts sanction a custom which was in itself un- reasonable and oppressive. There was a vessel cast ashore on the coast of Virginia, and the master sold the cargo on the spot ; and on trial the jury found that he was authorized to do so by the usage there ; but the Supreme Court of Massachusetts, where the 'ship and cargo were insured, said that the usage was unreasonable, and they would not allow it. The Supreme Court of Pennsylvania in one case refused to allow a usage, as unreasonable, by which plasterers charged half the size of the windows at the price per 'square yard agreed on for the plastering of a house. lastly, no custom, however universal, or old, or known (unless it has actually become law), has any force whatever, if the parties see fit to exclude and refuse it by the words of their contract, or provide that the thing which the custom affects shall be done in a way dififerent from the custom. For a custom can never be set up against either the express agreement or the clear intentions of the parties. HOW OOITTEACTS OK AGEEEMENTS SHGITLD BE MADE. Every agreement should he written, ia,nd signed hy both parties, and witnessed, where this can be done ; although the law absolutely requires witnesses in very few cases, and in none of mere contract. It is prudent, however, to have them; for it is a rule of law that things which cannot be proved and things which do not exist are the same in the law. Every thing agreed upon should be written out distinctly, and care should be taken to say all that is meant, and jiist what is meant, and nothing else ; for, as above stated, it is a rule of law that no oral testimony shall control a written agreemeni, unless fraud can be proved. Against fraud nothing stands. rOEMS ANNEXED TO THIS CHAPTER. (98.) A general agreement, suflSeient for many purposes. (99.) A general agreement, as used in the Western States. (100.) A geheral contract for mechanics' work. (101.) An agreement for purchase and sale of land, in use in the Mid- dle States. (102.) An agreement for sale of land, in use in the Western States. A CITIZEN OF THE UNITED STATES. 429 (103.) An agreement for warranty deed, in use in the Western States. (104.) A contract to convey real estate, in use in the Middle States. (105.) An agreement for the purchase of an estate, in use in New Eng- land. • (106.) An agreement for the sale of an estate by private contract. (107.) An agreement to be signed by an auctioneer, after a sale by auction. (108.) An agreement to be signed by the purchaser, after a sale "by auction. (109.) An agreement to make an assignment of a lease. (110.) An agreement for making a quantity of manufactured articles. (111.) An agreement between a trader and a book-keeper. (112.) An agreement for damages in laying out or altering a road. (113.) An agreement between a person retiring from the active part of a business and another who is to conduct the same for their mutual benefit. (114.) A brief building contract. (98.) A GENERAL AGREEMENT, SUFFICIENT FOR MANY PURPOSES. MUTUAL AGBEEMENT OF TWO. A. B., of {place of residence, and business or profession), and C. D., of (as before), have agreed together, at (place'), on (the day should always he named), and do hereby promise and agree to and with each other, as fol- lows: A. B., in consideration of the promises hereinafter made by C. D. (if there are any such promises) , and of (here state any other consideration which A. B. has), promises and agrees to and with C. D., that (here set forth, as above directed, the whole of what A. B. undertakes to do). And C. D., in consideration (set forth consideration and promise as before). Witness our hands, to two copies of this agreement ii^ierchangeably. A. B. CD. Signed and interchanged in presence of E. F. G. H. (99.) A GENERAL AGREEMENT, AS USED IN THE WESTERN. STATES. Articles op agreement, Made this day of in the year of our Lord one thousand eight hundred and sixty- between party of the first part, and party of the second part. 430 TEE PROPERTY RIGHTS OF WITNESSETH, That the said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the pay- ments and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part will And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of dollars, in the manner following : dollars cash in hand paid, the receipt whereof is hereby acknowledged, and the balance with interest at the rate of per centum per annum, payable annually. And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by sustained, and shall have the right to It is mutually agreed that all the covenants and agreements herein con- tained shall extend to and be obligatory upon the heirs, executors, admin- istrators, and assigns of the respective parties. In witness whkkeof. The parties to these presents have hereunto set their hands and seals, the day and year first above written. (^Signatures.') (^Seals.) Signed, sealed, and delivered in presence of (100.) GENERAL CONTRACT FOR MECHANICS' WORK. Contract, Made this day of a.d. 18 by and between of of the first part, and of of the second part, ^ WITNESSETH, That the party of the first part, for the consideration hereinafter mentioned, covenants and agrees with the party of the second part to perform in a faithful and workmanlike manner the following speci- fied work, viz. : And, in addition to the_ above, to become responsible for all materials delivered and receipted for; the work to be commenced and to be completed and delivered, free from all mechanic or other liens, on or before the day of And the party of the second part covenants and agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part the sum of dollars, as follows : A CITIZEN OF THE UNITED STATES. 431 And it is further mutually agreed by and between both parties, that in case of disagreement in reference to the performance of said work, all questions of disagreement shall be referred to and the award of said referees, or a majority of them, shall be binding and final on all parties. In witness whereof, We heremito set our hands and seals, on the day and year first above written. (^Signatures.') (Seals.) Executed in presence of (101.) AK AGREEMENT FOE PURCHASE AND SALE OF LAND, IN USE IN THE MIDDLE STATES. Agreement, Made and concluded the day of A.D. 18 by and between of the State of of the first part, and of the State of of the second part: Wheeeas, The party of the second part hath agreed to purchase from the party of the first part, either on his own account or for whom it may concern, certain land in township county, and State of And it is agreed that the party of the second part shall have the right to divide and subdivide said land in such manner, and appropriate to his own use so much thereof, as he may see fit, giving and paying to the party of the first part the sum of dollars, on or before the day of a.d. 18 and reserving to his own use any amount for which the whole or any be sold -over the said dollars. And these articles further witness. That the party of the first part, for and in consideration of the premises and the sum of lawful money, to him paid by the party of the second part, at and before the execution hereof, doth covenant, promise, grant, and agree with the party of the second part, his heirs and assigns, upon sale of said lands being made by the party of the first part, to sufficiently grant, convey, and assure said lands, with the appurtenances, to the said party of the second part, or such person or persons as he may direct; and in default of the said party of the second part paying the amount hereinbefore specified at the time mentioned, then these articles are to be deemed and considered cancelled to all intents and purposes, the same as though they never had been made. In witness whereof, The parties hereto have hereunto set their hands and seals, the day and year first aforesaid. (Signatures.) (Seals.) Sealed and delivered in presence of 432 THE PROPERTY RIGHTS OP (102.) AIT AGREEMENT FOE SALE OF LAXD, IN USE IN THE WESTERN STATES. Articles OP AGKEEMBji^T, Made this , day of in the year one thousand eight hundred and sixty- between of the first part, and of the second part, WITNESSETH, That the party of the first pe^rt, at the request of the party of the second part, and in consideration of the money to be paid, and the covenants as herein expressed to be performed, by the party of the second part (the prompt performance of which payments and covenants being a condition precedent, and time being of the essence of said condi- tion), hereby agree to sell to the ,said party of the second part, all certain lot and parcel of laud, situate in county of and State of knovra and designated as follows, viz. : with the privileges and appurtenances thereto belonging. And the said party of the second part, in consideration of the premises, hereby agrees to pay the party of the first part, his or their executors, administrators, or assigns, in days, the sum of dollars, as follows, viz. : ■with interest at the rate of per cent per annum, from to be paid semi-annually in each year, on the whple sum from time to time remaining unpaid. And also that he will ■well and faithfully, in due season, pay, or cause-to be paid, all ordinary taxes assessed for revenue purposes upon said premises, or any part thereof, subsequent to the year 18 And also all other assessments ■which now are, or may be hereafter, charged or assessed upon or against said premises, or any part thereof. But in case the said party of the second part fail to pay any or all such taxes or assess- ments upon said premises or appurtenances, or any part thereof, ■whenever and as soon as the same shall become due and payable; and the party of the first part shall pay from time to time, or at any time, any or all such taxes or assessments, or cause the same to be paid, — the amount of any and all such payments so made by the party of the first part, with interest thereon from the date of payment, shall immediately thereupon become an additional consideration, and payment thereof shall be made by the party of the second part hereto, for the premises herein agreed to be conveyed. And the said party of the first part further covenants and agrees with the said party of the second part, that upon the faithful performance by said party of the second part of undertaking in his behalf, and of the payment of principal and interest of the sum above mentioned, in the manner specified, he the said party of the first part shall .and will, ■without delay, v^ell and faithfully execute, acknowledge, and deliver in. person, or by attorney duly authorized, to the party of the second part, heirs or assigns, a deed of conveyance of all the right, title, and interest of the party of the first part, of, in, and to the above-described A CITIZEN OF TEE UNITED STATES. 433 premises, •with the appurtenances, mth full covenants of warranty, also of waiver and release of all rights of the said party of the first part, resulting from the laws of this State pertaining to the exemption of homesteads. And it is mutually covenantjsd and agreed. By and between the parties hereto, that in case default shall be made in the payments of prin- cipal or interest at the time or any of the times above specified, for the payment thereof, and for days thereafter, this agreement, and all the preceding provisions hereof, shall be null and void, and no longer binding, at the option of said party of the first part, representatives or assigns; and all the payments which shall then have been made thereon, or in pursuance hereof, absolutely and for ever forfeited to the said party of the first part; or at the election of the said party of the first part, representatives and assigns, the covenants and liability of said party of the second part shall continue and remain obligatory upon the said party of the second part, and may be enforced, and the said consideration money, and every part thereof, with the annual interest as above specified, be col- lected, by proper proceedings in law or equity, from the said party of the second part, heirs, executors, administrators, or assigns. And it is further mutually covenanted and agreed. By and between the parties hereto, that in case of default in the payment stipulated to be made by the said party of the second part, or any part thereof, and the election of the party of the first part, representatives or assigns, to consider the foregoing contract of sale at an end, and prior payments forfeited, the said party of the second part, heirs, repre- sentatives, or assigns, who may have possession, or the right of possession, of said premises at the time of such default, or at any time thereafter, shall be considered, and are hereby agreed and declared to be, in l^w and equity, the tenant or tenants at will of said party of the first part, repre- sentatives and assigns, on a rent equal to an interest of ten per cent per annum on the whole sum of the purchase-money above specified, payable quarter-yearly in advance from the day of such default in payment of principal or interest. And after such default in payment, and election to consider the above contract of sale as void, the said party of the first part, representatives and assigns, shall and may have and exercise all the powers, rights, and remedies provided by law or equity to collect such rent, or to remove such tenant or tenants, the same as if the relation of landlord and tenant hereby declared were created by an original absolute lease for that purpose, on a special rent, payable quarterly on a tenure at will. And that in such case the said tenant or tenants shall and will pay, or cause to be paid, all taxes, assessments, ordinary and extraordinary, which may be laid or assessed on such premises or any part thereof, during the continuance of such tenancy; and will not permit or suffer any waste or damage to said premises or the appurtenances, but will keep and deliver up, on the termination of such tenancy, the said premises and appurte- nances, in as good order and repair (ordinary wear and decay, and unavoid- able injury by the elements, excepted) as they were in at the commencement of said tenancy. • In witness whereof. The party of the first part and the party of the second part, in own proper person, have hereunto 28 434 THE PROPERTY RIGHTS OF respectively set their hands and seals, on the day and year first above ■written. (Signatures.') {Seals.) Signed, sealed, and delivered in presence of (103.) AN AGREEMENT FOE ■WARRANTY; DEED, USED IN THE 'WESTEEN STATES. Articles op agreement, Made this day of in the year of our Lord one thousand eight hundred and sixty- bet^vreen party of the first part, and party of the second part, WITNESSETH, That said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payment and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part ■will convey and assure to the party of the second part, in fee-simple, clear of all incumbrances ■whatever, by a good and sufficient warranty deed, the following lot, piece, or parcel of ground, viz. : And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of dollars, in the manner following: dollars, cash in hand paid, the receipt whereof is hereby acknowledged, and the balance with interest at the rate of per centum per annum, payable annually, on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, or impositions that may be legally le^vied or imposed upon said land, subsequent to the year 18 And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in hqnidation of all damages by sustained, and shall have the right to re-enter and take possession of the premises aforesaid. It is mutually agreed that all the covenants and agreements herein con- tained shall extend to and be obligatory upon the heirs, executors, admin- istrators, and assigns of the respective parties. In witness whereof. The parties to these presents have hereunto set their hands and seals, the day and year first.above written. (Signatures.) (Seals.) Signed, sealed, and delivered in presence of A CITIZEN OF THE UNITED STATES. 435 (104). A CONTRACT TO CONVEY REAL ESTATE, IN USE IN THE MIDDLE STATES. This article of agreement, Made and entered into the day of one thousand eight hundred and between of the first part, and of the second part, WiTKESSETH, as foUows: The said party of the first part hereby agrees to sell unto the said party of the second part all that parcel of land situated, bounded, and described as follows. That is to say for the sum of to be paid by the said party of the second part, in manner and at the times hereinafter mentioned and covenanted, on the part of the said party of the second part. And the said party of the first part further agrees, that on the day of on receiving from the said party of the second part the sum of the said party of the first part shall and will, at at own proper cost and expense, execute and deliver to the said party of the second part, or to assigns, a proper deed of conveyance, duly acknowledged, for the conveying and assuring to them the fee-simple of the said premises, free from all incumbrances, ■which deed of conveyance shall contain a general warranty, and the usual full covenants. And the said party of the second part hereby agrees to purchase of the said party of the first part the premises above mentioned, at and for the price and sum above mentioned, and to pay to the said party of the first part the purchase-money therefor, in manner and at the times following, to wit: And it is further agreed by and between the parties to these presents, that the said party of the first part shall have and retain the possession of said premises, and be entitled to the rents and profits thereof until the day of when full possession of the same shall be delivered to the said party of the second part, by the said party of the first part. And it is understood and agreed, that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. And it is further hereby agreed, that in case the said party of the first part shall fail or refuse to execute and deliver a proper deed of conveyance in manner and at the time and place above specified for that purpose, pro- vided the party of the second part shall be ready to fulfil and perform the covenants then to be fulfilled on part; or in case the said party of the second part shall fail or refuse to pay the said sum of at the time and place as above agreed upon, provided the party of the first 436 TEE PROPERTY RIGHTS OF part shall be ready to deliver such deed of conveyance, as aforesaid, — then the party so failing shall and will pay to the other party, or assigns, the sum of dollars, •which sum is hereby declared fixed and agreed upon, as the liquidated amount of damages to be paid by the party so faiUng as aforesaid, for non-performance. (^Signatures.') (^Seals.} Signed, sealed, and delivered in presence of (105.) AN AGREEMENT FOE THE PURCHASE OF AN ESTATE, IN USE IN NEW ENGLAND. AKTICLE8 OF AGREEMENT, Had, made, concluded, and agreed upon this day of a. p. between of of the one part, and of of the other part. First, the said (seller), in consideration of the sum of to him paid by the said (buyer), at or before the sealing and delivery of these presents, and of tixe further sum of to be paid as hereinafter is mentioned, doth hereby for himself, his heirs, executors, and administra- tors, and every of them, covenant, promise, and agree, to and with the said his heirs, executors, and administrators, and every of them, by these presents, that he the said his heirs and assigns (and all and every other person and persons whatsoever claiming or to claim any right, title, or interest under him, or any other person or persons whatso- ever, of, in, or to the lands and premises hereinafter mentioned) , shall and will, at the proper costs and charges of the said his heirs and assigns (except fees to counsel) , on or before the day of next ensuing, by such conveyances, assurances, ways, and means in the law, as he the said his heirs and assigns, or his or their counsel, shall reasonably devise, advise, or require, well and sufficiently grant, sell, release, convey, and assure to the said and his heirs, or to whom he or they shall appoint or direct, all that situate now in the tenure or occupation of or his assigns, with covenants to be therein contained, that the said prem- ises, at the time of such conveyance, are free from all incumbrances and demands whatsoever (except ) and all other usual and reason- able covenants. In consideration whereof, the said for himself, his heii-s, executors, administrators, and assigns, doth" hereby covenant, promise, and agree, to and with the said his heirs, executors, and administrators, by these presents, that he the said his heirs, exec- utors, or administrators, or some of them, shall and will well and truly ,pay, or cause to be paid, unto the said his heirs, executors, or administrators, the aforesaid sum of at the time of executing the said conveyances. And for the true performance of all and every the covenants and agreements aforesaid, each of the said parties to these pres- ents doth hereby bind himself, his heirs, executors, and administrators, to the other of them, his Heirs, executors, administrators, and assigns, in the penal sum of A CITIZEN OF THE UNITED STATES. 437 In witness whereof, The said parties to these presents have here- unto set their hands and seals, the day and year first above written. (^Signatures.) (Seals.) Signed, sealed, and delivered in presence of An agreement for the sale of lands should always state the covenants, whether of general or special warranty, which it is intended that the contemplated conveyance shall contain. We give below some of the more common provisions which may be inserted in an agreement for the purchase of land. COVENANTS, PROVISOS, AND AGREEMENTS, WHICH MAT BE INSERTED IN THE FRECEDINO FORU. 1. Covenant that the vendor, before the purchase is completed, shaU not commit waste, or grant any new leases. And also that the said (the seller) shall not nor will, in the mean time, cut down any timber or trees, or commit any ^waste or spoil whatsoever, in or upon the premises, or any part thereof, nor shall or will grant any new leases of the premises, or any part thereof, without the privity or consent of the said (the luyer), or his heirs or assigns. 2. Another covenant, for the payment of the purchase-money. And the said (the buyer) doth hereby covenant and agree to and with the said (the seller), his heirs, executors, and administrators, that upon sealing and executing such conveyance and assurance of the said unto him and them as aforesaid, according to the true intent of these pres- ents, he the said his heirs, executors, or administrators, shall and vpill pay, or cause to be paid, unto the said his heirs, exec- utors, or administrators, the said sum of in full for the pur- chase pf the said premises. Or there may he an agreement to retain part of the purchase-money to pay off an incumbrance, as follows ; — And it is agreed between the said parties that the said shall or may retain out of the said purchase-money the sum of for the purpose of paying off the sum of secured by a mortgage on the said premises, given by the said to bearing date when the said sum shall become due by virtue of the said mortgage. 3. This agreement may be inserted. And it is agreed, that if the counsel of the said shall not approve of the title of the said to the said premises, this agree-: ment shall be void. 4. This proviso may he inserted. Provided' always, and it is hereby mutually covenanted and agreed, by and between the parties to these presents, for themselves and their re- spective hfeirs, in manner as follows, viz.: That in case, the counsel of the. 438 THE PROPERTY RIGHTS OF said {the buyer) shall not approve of the title of him the said (the seller) , to the said or in case (the buyer), on his view thereof (he not having ever viewed the same), will not proceed in the purchase thereof, and shall and do, within one mouth next after the date hereof, give notice, in writing, to the said (or to of ), that he will not purchase the said then and in either of the cases these presents shall be absolutely void; and that then he the said (the seller), his heirs, execu- tors, or administrators, shall and will, within six months now next ensu- ing, well and truly repay or cause to be repaid unto the said (the buyer), his heirs, executors, administrators, or assigns, the said sum of so by him now paid as aforesaid, together with legal interest for the same, from henceforth to be computed until payment thereof. 5. A provision in articles 6f purchase, in case of the delay or default of either party. that if by reason of any delay, neglect, or default, by or on the part of the said (the purchaser), or his heirs, or his or their counsel or agents, the said conveyances of the said estates and premises shall not be ready and tendered to the said (the vendor) , or his heirs, to be executed, on or before the said day of then and in such case the said his shall and will pay and allow to the said his interest for the said sum of at the rate of to be computed from the day of until the said (the principal sum) shall be paid as aforesaid; but if, by reason of any delay, neglect, or default, by or on the part of the said or any claiming under him, such conveyances as aforesaid shall not be executed on or before the said day of then and in such case no such interest as aforesaid shall be paid or allowed during the time of such delay of the said 6. An agreement that if a good title, ^c, cannot be made on, ^c, the premises shall stand as security for the money paid down, ^c. It is hereby further agreed and declared by and between all the said parties to these presents, and particularly the said (the vendors) do hereby agree and declare, that in case they cannot make out a good title to, and execute and perfect such conveyances and assurances of, the premises as aforesaid, on or before the day of now next ensuing, then the said and every part thereof, shall remain and be a security to the said (the purchaser), for securing to him, his the repayment of the said sum of now by him paid as aforesaid, at or upon the said day of now next ensuing, together with interest for the same after the rate of from henceforth in the mean time and until payment thereof, which interest in such case they the said (the purchasers) do hereby for themselves, severally and respec- tively, and for their several and respective heirs, promise and agree to pay accordingly, and then, also, in such case all such rents, as he the said (the purchaser) shall have received, by or out of the premises as aforesaid, shall be deemed and allowed by him in part of payment of the same (the principal purchase-money), and interest. A CITIZEN OF. THE UNITED STATES. 439 7. That if the other parties do not perform their covenants, the purchaser shall not be obliged to perform his. And it is mutually agreed and declared to be the true intent and mean- ing of these presents, that if it shall happen that any of them the said their heirs, shall neglect to perform his or their parts of the covenants and agreements herein contained, that then, and in any such case, the said his heirs, executors, and administra- tors, or any of them, shall not he hereby obliged to perform his and their covenants herein contained, or any of them, but shall, if he shall think fit, be absolutely discharged from the same. (106.) AH AGREEMENT FOR THE SALK OF AN ESTATE BY PRIVATE CONTRACT. Articles of agreement, Made this day of between of and of The said agrees to sell the said all that with the appurtenances, for the sum of and ■will, on or before the day of next, on the receipt of the said sum of at the charges of the said execute a proper con- veyance thereof, with a covenant of general warranty and against incum- brances, to the said and his heirs and assigns. And the said agrees, that, on the execution of such con- veyance, he will pay the said sum of to the said or his assigns. And it is further agreed, that the conveyance shall be prepared by and at the expense of the said to the approbation of the respective counsel of the said and and that all taxes and outgoings in respect of the premises in the mean time shall be paid by the said And it is agreed, that the said shall receive the rents and profits of the premises, from next, to his proper use. And it ia agreed, that if the said conveyance shall not be executed, and the purchase-money paid on or before the day of then the said shall pay interest for the same from the same day, unto the said . after the rate of per cent per annum. In witness whereof, (Signatures.) (Seals.) (107.) AN AGREEMENT TO BE SIGNED BY AN AUCTIONEER, AFTER A SALE BY AUCTION. I hereby acknowledge. That has been this day declared the highest bidder and purchaser of (describe the real estate), at the sum of and that he has paid into my hands the sum of as 440 THE PROPERTY RIGHTS OF a deposit, and in part payment of the purchase-money; and I hereby agree that the vendor shall in all respects fulfil the conditions of sale.* Witness my hand, {Signatures.) {Seals.) (108.) AN AGREEMENT TO BE SIGNED BY THE PUECHASEE, AFTEE A SALE BY AUCTION. I HEREBY ACKNOWLEDGE, That I have this day purchased by public auction all that (describe the estate) for the sum of and have paid into the hands of the sum of as a deposit and in part payment of the said purchase-money; and I hereby agree to pay the remaining sum of unto (the vendor), at on or before the day of and in all other respects, on my part, to fulfil the annexed conditions of sale. Witness my hand, this day of (Signatures.) (Seals.} (109.) AN AGREEMENT TO MAKE AN ASSIGNMENT OF A LEASE. Whereas (the lessor) hath, by his deed indented, dated demised unto the said (the lessee) all that to have and to hold to him the said his (reciting the lease) , as by the said deed indented more fully appears. Now the said for and in consid.. eration of dollars, doth hereby for himself (Ms heirs, Ifc), cove- nant, that he the said before the day of shall and will, at the costs and charges of (the assignee), his (heirs, S'c), by deed indented, assure, assign, and grant over to the said his (heirs, ^c), the said (the premises), and all his estate, right, title, and demand therein : To have and to hold to the said (the assignee), his (heirs, Sfc), during the residue of the said term of years then to come, of, in, and to the same, by virtue of the said recited inden- ture, and under the rents, covenants, and agreements therein specified. (Signatures.) (Seals.) (110.) AN AGREEMENT FOE MAKING A QUANTITY OF MANUFACTURED ARTICLES. Articles of agreement, Between (the buyer), of the one part, and of the other part. The said (the manufacturer), for the consideration hereinafter mentioned, doth covenant that he will, at his own charge, make for the said (describe 1 It would be well to have the conditions of sale annexed, and refer to them by saying hereunto annexed. A CITIZEN OF TEE UNITED STATES. 441 the articles to be made), of the same quality of materials and goodness as, and in aU other respects according to, a pattern agreed between the said parties, and deliver the same to the said at ■within months from the date hereof. And the said in consideration thereof, doth covenant to pay to the said at the rate of after months from the delivery of the said as aforesaid. And it is agreed, that if any of the said shall not be made agreeable to the said pattern, and for that reason shall be rejected by the said he the said shall take back such as shall so be refused, and deliver the said the like quantity of the goodness and make, according to the pattern aforesaid, In witness (^Signatures.) (Seals.) (111.) AGREEMENT BETWEEN A TRADER AND A BOOK-KEEPER. Articles of agreement. Between (the trader), of and (the book-keeper), of The said agrees that he will, during the term of ' years from the date hereof, dwell with the said and faithfully keep the books of accounts of the said and diligently serve the said in such other business as the said shall direct, and shall therein perform the reasonable directions of the said without disclosing the same, or any of his correspondence, or the secrets of his employment or business, to any per- son whatsoever; and shall not correspond with any person corresponding with the said «or use any traffic or dealing for himself, or any other person, without the consent of the said in writing. And the said further covenants, that he will, during the said term, keep true and perfect accounts for the said and will not em- bezzle, waste, or destroy any of the goods, moneys, or effects of the said or any of his correspondents ; and also that he the said will, from time to time, dm-ing the said term, upon request, make and give unto the said his a just and perfect accfiunt in writing of all money which he the said shall receive and pay out, and of all goods and commodities which he shall, at any time during the said term, receive in or deliver out upon the account of the said or any of his correspondents, or by the order of the said And also that he the said his will pay to the said his all such sums of money as shall be due upon the foot of every such account. And also that he the said will not deliver forth upon credit any of the goods, merchan- dise, or moneys of the said or any of his correspondents, to any person or persons whatsoever, without the express consent of the said And the said (the trader), for himself (and his heirs, §"c.), covenants that he will pay to the said (the book-keeper), in consideration of- the said ser- 442 THE PROPERTY RIGHTS OF vices, the yearly sum of in equal payments on the days following, viz., on and vfill, during the said term, provide for the said sufficient and suitable meat, drink, -washing, and lodging. Tn witness (^Signatures.') (Seals.") (112.) AGREEMENT FOB DAMAGES IN LAYING OUT OB ALTERING A ROAD. Whereas, A road was laid out on the day of a.d. 188 by and commissioners of highways of the town of in the county of and State of on the application of the requisite number of legal voters residing within three miles of said road, as follows : Commencing which road passes through the land of being known and described as follows, viz. : Now, therefore, it is hereby agreed between the said commissioners and the said that the damages sustained by the said by reason of the laying out and opening said road upon his land, hereinbefore described, be liquidated and agreed upon at dollars. In witness whereof, The said commissioners and the said have hereunto subscribed their names, this • day of A.D. 186 (Signatures.) Commissioners of Highways. (113.) AN AGREEMENT BETWEEN A PERSON WHO IS RETIRING EROM THE ACTRE PART OF A BUSINESS, AND ANOTHER WHO IS TO CONDUCT THE SAME FOR THEIR MUTUAL BENEFIT. Articles of agreement, Made, entered into, and concluded upon, this day of a.d. between of of the one part, and of of the other part : Whereas the said hath conducted and managed for some time past tlie trade or business of the said and in consideration of the atten- tion and assiduity of the said thereunto, the said is willing to continue the said in the management thereof, under the covenants, restrictions, and agreements hereinafter contained; and in consequence thereof, an inventory and appraisement hath been made and taken of the stock, and entered in two receipt-books, one of which is to remain in the custody of each of them, the said .parties to these presents, and is subscribed by both of them, and the value of the said stock in the whole appears to the amount of the sum of Now these presents witness, that for and in consideration of the covenants and agreements A CITIZEN OF THE UNITED STATES. 443 # - I I ■ ■ — ■■ — ^— I-...I...- — .1111 I ...^ hereinafter contained on the part of the said to be performed, the said for himself, his executors and administrators-, doth hereby covenant, promise, and agree, to and -with the said that it shall and may be lawful to and for the said from time to time, during the term of eleven years, to be computed from the day of the date of these presents, if they the said and shall jointly so long live, to trade with the said stock, and to manage and improve the same, in such manner as to the said under the direction of the said shall seem meet; upon trust, nevertheless, and to the intent and purpose that the said shall and do, by and out of the money which shall arise by sale of any part or parts of the said stock, buy such goods as shall be requisite to keep up and continue, the present quality and value thereof, and by and out of the profits which shall arise from the trade and dealing, in the first place yearly and every year, pay the whole rent of the said house and shop, and pay and discharge all taxes which now are, or shall hereafter be, assessed or imposed on him the said or the said on account of the said house and trade; and in the next place, to pay to him the said or his assigns, yearly and every year during the said term of eleven years, if they the said and shall so long live, one clear annuity 'or yearly sum of by equal half-yearly payments, on the day of and the day of without any deduction or abatement whatsoever, and subject thereto, to retain the residue and overplus of the profits which shall arise from his trade and deailing, to and for his own sole use and benefit, as a recompense and satisfaction for his care and trouble in the sale and management of the said stock. And the said in consideration of the premises, and of the covenant and agreement hereinbefore on the part of the said contained, doth for himself, his executors and administrators, covenant, declare, and agree that he the said shall and will, from time to time, and at all times, for and during the said term of eleven years, if they the said and shall so long jointly Uve, diligently apply himself to the care and management of the said stock, trade, and business, according to his best skill, abilities, and discretion, and apply and dispose of the money which shall arise from the sale thereof, and all the profits of his trade and dealings, to answer and discharge the trusts hereby reposed in him, in such manner as hereinbefore is directed, declared, or expressed. And also shall and will write true and perfect entries, in proper books of accounts, of all such goods as shall be sold, and of all moneys which shall be paid and received by him, and permit the same, from time to time, to be inspected by him the said or such other person or persons as he shall appoint. And further, that he the. said shall not nor wUl, at any time during the continuance of the said term of eleven years, buy or sell, or in any wise trade or deal in his own name, but in the name only of him the said upon the trusts aforesaid; nor do any act whatsoever, whereby the said stock, or any part thereof, may be attached, or taken in execution. And also that at Christmas next, and so at every succeeding Christmas during the said term of eleven years or oftener, if thereto 'required by the said he the said 444 THE PROPERTY RIGHTS OF shall and ■will take a full account in writing of the said stock, then remaiting in the said trade, and of the profits thereof, and deliver the same to the said in order to manifest to him a, true state thereof, and of his proceedings in the trade by him carried on therewith. And at the expiration, or other sooner determination, of the said term of eleven years, he the said his executors or administrators, shaE and will deliver up to him the said his executors or administra- tors, the stock then remaining, for his or their own use and benefit, to the value of the sum of losses by bad debts, decay of goods, and other inevitable casualties excepted. Witness our hands and seals, this day of in the year 18 {Signatures.") (Seals.") In presence of (114.) A BRIEF BUILDING CONTRACT. Contract for building made this day of one thousand eight hundred and by and between of in the county of and of in the ° county of builder . The said covenant and agrees to and with the said to make, erect, build, and finish, in a good, substantial, and workmanlike manner, npon situate said to be built agreeable to the draught, plans, explanations, or specifications, furuished or to be furnished to said by of good and substantial materials; and to be finished complete on or before the day of And said covenant and agrees to pay to said for the same dollars, as follows: Security against mechanics' or other lien is to be furnished by said prior to payment by said And for the performance of all and every the articles and agreements above mentioned, the said and do hereby bind themselves, their heirs, executors, and administrators, each to the other, in the penal sum of dollars, firmly by these presents. Ik witness whekeof, We, the said and have hereunto set our hands, the day and year first above written. {Signatures.) {Seals.) Executed and delivered in presence of Contracts for building are among those frequently made, and also among those which require the utmost care. A specification, stating and describing all the things which the parties desire and intend to have done, should always accompany the contract ; and it may be difficult for persons not accustomed to the- work tore- member and specify, and properly describe, all the things they A CITIZEN OF THE UNITED STATES. 445 propose to have in the building; but all these things should be accurately and precisely stated in the specification, as far as possi- ble ; for from omissions or errors of this kind, cases and questions are constantly arising. CHAPTER XIII. ASSIGNMENTS. The word " assign " nsually occnrs in almost all forms of transfer and conyeyance; but there are certain instruments to which the name of " assignment" is more particularly given. They are instru- ments by which other instruments or debts or obligations, as bonds, judgments, wages, and the like, are transferred. Sometimes they are written on the backs of, or elsewhere on the same paper with, the instruments to be transferred by the assignment. Some of these, as assignments of deeds of grant and conveyance, of mortgages, of leases, will be given in the chapters which J;reat of those topics. Here are given such forms as will enable one to make an assignment for any of the purposes for which assignments are usually made. FORMS ANNEXED TO TmS CHAPTEE. (115.) A brief form of an assignment, to be indorsed on a note, or any similar promise or agreement. (116.) A general assignment, •with a power of attorney. (117.) An assignment of a bond. (118.) An assignment of a bond, with a power of attorney, and a covenant. (119.) An assignment of a judgment, in the form of an indenture. (120.) An assignment of wages, with a power of attorney. (115.) BKIEF FOKM OF AN ASSIGNMENT, TO BE INDORSED ON A NOTE, OR ANY SIMILAR PROMISE OR AGREEMENT. I HEREBY, for value received, assign and transfer the withia written (or the above written) together with all my interest in, and all my rights imder, the same, to (name of the assignee'). (Signature.') 446 • THE PROPERTY RIGHTS OF (116.) A GENERAL ASSIGNMENT, WITH POWER OF ATTORNEY. Know all men by these presents, That I for value received, have sold, and by these presents do grant, assign, and convey unto (name of the assignee and description of the things assigned). To HAVE AND TO HOLD the Same unto the said executors, administrators, and assigns, for ever, to and for the use of hereby constituting and appointing my true and lawful attorney, irrevocable in my name, place, and stead, for the purposes aforesaid, to ask, demand, sue for, attach, levy, recover, and receive all such sum and sums of money which now are or may hereafter become due, owing, and payable for, or on account of, all or any of the accounts, dues, debts, and demands above assigned giving and granting unto the said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary, as fully, to all intents and pur- poses, as might or could do, if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that the said attorney or substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the day of one thousand eight hundred and (Signature.) (Seal.) Executed and delivered in the presence of (117.) ASSIGNMENT OF A BOND. Know all men by these presents. That in the here- unto annexed obligation named, for and in consideration of the sum of lawful money of the United States of America, unto well and truly paid by at the time of the execution hereof, the receipt whereof hereby acknowledge, have assigned, transferred, and set over, and by these presents do assign, transfer, and set over unto the said (assignee), his executors, administrators, and assigns, to and for his and their only proper use and behoof, the said hereunto annexed obli- gation, which is given and executed by to bearing date the day of . Anno Domini 18 to secure the payment of the sum of with lawful interest therein expressed, and all moneys, both principal and interest, thereon due and payable, or hereafter to grow due and payable, with the warrant of attorney to the said obligation annexed; together with all rights, remedies, incidents, and appurtcinances whatsoever thereunto belonging or in any wise apper- taining, and all right, title, and interest therein. A CITIZEN OF THE UNITED STATES. 447 In WITNESS WHEREOi", the Said have hereunto set hand and seal this day of Anno Domini one thousand eight hundred and Sealed and delivered in the presence of us, (^Signature.) (^Seal.) (118.) ASSIGNMENT OF A BOND, WITH POWER OF ATTORNEY, AND A COVENANT. Know all men by these presents, That of the first part, for and in consideration of the sum of lawful money of the United States of America, to in hand paid by of the second part, at or before the enseaUng and dehvery of these presents, the receipt whereof is hereby acknowledged, ha bargained, sold, and assigned, and by these presents do bargain, sell, and assign, unto the said party of the second part, executors, administrators, and assigns, a certain written bond or obligation, and conditions thereof, bearing date the day of one thousand eight hundred and executed by and all sum and sums of money due and to grow due thereon; and the said party of the first part do covenant with the said party of the second part, that there is now due on the said bond or obligation, according to the conditions thereof, for principal and interest, the sum of and do hereby authorize the said party of the second part, in name to ask, demand, sue for, recover, receive, and enjoy the money due and that may gi'ow due thereon as aforesaid. In witness whereof, have hereunto set hand and seal the day of one thousand eight hundred and (^Signature.) (^Seal.') Sealed and delivered in the presence of (119.) ASSIGNMENT OF A JUDGMENT, IN THE FORM OF -AN INDENTURE. This indenture. Made the day of one thousand eight hundred and between {assignor), of the first part, and {assignee) , of the second part. Whereas, The said part of the first part one thousand eight hundred and recovered by judgment in the {name of court), against one the sum of Now THIS INDENTURE WITNESSETH, That the Said part of the first part, in consideration of to duly paid, ha sold, and by these presents do assign, transfer, and set over unto the said part of the second part, and assigns, the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on 448 TBE PROPERTY RIGHTS OF ■ any proceedings to be had thereupon. And the said part of the first part do hereby constitute and appoint the said part of the second part, and assigns, true and lawful attomey, irrerocable, with power of substitution and revocation for the use, and at the proper costs and charges of the said part of the second part, to ask, demand, and receive, and to sue out executions, and take all lawful ways for the recovery of the money due or to become due on the said judgment; and on payment to acknowledge satisfaction or discharge the same. And attorneys one or more under for the purpose aforesaid, to make and substitute, and at pleasure to revoke; hereby ratifying and confirming all that said attorney or substitute shall lawfully do in the premises. And the said part of the first part do covenant that there is now due on the said judgment the sum of and that will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein, the said part of the second part saving the said part of the first part harmless of and from any costs in the premises. In testimony whereof. The part of the first part ha hereunto set hand and seal the day and year first above written. (^Siffnatures.") (5ea&.) Sealed and delivered in the presence of (120.) ASSIGN5IENT OF WAGES, WITH POWER OF ATT0RN1ET. Know all men by these presents. That I of in the county of in consideration of to me paid by of the receipt whereof I do hereby acknowledge, do hereby assign and transfer to said all claims and demands which I now have, and all which, at any time between the date hereof and the day of next, I may and shall have, against for all sums of money due, and for all sums of money and demand which, at any time between the date hereof and the said day of next, may and sha,ll become due to me, for services as To have and to hold the same to the said his executors, administrators, and assigns, for ever. And I do hereby constitute and appoint the said and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as I could if personally present. In witness whereof, I have set my hand and seal, this day of 18 {Signature.) (Seal.) Signed, sealed, and delivered in presence of A CITIZEN OF THE UNITED STATES. 449 CHAPTER XIV. BONDS. A bargain where botli parties make promises, and come under obligations, each to the other, may be made without seal, and would then be called an agreement. If made under seal, it would gener- ally be in the form of, and bear the name of, an indenture. If a promise by one only is made in writing, without a seal, it is a simple promise ; but if it be made with a seal, then it would gener- ally be in the form of, and bear the name of, a bond. The essentials of a bond, beside the seal, are only that one party should acknowledge himself "held, bound, and obliged" unto another party, to pay to him a sum of money ; and neither of the words " held " or " bound " or " obliged " are strictly necessary, although usual and proper: other words of the same meaning will have the same effect. In such a bond, the party bonnd is called the obligor, and the pai"ty to whom he is bound is called the obligee. The sum for which the obligor is bound is called the penal sum, or the penalty. Such a bond is simply an obligation to pay so much money. But a bond is not often given only for this purpose. It is usually intended to be, in fact, an obligation to do something else, on the penalty of paying so much money if it be not done. This something else may be any thing whatever which the obligor may contract to do. All this is contained in an addition, which is writ- ten on the same paper immediately after the bond itself; that is, after the words of obligation. And this is called the "condition" of the bond. It begins with saying, " This bond is on the condition following ; " or, " The condition of this bond (or obligation) is such (or as follows)," and then recites the things which the obligor has undertaken to do ; and then adds, that if all these things are fully done and performed, then the bond shall be void aud of no effect, and otherwise shall remain in full force. The meaning and effect of all this is, that if the obligor fails, in any respect, to do what the condition recites, then he is bound to pay the money he acknowledges himself, in the bond, bound to pay. But now the law comes in to mitigate the severity of this contract. And whatever be the sura which the obligor acknowledges himself, in the bond, bound to pay, he is held by the courts to pay to the obligee only that amount .which will be a complete indemnification 29 450 THE PROPERTY RIGHTS OF to him for the damage he has sustained by the failure of the obligor to do what the condition recites. For example ; suppose A B makes a bond to C D, acknowledg- ing himself bound to C D in the sum often thousand dollars. The condition recites that one E F has been hired by C D as his clerk, and that A B guarantees the good conduct of E F ; and if E F does all his duty honestly and faithfully, then the bond is void, and otherwise remains in full force. Then suppose E F cheats C D out of some money. A B is sued on the bond ; C D cannot recover fi-om him, in any event, more than the ten thousand dollars ; and he will in fact recover from him only so much of this as will make good to C D all the loss he has sustained by E F's misconducf. As the obligee can recover from the obligor only actual compen- sation for what he loses, it is usual, in practice, to make the penal sum in the bond large enough to cover all the loss that can happen, or as much as the obligor is willing to be responsible for. There need be no "consideration" alleged or asserted in the bond, or proved, because, in the language of the law, the seal is (or implies) a consideration. The following forms are those of bonds frequently given ; and it will be easy to frame from some one of them any bond that is wanted for other purposes. FORMS ANNEXED TO THIS CHAPTER. (121.) A simple bond, without condition. (122.) A bond for payment of money, with a condition to that effect, with a power of attorney to confess judgment annexed. (123.) A bond for conveyance of a parcel of land. (124.) A bond for a deed of land, with acknowledgment before a notary public. (125t) a bond in another form, for conveyance of land, with acknowl- edgment. (126.) A bond to a corporation for payment of money due for contribu- tion to capital stock, with a power of attorney to confess judgment. (121.) A SIMPLE BOND, 'WITHOUT CONDITION. Know all mrn by these presents, That I (Jhe ohligor), am held and firmly bound unto (the obligee), in the sum of lawful money of Uie United States of America, to be paid to the said or liis cer- A CITIZEN OF THE UNITED STATES. 451 tain attorney, or assigns : to -which payment well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed -with my seal. Dated the day of in the year of our Lord one thousand eight hundred and In testimony whereof, I have set my hand and seal to this instrument, on the day of in the year of our (Signature.) (Seal.) Lord eighteen hundred and (Witnesses). « Executed and delivered in presence of (122.) BOND FOE PAYMENT OF MONEY, WITH A CONDITION TO THAT EFFECT, WITH POWER OF ATTORNEY TO CONFESS JUDGMENT ANNEXED. Know all men by these presents. That held and firmly bound unto in the sum of lawful money of the United States of America, to be paid to the said or his certain attorney, executors, administrators, or assigns: to which payment well and truly to be made, heirs, executors, and administrators, firmly by these presents. Sealed with , seal . Dated the day of in the year of our Lord one thousand eight hundred and The condition of this obligation is such. That if the above bounden heirs, executors, administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above- named certain attorney, executors, administrators, or assigns, the just sum of dollars, without any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue. (Signature.) (Seal.) Sealed and delivered in the presence of To Esq., Attorney of the Court of Common Pleas, at in the count;/ of in the State of or to any other attorney of the said court, or of any other court, there or elsewhere. Whereas (the obligor), in and by a certain obligation, bearing even date herewith, do stand bound unto (the obligee), in the sum of lawful money of the United States of America, conditioned for the pay- ment of These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or else- where, in an action of debt, there or elsewhere brought or to be brought against me, or my heirs, executors, or administrators, at the suit of the said (the obligee), executors, administrators, or assigns, on the said obligation, as of any term or time past, present, or any other subsequent 452 THE PROPERTY RIGHTS OF term or time there or elsewhere to be held, and confess judgment there- upon against me, or my heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides costs of suit, in such manner as to you shall seem meet: and for your, or any of your so doing, this shall be your sufficient warrant. And I do hereby for myself, and for my heirs, executors, and administrators, remise, release, and for ever quitclaim unto the said {the obligee), or his Certain attorney, executors, administrators, and assigns, all and all man- ner of error and errors, misprisions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceed- ings thereon or thereto, or anywise touching or concerning the same. In witness whereof, have hereunto set hand and seal , the day of in the year of our Lord one thousand eight hundred and (Signature.') (Seal.') Sealed and delivered in the presence of (123.) BOND FOE CONVEYANCE OF A PARCEL OF LAND. Know all men by these phesents. That we, as principals, and as sureties, are holdeft and stand firmly bound unto in the sum of dollars, to the payment of which to the said or executors, administrators, or assigns, we hereby jointly and severally bind ourselves, om- heirs, executors, and administrators. The condition ofrthis obligation is such, that whereas the said obligors have agreed to sell and convey unto the said obligee a certain parcel of real estate, situated and bounded as follows, namely : The same to be conveyed by a good and sufficient (warranty or oilier') deed of the said obligors, conveying a good and clear title to the same, free from all incumbrances. And whereas, for such deed and conveyance it is agreed that the said obligee shall pay the sum of dollars, of which dbllars are to be paid in cash upon the delivery of said deed, and -the remainder by the note of the said obligee, bearing interest at per cent per annum, payable semi-annually, and secured by a — mortgage in the usual form upon the said premises, such note to be (describe the note) . Now, therefore, if the said obligors shall upon tender by the said obligee of the aforesaid cash, note , and mortgage at any time within from this date, deliver unto the said obligee a good and suffi- cient deed as aforesaid, then this obligation shall be void, otherwise it shall be and remain in full force and virtue. In witness whereof, We hereunto set our hands and seals, this day of A.D. 18 Signed ^nd sealed in presence of A CITIZEN OF THE UNITED STATES. 45i ^124.) BOND FOR A DEED OF LAND, WITH ACKNOWLEDGMENT BEFORE NOTARY PUBLIC. Know all men by these presents, That of the count; of and State of held and firmly bound to of in the sum of dollars, to be paid to said his executors, administrators, or assigns, to the payment whereof bind sel heirs, executors, and administrators, firmly b; these presents. Sealed with seal, and dated the day o ■ A.D. 186 The condition op this obligation is, That if the sail upon payment of dollars, and interest, by sail within years from this date, agreeably to note of even date herewith, shall convey to said am heirs, for ever, a certain tract of land, situated in the count] of and State of to wit: by a deed in common form duly executed and acknowledged and in the mean time shall permit said to occupy and improve said premises for own use, then this obligation shall be void, otherwise to remain in full force and effect. In tkstimony whereof, have hereunto set hand and seal the day and year first above written. {Signature.) (Seal] State op [-63. County op Be it remembered. That on this day, of eigh' teen hundred and before me, the undersigned, notary public it and for said county and State, duly commissioned and qualified, cam( who to be the same person whose name subscribed to the foregoing instrument of writing, as party thereto, anc acknowledged the same to be act and deed for th( purpose therein mentioned. ■ In testimony whereof, I have hereunto set my hand and affixed mj official seal, at my office in the city of the day and year lasl aforesaid. Notary/ Publin. (125.) BOND IN ANOTHER FORM, FOR CONVEYANCE OF LAND, WITH ACKNOWLEDGMENT. Know all men by these presents, That of in the county of and State of held and firmly bonne unto of in the county of and State oi . in the penal sum of dollars, for the payment o: 454 THE PROPERTY RIGHTS OF ■which sum, well and truly to be made to heirs, executors, and administrators, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, and dated this day of a.d. 18 The condition or. the above obligation is such. That whereas the said this day has given the said promissory note of even date herewith, promising to pay to the said INow, if, on payment of the said note being made on or before the time shall become due, and all taxes on the land hereinafter described having been paid by the said and no right of pre-emption having been established or claimed on the said land, or any part thereof, the said or his legal representatives shall, whenever thereunto afterwards requested, execute and deliver to the said or legal representatives, a good and sufficient deed, conveying to the (Jiere describe the land) , free and clear of all incumbrance then this obligation to be null and void, otherwise of full force and effect; it being distinctly understood and agreed by and between the parties hereto that the time of payment herein above fixed material and of the essence of this contract, and that in case .of failure therein the intervention of equity is for ever barred. (^Signatures.') (Seals.) Signed, sealed, and delivered in presence of State of ") [-88. County of ) I, in and for the said county, in the State aforesaid, do hereby certify that personally known to me as the same person whose name subscribed to the above bond for deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said bond as free and voluntary act, and for the use and purpose therein set forth. Given under my hand and seal, this day of A.D. 18 Notary Public. (126.) BOND TO OORPOKATION FOE PAYMENT OF MONET DUE FOE CONTRI- BUTION TO CAPITAL STOCK, WITH POWER OF ATTORNEY TO CON- FESS JUDGMENT. Know all men bt these presents. That held and firmly bound unto (name of the corporation) in the sum of lawful money of the United States of America, to be paid to aforesaid, their certain attorney, successors, or assigns. To which payment well and truly to be made, firmly by these presents. Sealed with seal . Dated the day of in the year of onr Lord one thousand eight hundred and A CITIZEN OF TEE UNITED STATES. 455 The condition of this obligation is such, That if the above bounden heirs, executors, and administrators, or any of them, shall and do well .and truly pay, or cause to be paid, imto the above-named their certain attorney, successors, or assigns, the just sum of such as abovesaid, at any time within years from the date hereof, together with lawful interest for the same, in like money, payable monthly, on the of each and every month hereafter, and shall also well and truly pay, or cause to be paid, unto' aforesaid, their successors or assigns, the sum of dollars, on the said of each and every month hereafter, as and for the monthly contribution on share of the capital stock of aforesaid, now owned by the said without any fraud or further delay; provided, however, and it is hereby expressly agreed, that if at any time default shall be made in the payment of the said principal money when due, or of the said interest, or the monthly con- tribution on said stock, for the space of after any payment thereof shall fall due, then and in such case the whole princi- pal debt aforesaid shall, at the option of aforesaid, their suc- cessors and assigns, immediately thereupon become due, payable, and recoverable, and payment of said principal sum and all interest thereon, as well as any contribution on said share of stock, then due, may be enforced and recovered at once, any thing hereinbefore contained to the contrary thereof notwithstanding. And the said for heirs, executors, administrators, and assigns, hereby expressly waive and relinquish unto aforesaid, their successors and assigns, all benefit that may accrue to by virtue of any and every law, made or to be made, to exempt the premises described in the indenture of mortgage herewith given, or of any other premises whatever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys hereby secured, or any part thereof, then the above obligation to be void, or else to be and remain in full force and virtue. (^Signatures. ^ (Seals.") Executed and delivered in presence of To Esquire, Attorney of the Court of Common Pleas at in the county of in the State of or to any other attorney, or to the prothonotary of the said court, or of any other court, there or elsewhere. Whekeas, in and by a certain obligation, bearing even date herewith, do stand bound unto in the sum of lawful money of the United States of America, conditioned for the pay- ment of the just sum of such as abovesaid, at any time within years from the date thereof, together with lawful interest for the same in like money, payable monthly, on the of each and every month thereafter, and should also well and truly pay or cause to be paid unto aforesaid, their successors or assigns, the sum of dollars, on the of each and every month there- i'oQ THE PROPERTY RIGHTS OF after, as and for the monthly contribution on share of the capital stock of aforesaid, now owned by the said without any fraud or further delay ; provided, however, and it is thereby expressly agreed, that if at any time default should be made in the pay- ment of the said principal money when due, or of the said interest, or the monthly contribution on said stock, for the space of after any payment thereof should fall due, then and in such case thfe whole principal debt aforesaid should, at the option of aforesaid, their successors and assigns, immediately thereupon become due, payable, and recovei-able, and payment of said principal sum, and all inter- est thereon, as well as any contribution on said share of stock then due, might be enforced and recovered at once, any thing there- inbefore contained to the contrary thereof notwithstanding. And the said heirs, executors, administrators, and assigns, thereby expressly waive and relinquish unto aforesaid, their successors and assigns, all benefit that might accrue to by virtue of any and every law made or to be made to exempt the premises described in the indenture of mortgage therewith given, or of any other premises whatever, from levy and sale under execution, *or any part of the proceeds arising from the sale thereof, from the payment of the moneys thereby secured, or any part thereof. These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or elsewhere, in an action of debt, there or elsewhere brought or to be brought, against heirs, executors, or administrators, at the suit of aforesaid, their successors or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term or time; there or elsewhere to be held, and confess or enter judgment thereupon against heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides costs of suit, in such manner as to you shall seem meet; and for your or any of your so doing this shall be your sufficient warrant. And heirs, executors, and administrators, remise, release, and for ever quitclaim unto aforesaid, their certain attorney, successors, and assigns, all and all manijer of error and errors, misprisions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or anywise touching or con- cerning the same. In witness whbreof, have hereunto set hand and seal the day of in the year of our Lord one thousand eight hundred and (Signatures.) (^Seals.) Sealed and delivered in presence of A ClTlZEtt OF TEE UNITED STATES. Alii CHAPTER XV. GUAEANTY. SECTION I. OF THE RIGHTS AND DUTIES OF A GUARANTOR. A gaarantor is one who is bound to another for the fulfilment of a promise, or of an engagement, made by a third party. This kind of contract is very common. Generally, it is not negotiable ; that is, not transferable so as to be enforced by the transferee as if it had been given to him by the guarantor. No special form or words are necessary to the contract of guaranty ; and if the word "guarantee" be used, and the whole instrument contains all the ieharacteristics of a note of hand, payable to order or bearer, then it is negotiable. Thus, in a case in New York, the instrument was as follows : " For and in consideration of thirty-one dollars and fifty bents received of B. F. Spencer, I hereby guarantee the payment and collection of the within note to him or bearer. Aubui-n, Sept. 25, 1837. (Signed) Thomas Burns." And it was held negotiable. What negotiable means will be more fully explained in the chapter On Notes of Hand and Bills of Exchange. The guaranty may be enforced, although the original debt can- not ; as, for example, the guaranty of the promise of a wife or an infant; and sometimes the guaranty of a debt is requested, and given, for the very reason that the debt is not enforceable at law. But, generally, the liability of the principal measures and limits the liability of the guarantor. And if the creditor agrees with the prin- cipal debtor that the debt shall be reduced or lessened in a certain proportion, the obligation of the guarantor is reduced by law in an equal proportion. A contract of guaranty is construed somewhat strictly. Thus, a guaranty of the notes of one does not extend to notes which he gives jointly with another. A guarantor who pays the debt Of the principal may demand from his creditor the securities he holds, although not an assign- ment of the debt itself or of the note or bond which declares the debt, for that is paid and discharged. And the creditor should not be permitted to resort to the guarantor, until he has collected as much as he can from these securities, or offers to transfer them to the guarantor, llnless the guaranty is by a sealed instrument, there must be a consideration to support it. If the original debt or obligation reist upon a good consideration, this will support the promise of guar- 458 THE PROPERTY RIGHTS OF anty, if this promise was made at the same time with or prior to the original debt. But if that debt or obligation be first incuri'ed and completed before the guaranty is given, there must be a new consideration for the promise to guarantee that debt, or the guar- anty is void. But the consideration need not pass irom him who receives the guaranty to him who gives it. Any benefit to him for whom the guaranty is given, or any injury to him who receives it, is a sufiicient consideration if the guaranty be given because of it. A guaranty is not binding unless it is accepted, and unless the guarantor has knowledge of this. But the law presumes this ac- ceptance in general, when the giving of the guaranty and any action on the faith of it by the party to whom it is given are simultane- ous. In New York, wherever the guaranty is absolute, notice of its acceptance is unnecessary, unless expressly or impliedly required by the offer of guaranty. But, generally, an offer to guarantee a future operation, especially if by letter, does not bind the oflerer, unless he has such notice of the acceptance of his offer as would give him a reasonable opportunity of making himself safe. A guarantor is often called a surety, and is generally so called in cases where the good conduct of a third person is guaranteed. The words " surety " and " guarantor " do not mean precisely the same thing, but they are often used as if they did. If the liability of the principal be materially varied by the act of the party guaranteed, without the consent of the guarantor, the guarantor or surety is discharged. Many interesting cases have arisen which involve this question. Thus, where a bond was given conditioned for the faithful performance of the duties of the office of deputy-collector of direct taxes for eight certain townships, and the instrument of appointment, referred to in the bond, was after- wards altered so as to extend to another township, without the con- sent of the surety, the Supreme Court of the United States held that the surety was discharged from his responsibility for moneys col- lected by his principal after the alteration. Again, in an English case, the facts were, that, in a bond by sureties for the careful atten- tion to business and the faithful discharge of the duties of an agent of a bank, it was provided " that he should have no other business of any kind, nor be connected in any shape with any trade, manu- facture, or mercantile copartnery, nor be agent of any individual or copartnery in any manner or way whatsoever, nor be security for any individual or copartnery in any manner- or way whatsoever." The bank subsequently, without the knowledge of the sureties, increased the salary of the agent, he undertaking to bear one-fourth part of all losses which might be incurred by his discounts. It was held that this was such an alteration of the contract, and of the A CITIZEN OF THE UNITED STATES. 459 liability of the agent, that the sureties were discharged, notwith- standing that the loss arose not from discounts, but from improper conduct of the agent. The guarantor is also discharged if the liability or obligation be renewed or extended by law. As if a bank, incorporated for twenty years, be renewed for ten more, and the officers and busi- ness of the bank go on without change : the original sureties of the cashier are not held beyond the first term. So a guaranty to a partnership is extinguished by a change among the members, although neither the name nor the business of the firm be changed. But a guaranty, by express agreement, may be made to continue over most changes of this kind. A specific guaranty, for one transaction which is not yet ex- hausted, is not revocable. If it be a continuing or a general guar- anty, it is revocable, unless an express agreement, founded on consideration, makes it otherwise. A creditor may give his debtor some accommodation or indul- gence, without thereby discharging his guarantor. It would seem just, however, that he should not be permitted to give him any indulgence which would materially prejudice the guarantor. Gen- erally, a guarantor may always pay a debt, and so acquire at once the right of proceeding against the party whose debt he has paid. On this ground, it has been held that where a surety requested the creditor to proceed against the principal debtor, and the creditor refused to do this, and afterwards the debtor became insolvent and the surety was without indemnity, still, the surety (or guarantor) was not discharged, because he might have paid the debt, and then sued the party whose debt he paid. In New York, it seems to be the law, that, if the surety requests the creditor to proceed against the principal debtor, and he refuses, and the principal debtor after- wards becomes insolvent, the surety will be discharged. This seems to be the better rule. If, by gross negligence, tlie creditor has lost his debt, and has deprived the surety of security or indem- nity, the surety must be discharged, unless he was equally negli- gent. If a creditor gives time to his debtor, by a binding agreement which will prevent a suit in the mean time, this undoubtedly dis- charges the guarantor (unless the surety consents to the delay), because it deprives him of his power of acquiring a right of pro- ceeding against the debtor, by paying the debt ; for the debtor can- not during that time be sued. If there be a failure on the part of the principal, and the guar- antor is looked to, he should have reasonable notice of this. And, generally, any notice would be reasonable which would be sufficient in fact to prevent his sufiering from the delay. And if there be no 460 THE PROPERTY RIGHTS OF notice, and the guarantor has beeii unharmed by the want of notiefe, he is not discharged. If a guaranty purport to be official, that is, if it be made by one who claims to hold a certain office, and to give the promise of guaranty only as such officer, and not personally, the general rule is, that he is not liable personally, provided he actually held that office and had a right to give the guaranty officially. But he would still be held personally if the promise made or the relations of the parties indicated that credit was given personally to the party promising, and not merely to him in his official capacity; or if he had no right to give the promise in his official capacity. A guaranty was given for the price of a cargo of iron ; and the buyer bargained with the seller to pay him more than the fair price, the excess to go towards an old debt. The guaranty was held to be altogether void, because fraudulent, and co^ld not be enforced even for the fair price. FOEMS ANNEXED TO THIS CHAPTEB. (127.) A guaranty to be indorsed on a note. (128.) A guaranty of a note, on a separate paper. (129.) A guaranty in another way. (130.) A letter of guaranty. (131.) A guaranty with collaterals, authorizing sales. (132.) A guaranty with collaterals, promising additional security or authorizing sale. (127.) GUARANTY TO BE INDORSED ON A NOTE. For value received, I guarantee the due payment of the within written note. (Date.') (Signature.) (128.) GUARANTY OF A NOTE ON SEPARATE PAPER. For value received, I guarantee the due payment of a promissory note, dated whereby promises to pay to dollars in months. (Date.) (Signature.) (129.) GUARANTY IN ANOTHER WAY. For value received, I guarantee that the within (note or hill, or that such a note or bill, describing it), will be collected and paid, if demanded in due course of law. (Date.) (Signature.) A CITIZEN OF THE UNITED STATES. 461 (130.) LETTER OF GUARANTY. Sir, — If you will sell to Mr. of the goodg he ■wishes to buy {or the goods may he described), to the amount of (this may be omitted if the guaranty is intended to be of any amount} , within year (^or days or months, or the time may be omitted if it is not intended to limit it), from the date hereof, I, for value received, hereby promise and guarantee that the price thereof shall be duly paid. ( This letter should also state on what terms the goods should be sold, as to credit, delivery, Ifc. , unless it is intended to leave all this to the buyer and seller.) (Date.) (Signature.) When goods or stocks or other securities are given as collateral security for borrowed money or any other debt, an instrument is sometimes given, the intention of which is to guarantee that the collaterals should be and remain sufficient to secure the indebted- ness. It may be in one of the following forms, as the bargain requires. These are sometimes called "margin guaranties," (131.) GUARANTY WITH COLLATERALS, AUTHORIZING SALE. Whereas, I (or we) have deposited with as collateral security for payment at maturity of the following (here describe the debt guaranteed). Now THIS WITNESSETH, That iu the event of the non-payment at maturity of any or all of these hereby authorize or assigns, to sell the above (the collaterals), at public or private sale, or at the brokers' board, without notice to and apply pro- ceeds to payment of said and all necessary expenses, holding responsible for any deficiency. In witness whereof, have hereunto set hand and seal , this day of one thousand eight hundred and (Signature, ) (Witness.) (13 \) GUARANTY WITH COLLATERALS, PROMISING ADDITIONAL SECURITY OR AUTHORIZING SALE. Hating borrowed this day of (the sum borrowed) , on the following collaterals (here describe the collaterals). I hereby agree, in case the market price of the said stock should fall at any time during the continuance of the loan to an amount insufficient 462 THE PROPERTY RIGHTS OF to cover the sum loaned, ■with per cent mai-gin added thereto, that in such event I will, on demand, deposit additional security to be approved by him, ■which shall be sufficient to keep the collaterals thus deposited, equal to a sum per cent above said loan, and so as often as said collaterals shall diminish ; and that, in default thereof, the said shall have povcer to sell at public or private sale, ■without notice, all or any of the said securities (as ■well as any others he may hold), to pay the amount of the said loan, ■with all interest and charges thereon, and for so doing I fully release him of all claims, actions, and causes thereof. SECTION II. THE STATUTE OF FRAUDS. We give this statute here, because a principal provision in it, and that for ■which it most frequently comes before the courts, and should be known to persons transacting business, relates to guar- anties. The English statute of frauds, so called, was passed in the 29th year of Charles II. (1677), for the purpose of preventing frauds and peijuries, by requiring in many cases written evidence of a con- tract. In nearly all our States a similar statute has been enacted. But no two of the statutes of the different States agree exactly in all their provisions. They do, however, agree substantially ; and ■we shall give in this chapter the prevailing and nearly universal rules for the construction and application of those parts of this statute, which are of the greatest importance in commercial trans- actions. The provisions ■which especially relate to business law are contained in the fourth and seventeenth sections. By the fourth section, it is enacted "that no action shall be brought -whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; or ■whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriages of another person ; or to charge any person upon any agreement made upon considera- tion of marriage ; or any contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof: unless the agreement, upon •which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." By the seventeenth section, it is enacted that " no contract for the sale of any goods, wares, and merchandises, for the price of A CITIZEN OF THE UNITED STATES. 463 £10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the samfej or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." The second and fifth clauses of the fourth section, and the whole of the seventeenth, relate to our present subject. The second clause prevents a merely oral guaranty from being enforced at law ; but if money be paid on one, it cannot be recovered back. A PEOinSE TO PAY THE DEBT OF ANOTHEB. A promise to pay the debt of another is said to he a collateral promise, and not an original promise. It is very often difficult to say whether the promise of one to pay for goods delivered to another is an original promise : as to pay for one's own goods, and then it need not be in writing ; or a promise to pay the debt, or guaranty the promise of him to whom the goods are delivered, and then it must be in writing. The question may always he said to he : To whom did the seller give, and was authorized to give, credit? This question the jury will decide, upon consideration of all the facts, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay for them, then the question is. Did this other promise to pay for them as for his own goods ? for then the promise need not be in writing. Or did he promise to pay for them as for the goods of the party receiving them? and then it is a promise to pay the debt of another, and must be in writing. If, on examina- tion of the books of the seller, it appears that he charged the goods to the party who received them, it will be difBcult, if not impossible, for the seller to maintain that he sold them to the other party. But if he charged them to this other, such an entry would be good evi- dence, and, if confirmed by circumstances, strong evidence that this party was the purchaser. But it cannot be conclusive ; for the party not receiving the goods may always prove, if he can, that he was not the buyer, and that he promised only as surety for the party who was the buyer ; and, consequently, that his promise cannot be en- forced if not in writing. And, in general, in detei-mining this ques- tion, the court will always look to the actual character of the transaction, and the intention of the parties. The courts, both in England and America, have often endeav- ored to illustrate this question. Thus, in an early English case, the 464 THE PROPERTY RIGHTS OF court said : " If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, ' If he does not pay you, 1 will,' this is a collateral undertaking, and void, without writing, by the statute of frauds. But if he says, ' Let him have the goods, I will be your paymaster,' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant." So, in a case in Maryland, the court said : " If B gives credit to C for goods sold and delivered to him, on the promise of A to ' see him paid,' or ' to pay him for them if C should not,' in that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a collateral undertak- ing to pay that debt [and must be in writing], he being only liable as a surety. But where the party undertaken for is under no lia- bility himself, the promise is an original undertaking of the party promising, and binding upon him without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, as if A says to him, ' Let C have goods to such an amount, and I will pay you,' and the credit is given to A, in that case, C being under no. liability, C cannot be sued for the price ; there is nothing to which the promise of A can be collateral ; but A being the immediate debtor, it is his original undertaking, and not a promise to answer ' for the debt of another,' and therefore need not be in writing." Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pui-pose of his own, his promise is not within the requirement of the statute, and can there- fore be enforced although not in writing, and although it may be in form a promise to pay the debt of another, and although the pei-formance of it may incidentally have the effect of extinguishing the liability of another. If an old debt is extinguished by a new promise, this promise is considered as an original one, and not within the requirement of the statute. If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt ; for although tJiat promise must be in writing, the other may be oral. XS AGREEMENT NOT TO BE PEKFORMED WITHIN A TEAK. Under the fifth clause in the fourth section it is held that an agreement which may be performed within the year is not affected by the statute, as the words, " that is not to be performed within A CITIZEN OF THE UNITED STATES. 465 one year," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the intervention of extraordinary circumstances, — although in point of fact its execution was ex- tended much beyond the year. So where one agreed orally, for one guinea, to give another a number of guineas on the day of his marriage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was there- foi'e bound by it. So, where one agreed orally never to go into the staging business in a certain place ; as this contract could last only while the promisor lived, and he might die within a year, he was held to be bound by it. TUB POEM AND SUBJECT-MATTEE OF THE A6EEEMENT. The "agreement" must be in writing; but generally, in this country, the writing need not be all on one piece of paper. For it is sufficient if on several pieces, as in several letters, which, however, relate to one and the same business, and may fairly be read together as the statement of one transaction. But it must appear from the papers that they are so connected. The " signature " may be in any part of the paper, — the beginning, middle, or end, — except in those of our States in which the statute has the word "subscribed" instead of "signed;" in which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient ; hence, a printed shop-bill, with the name of the seller as usual at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods. Shares in railroad companies, in manufacturing companies, and, generally, in all corporations and joint-stock companies, are "goods, wares, or merchandises," within the meaning of the statute in this country, and an agreement for their purchase and sale must there- fore be in writing. It may be further remarked, that the operation of the statute has been always limited to such contracts as have not been ex- ecuted in any substantial part, and therefore remain wholly execu- tory. For if they have been executed substantially in good part, they are binding, although only oral. In Massachusetts, the statute of &auds also provides (third sec- tion) that no action shall be brought to charge any person upon, or •by reason of, any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any othes 30 46G THE PROPERTY RIGHTS OF person, unless it be made in writing, and signed by the party to be charged. And there are provisions substantially similar to this in the statutes of Maine and Vermont. Instead of the " £10 " in the seventeenth section of the English statute, the sum mentioned in the statutes of frauds of the dif- ferent States is generally from thirty to fifty dollars. CHAPTER XVI. PAYMENT AND TENDEE. SECTION I. • HOW PAYMENT MAY BE MADE. The obligations which arise out of most mercantile contracts are to be satisfied by payment of money. The parties may always agree to any specific manner of payment, and then that becomes obligatory on the creditor as well as the debtor. As, by deducting the amount to be paid from a debt due to the debtor, either from the creditor or from any one else. Or the amount may be made, by agreement, payable by a bill or note. If the debt is to be paid by a bill or note, it must be such a one as is agreed upon, and this must be tendered by the debtor. But the word " note " or " bill " does not necessarily mean an " approved note " or " bill ; " and if this phrase be itself used, it means only a note or bill to which there is nq reasonable objection ; that is, one which ought to be approved. In the absence of any especial agreement, the only payment known to the law is by cash, which the debtor must pay when it is due, or tender to the creditor. The tender should, properly, be in cash, or in bills made a legal tender by law, and must be so if that is required; but a tender in good and current bank-bUls is sufficient, unless it be objected to because they are not money. Generally, if the tender be refused for any express and specific reason, the creditor cannot afterwards take advantage of any in- formality to which he did not object at the time of the tender. The tender may be of a larger sum than is due. But a tender of a larger sum, if made with a requirement of change or of the balance, is not good. Nor must it be nccompanied with a demand or condition that any instrument or document shall be delivered ; A CITIZEN OF TEE UNITED STATES. 467 nor that the sum tendered shall be received as all that is due ; nor that a receipt in full shall be given. But a simple receipt for so much money paid may be demanded. We have already seen that, if a receipt be given, it is only strong evidence of payment, but not conclusive. And even if it be " in full of all demands," it is still open to explanation or denial by evidence. A lawful tender, and payment of the money into court, is a good defence to an action for the debt. But the creditor may break down this defence by proving that, subsequently to the tender, he demanded the money of the debtor, and the debtor refused to give it. If a debtor tenders money to pay his debt, he must be always ready to pay that money if it be asked from him. If the buyer or debtor give, and the seller or creditor receive, a negotiable note or bill for the sura due, this is not anywhere ab- solute and conclusive payment. In Maine and in Massachusetts the law presumes that such note or bill is payment of the debt unless a contrary intention is shown. In nearly all the States of this Union but those two, and in the Supi-eme Court of the United States, it is not payment, unless the intention of the parties that it should be so is shown. In New York, it has been held that the debtor's own promissory note is not payment, even if it be intended or ex- pressly agreed that it should be. If a creditor, who receives from his debtor any bill or note, negotiates or sells it for value to a third party, without making himself liable, the bill or note was payment, although it be dishon- ored, because it has been good to the debtor, and he has received the avails of it ; and if the law did not hold that the bill had paid the debt, he could sue the original debt, and then he would have the value of the bill or payment twice. Not so, however, if he negotiates it in such a way that he is himself liable upon it ; for if he pays it, he loses what he sold it for, unless he can recover his debt from his debtor. * SECTION II. APPROPRIATION OF PAYMENT. If one who owes several debts to his creditor makes to Mm a general payment, it may be an important question to which of those debts this payment shall be appropriated : for some of them may be secured, and others not ; or some of them may carry interest, and others not ; or some of them be barred by the statute of limita- tions, and others not. There is no doubt that the payor may appropriate Ms payment, at the time of the payment, at his own pleasure. And Lf he does '468 THE PROPERTY RIGHTS OF not exercise this right, the receiver may, at the time of payment, make the appropriation. But if neither party does this at that time, and at a future period the question comes up as to which party may then make the appropriation, or, rather, how the law will then appropriate the payment, it is then the better and prevailing rule that, if the court can ascertain, either from the words used, or from the circumstances of the case, or from any usage, what was the intention and understanding of the parties at the time of the pay- mentj that intention will be carried into effect. And if this cannot be ascertained, then the court will direct such appropriation of the payment as will best protect the rights and interests of both parties, and do justice between them. And one reason for this conclusion would be, that the law would presume that this was the original intention of the parties. A very general rule, which would indeed be always adopted in the absence of especial reason to the contrary, is, to apply the payment first to the oldest debt, until that is satis- fied, and then go on applying the payment to the other debts in the order of their age. If A owes a debt to B, on B's own account, and another debt to B as trustee for somebody, and A pays B a sum of money without appropriating it, B cannot apply it all to the debt due him on his own account, but must divide it between that debt and the debt due to him as trustee, in proportion to their respective amounts. Because it is his duty as trustee to take as good care of the debts due to him for another, as of those due to him on his own account. We have spoken of a " bill or note ; " and notes are sometimes called bills ; so bank-notes are often called bank-bills. But the legal meaning of "bill" is always a draft or order on somebody to pay money. A note is a promise to pay. See chapter on Notes and Bills. CHAPTER XVII. EBCEIPTS Al^D EELEASES. A receipt is only an acknowledgment that a sum of money has been paid. It may be in one word, as when, under a bill of parcels, the seller writes the word "paid," and signs it. More commonly the words are " received payment." Formerly it was usual to A CITIZEN OF TEE, UNITED STATES. 46^ add the words "errors excepted." Then it grew customary to write the initial letters " E. E. " instead of the words ; but all this is unnecessary. If there be an error in the receipt, or in the paper recelptedj the law permits the party injured by it to explain aiid correct the error, although there be no express reservation or ex- ception of errors. Receipts are of all degrees of fulness, from the single word " paid," to those which relate the particulars for which the receipt is given, and the manner in which the money was paid or the thing delivered. I give the following forms of receipts and releases : — FORMS AITNEXED TO THIS CHAPTBE. (133.) A, receipt in simplest fonu. (134.) A receipt, stating on what account the money is received. (135.) A, receipt, stating the purpose for which the money or articles are received. (186.) A general release. (137.) A mutual general release by indenture. (138.) A release from creditors to a debtor, under a composition. (139.) A release of all legacies. (140.) A release of a bond, it being lost. (141,) A release of a judgment. (142.) A release of a condition. (143.) A release of a covenant contained in an indenture of lease. (144.) A release in extinguishment of a power. (145.) A release from a lessor to a lessee (upon his surrendering his lease) , from the covenants therein. (146.) A general release of dower. (147.) A release of dower to the heir. (148.) A release of dower, in consideration of an annuity given by will. (149.) A release of dower, where, the present husband of the widow, joins in the deed. (150.) A release of a trust. (151.) A release of right to lands. (152.) A release between two traders, on settling accounts. (133.) A KECEIPT IN SIMPLEST FORM. (Date) . This day I have received from dollars. (Signatta-e.y 470 TBE PROPERTY RIGHTS OF (134.) A SIMPLE RECEIPT, STATING 0^ WHAT ACCOUNT THE MONET IS EECEIVED. (Date). This day I have received from dollars, on account of (Signature.') (135.) A RECEIPT,' STATING THE PURPOSE FOR WHICH THE MONEY OR ARTICLES ARE RECEIVED. (Vate.) This day the following (^papers, or other articles, enumerat- ing and describing them), were delivered to me by (add, on account of, or in execution of, the promise or bargain, describing it; and, if they are delivered for any particular purpose, describe that), and I hereby acknowl- edge the receipt of them. (^Signature.) Every receipt is open to evidence, not only to explain it, but to contradict it. Herein releases differ from receipts. A release gives up some right or claim which the releasor had against the releasee. It is in the nature of a contract, and therefore cannot be controlled or contradicted by evidence, unless on the ground of fraud. But if its words are ambiguous, or may have either of two or more mean- ings, evidence is receivable to deteiToine the meaning. Like every other contract, it reg^uires a consideration, and is of no force without one. But here comes in the rule of law as to a seal. The general rule is, as has been stated before, a seal implies, or is the same as, the assertion of a consideration ; and therefore it is always customary to put a seal to a release. But a release, even with a seal, if it can be shown to have been given without any con- sideration whatever, can be set aside. It is always best to state in the release itself that it was given for a consideration, and what the consideration is. A release properly drawn, and duly signed and sealed, is a complete defence to an action grounded on any of the debts or claims released. The following forms are for releases of various kinds: — (136.) A GENERAL RELEASE. Know all men by these presents. That I (the name of the releasor), of for and in consideration of the sum of to me paid by of have remised, released, and for ever A CITIZEN OF THE UNITED STATES. 471 discharged, and by these presents do, for me, my heirs, executors, and administrators, remise, release, and for ever discharge, the said his heirs, executors, and administrators, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judg- ments, extents, executions, claims, and demands whatsoever, in law and in equity, which against the said I ever had, now have, or ■which I, my executors or administrators, hereafter can, shall, or may have, for, upon, or by reason of, any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In witkess whereof, &c. (Signature.") (Seal.) (137.) A MUTUAL GENERAL RELEASE BY INDENTURE. This indenture, Made between of and of witnesseth, That the said doth by these pres- ents remise, release, and for ever quitclaim unto the said all and all manner of actions (as before); and this indenture further witness- eth, That the said by these presents, doth remise, release, and for ever quitclaim unto the said all and all manner of actions (as before). In witness whereof, &c. (Signature.) (Seal.) (138.) A RELEASE FROM CREDITORS TO A DEBTOR, UNDER A COMPOSITION. To ALL PERSONS TO WHOM THESE PRESENTS MAT COME, We who haVB hereunto set our hands and seals, creditors of of send greeting. Whereas the said is indebted to us, his said creditors, in several sums of money, which he is not able fully to satisfy and discharge; we therefore have agreed, and do hereby agree, to accept of the sum of in full payment and satisfaction of all the debts owing to us respectively at the date hereof, by and from the said which is paid by or for the said (the name of the debtor) , to (the names of the persons to whom the money is to be paid for the creditors releasing),^ and assignees bg virtue of a commission of bankrupt awarded against the said for the use of, and to the intent that the same may be shared and divided amongst, us his said creditors, seeking relief under the said commission, in proportion and according to the debts to us severally due and owing. Now, therefore, know ye, that for the considera- tion aforesaid, each of us, the said creditors who have hereunto set our hands and seals, for him and herself, his and her heirs, executors, and copart- 1 The words following in Italic may be omitted, according to circumstances. 472 THE PROPERTY RIGHTS OF ners, doth by these presents remise, release, and for ever discharge the said his heirs, executors, and administrators, of and from our said several debts, and all and all manner of action and actions ■which against the said each and every of us the said creditors now hath, or which each and every of our heirs, executors, or administra- tors, respectively, hereafter may, can, or ought to have, claim, or demand, for, upon, or by reason of, the said several and respective debts to us severally due and owing, or for or by reason of any other matter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In wuness whebeof, &c. (^Signature.) (^SealJ) (139.) A EELEASE OF ALL LEGACIES. Know all men by these presents, That I of ■widow, have remised, released, and for ever quitclaimed, and by these pres- ents do for me unto of gentleman, executor of the last will and testament of late of deceased, and to the heirs, executors, and administrators of the said all legacies, gifts, bequests, sum and sums of money and demands whatsoever, bequeathed and given unto me the said in and by the last will and testament of deceased, and all and all manner of actions and suits, sum and sums of money, debts, duties, reckonings, accounts, and demands whatsoever, which I the said ever had, now have, or that I, my executors or administrators, can or may, at any time or times hereafter, have, challenge, or demand against the said his executors, administrators, or assigns, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In witness whereof, &c. (^Signature.') (Seal.y (140.) A EELEASE OF A BOND, IT BEING LOST. To ALL TO WHOM THESE PRESENTS MAT COME (name of releasor), sendeth greeting. Whereas by his bond or obligation, bear- ing date (recite the bond), as by the said bond or obligation, and the condi- tion thereof may appear. And whereas the sum of mentioned in the said bond, with all the interest for the same, is paid and satisfied unto me the said in full discharge for the said bond or obliga- tion. And whereas the said bond or obligation is lost, or at present mis- laid, so that it cannot be found to be delivered up to the said to be cancelled. Xowknow ye, that I the said " for the con- sideration aforesaid, have remised, released, and qjdtolaimed, and by the.se A CITIZEN OF THE UNITED STATES. 473 presents do, for me, my executors and administrators, remise unto the said ' his heirs, executors, and administrators, as well the said recited bond or obligation, as all such sums of money as therein are mentioned to be due and payable, unto me the said my executors, administrators, or assigns; and also all actions, suits, caupe and causes of action, accounts, debts, reckonings, sums of money, judgments, executions, and demands whatsoever, which I the said ever had, now have, or that I, my executors, administrators, or assigns, or any of us, can or may have, for or against the said his executors or administrators, for, or by reason of, the said recited bond or obligation, or any other matter, cause, or thing whatsoever, concerning the same, from the b.eginning of the world to the day of the date hereof. In witness whereof, I the said have hereunto set my hand and seal, this day of (^Signature.') (^Seal.') In presence of ( The following covenant may he inserted hefore " In witness.") And I, the said for me, my executors do covenant to and with the said his that if I the said my executors, or any of us, at any time hereafter, do find or can obtain the said recited bond or obligation, then I the said my executors or some of us, shall and will, within two months next after the said obligation shall be found as aforesaid, deliver, or cause to be delivered, the said bond or obligation unto the said his (141.) A RELEASE OF A JUDGMENT. This indentduk. Made the day of in the year one thousand eight hundred and between of the first part, and of the second part. Whereas, Judgment was rendered on the day of in the year one thousand eight hundred and in an action in the between plaintiff and defendant in favor of the said against the said for the sum of as appears by the Now THIS INDENTURE WITNESSETH, That the Said part of the first part, in consideration of the sum of to ' duly paid at the time of the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, released, discharged, and set over, and by these presents do grant, release, discharge, and set over, unto the said part of the second part, the following described premises, to wit: Together with the hereditaments and appurtenances thereto belong- ing; and all the right, title, and interest of the said part of the first part, of, in, and to the same, to the intent that the lands hereby conveyed 474 THE PROPERTY RIGHTS OF may be released and discharged from the said above-mentioned judgment, and from all lien or incumbrance that has attached to the same, by reason of the recovery of the said judgment, as free and clear in all respects as though said judgment had not been rendered. To have and to bold the lands and premises hereby released and conveyed, to the said part of the second part heirs and assigns, to their only proper use, beneiit, and behoof for ever, free, clear, and discharged of and from all lien and claim, under and by virtue of the judgment aforesaid. •In WITNESS WHEREOF, The said part of the first part ha hereunto set hand and seal , the day and year first above written. (^Signatures.) (^Seals.') In presence of (142.) A RELEASE OF A CONDITION'. Kkow all men by these presents. That I, of for divers good considerations me hereunto moving, have demised, released, and quitclaimed, and by these presents, for me, my executors, administrators, and assigns, do unto of his heirs, executors, administrators, and assigns, as well one proviso or condition and all and every the sum and sums of money, specified in the same proviso or condition, contained or comprised in one pair of indentures of bearing date made between me the said of the one part, and the said of the other part, and also all and all manner of actions and suits, cause and causes of actions and suits, for or concerning the said proviso or con- dition. In witness whereof, I the said have hereunto set my hand and seal, this day of In presence of {Signature.') {Seal.) (143.) A RELEASE OF A COVENANT CONTAINED IN AN INDENTURE OF LEASE. To ALL PERSONS TO WHOM THESE PRESENTS MAY COME (name of releasor) sendeth greeting. Whereas in and by an indenture of lease, bear- ing date made between of the one part, and the said of the other part, there is contained a covenant in these words following, viz. {recite the covenant verbatim, as therein contained), whereunto relation being had, it doth at large appear. Now know ye, that I, the said for divers good causes and considerations me hereunto moving, have remised, released, and quitclaimed, and by these presents for me do unto the said his the said covenant, grant, clause, agreement, and article, A CITIZEN OF THE UNITED STATES. 475 before rehearsed or recited, and all and every other matter, thing, and things specified, declared, and contained in the same covenant, clause, and agreement, and all the benefit, profit, advantage, and commodity that by any manner of means may or might arise, grow, come, or happen to me the said for or by reason of the same covenant, clause, arti- cle, or agreement, or any word, sentence, matter, thing, or things therein contained, so that the said his executors and assigns, and every of them, from henceforth for ever, shall be fully acquitted, released, and discharged against me the said my executors and administra- tors, and every of us, of, from, and for the said covenant, grant, clause, article, and agreement before rehearsed or recited, and of, from, and for every thing and things touching the same (but this present release shall not in any wise extend to any other covenant, clause, or article in the said indenture contained). In witness whebkof, I, the said have hereunto set my hand and seal, this day of In presence of (Signalure.') (Seal.) (144.) A RELEASE IN EXTINGUISHMENT OF A POWER. To -ALL PERSONS TO WHOM THESE PRESENTS MAY COME, NoW kuOW ye, that I, the said pursuant to the said agreement, and for divers good causes and considerations me hereunto moving, have released, extinguished, and discharged, and by these presents do fully and absolutely release, extinguish, and discharge, the said recited power for raising the said sum of as aforesaid, and all the lands therein comprised, or subject thereto, so that I, the said shall not nor will, at any time or times hereafter, raise the same, or any part thereof, or hereafter charge the said lands with the payment thereof, or any part thereof. In witness wHEREor, I, the said have hereunto set my hand and seal, this day of (Signalure.) (Seal.) In presence of (145.) A RELEASE FROM A LESSOR TO A LESSEE (UPON HIS SURRENDERING HIS LEASE) FROM THE COVENANTS THEREIN. To ALL PERSONS TO WHOM THESE PRESENTS MAT COME (name of releasor) sends greeting. Whereas the said by his indenture of lease, bearing date did demise unto a messuage in at a certain rent, for a certain term of years, of which about years are yet to come and undeter- mined, in which said lease are contained covenants for repairing the said 476 THE PROPERTY RIGHTS OF premises, and other covenants on the part of the said to. be performed. And whereas, by agreement between the said and the said hath delivered np. the said recited, lease, and surrendered the same, and all his interest and term in and to the said house and premises. Now, therefore, know ye, that the said in consideration thereof, doth hereby, for himself, his heirs, executors, and administrators, remise, release, and for ever discharge the said his executors and adniiuistrators, of and from all and every the covenants and agreements in the said recited lease contained, by and on the part and behalf of the said his -to be done and performed, and from all actions, suits, costs, charges, payments, damages, claims, and demands whatsoever, in law and equity, for or con- cerning the same in any manner of wise. In witness whkbeof, I, the said have hereunto set my hand and seal, this day of (^Signature.) (^Seal.) In presence of (146.) A GENERAL RELEASE OF DOWER. To ALL TO WHOM THESE PRESENTS SHALL COME (name of re- leasor) send greeting. Know ye, that the said the party of the first part to these presents, for and in consideration, of the sum of lawful money of the United States, to her in hand paid at or before the ensealing and delivei-y of these presents, by of the second part, the receipt whereof is hereby acknowledged, hath granted, remised, released, and for ever quitclaimed, and by these presents doth grant, remise, release, and for ever quitclaim, unto the said party of the second part, heirs and assigns, for ever, all the dower and thirds, right and title of dower and thirds, and all other right, title, inter- est, property, claim, and demand whatsoever, in law and equity, of her, the said party of the first part, of, in, and to (here describe the estate the flower 171 which is released), so that she, the said party of the first part, her heirs, executors, administrators, or assigns, nor any other person or persons, for her, them, or any of them, shall not have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, title, claim, or demand whatsoever, of, in, or to the same, or any part or parcel thereof, in whosesoever hands, seisin, or possession the same may or can be, and thereof and therefrom shall be utterly barred and excluded for ever by these presents. I|r WITNESS WHEREOF, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) In presence of A CITIZEN OF THE UNITED STATES. 477 (147.) A RELEASE OF DOWER TO THE HEIR. Know all men by these presents, That I, relict of late as ■well lor and in consideration of to toe paid, at or before by my son the receipt -whereof I do hereby acknowledge, and for the love and afEec- ' tion ■which I have to my said son, have granted, remised, released, and for ever quitclaimed, and by these presents do unto the said his heirs and assigns, for ever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property, claim, and demand whatsoever, in law or in equity, of me the said of, in, and to (a description of the parcel of land in which dower is released), so that neither I, the said my heirs, execu- tors, or administrators, nor any other person or persons for mej them, or any of them, shall have, claim, challenge, or demand, or pretend to have any dower or thirds, or any other right, title, claim, or de- mand, of, in, or to the said premises, but thereof and therefrom shall be utterly debarred and excluded, for ever, by these presents. In witness whbkeof. The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and In presence of (^Signature.") (Sea/.) (148.) A RELEASE OF DOWER IN CONSIDERATIOIT OF AIT AlfflTnTT GIVEN BY WILL. To ALL PERSONS TO ■WHOM THESE PRESENTS MAT COME (name of refea«or) , ■widow, relict, and residuary legatee of late' of deceased, sendeth greeting. Whereas the said in and by his last will and testament, duly signed, sealed, published, and declared in my presence and with my approbation, bearing date did settle and secure unto and upon me the said an annuity of to be paid unto me half-yearly, by equal payments, in lieu and full satisfaction of the dower or thirds at common law, which I might otherwise have, claim, or be entitled unto, out of all and every the lands, tenements, and hereditaments whatsoever of my said late husband, deceased, or of, in, to, or out of the reversion or remainder, rents, issues, and profits thereof. Now kaow ye, that I, the said for and in consideration of the said annuity so secured to me as afore- said, and in pursuance and part performance of the said last -will and testament of my said late husband, do hereby declare myself fully satis- fied and contented therewith, and do hereby remise, release, and for ever quitclaim unto of and of trustees, appointed in and by the said last will and tes- 478 THE PROPERTY RIGHTS OF tament of my said late husband (in their actual possession and^seisin now being), their executors all and all manner of dower in and to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, for ever, by these presents. Isr WITNESS WHEREOF, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (^Signature.) (^Seal.) In presence of (149.) A RELEASE OF DOWER, WHERE THE PRESENT HUSBAND OF THE WIDOW JOINS IN THE DEED. Know ail men by these presents. That (name of husband), of and (name of wife), his wife, in her right, in consideration of paid them by of the receipt whereof they hereby acknowledge, have granted, remised, released, and for ever quitclaimed, and by these presents do unto the said his heirs and assigns, for ever, all the right which the said hath to dower or thirds, of and in (here describe the estate) , whereof her late husband (name of former husband), late died seised, situate, which she claims as the endowment of the said deceased, and all the right, title, interest, and claim whatsoever, which the said and have or either of them hath, or by law might have, of, in, and to the same To have and to hold the same to the said and his heirs and assigns, for ever ; and the said and for themselves, their heirs, executors, and administrators, do hereby covenant with the said and his heirs and assigns, that he and they shall henceforth for ever have and quietly enjoy the released premises, without any claim or demand had or made, or to be had or made, by them, or any persons claiming, or who may claim, the same or any part thereof, by, from, or under them or their heirs. In witness whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) In presence of (150.) A RELEASE OF A TRUST. To ALL TO WHOM THESE PRESENTS MAT COMB (name of releasor) sendeth greeting. Whereas, by indenture bearing date made between (here recite the deed), in which said indenture the said doth hereby declare, that his name was only used in trust, for the benefit and behoof of of Now know ye, A CITIZEN OF THE UNITED STATES. 479 that I, the said in discharge of the trust reposed in me, at the request of the said have remised, released, and surren- dered, assigned, and set over, and by these presents, for me, my executors and administrators, do freely and absolutely remise unto the said his executors all the estate, right, title, interest, use, benefit, privilege, and demand whatsoever, ■which I, the said have, or may have or claim, of or to the said premises, or of and in any sum of money, or other matter or thing whatsoever, in the said indenture contained, mentioned, and expressed, so that neither I, the said my executors or administrators, or any of us, at any time hereafter, shall or will ask, claim, challenge, or demand any interest or other thing, in any manner whatsoever, by reason or means of the said indenture, or any covenant therein contained, but thereof and therefrom, and from all actions, suits, and demands, which I, my execu- tors, administrators, or assigns, may have concerning the same, shall be utterly excluded and for ever debarred, by these presents. In witness whereof. The said party of the first part to these presents, hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (^Signature.') (Seal.') In presence of (151.) A RELEASE OF EIGHT TO LANDS, Know all men by these presents. That I (name of releasor), of in consideration of to me paid by (name of releasee) the receipt have remised, released, and for ever quitclaimed, and by these presents do unto the said and his heirs, all the estate, right, title, interest, use, trust, claim, and de- mand whatsoever, both at law and in equity, which I, the said have, of, in, to, or out of, all and singular the following described parcel of land (here describe the land), so that neither I, the said my heirs or assigns, or any other person or persons in trust for me or them, or in my or their name or names, or in the name, right, or stead of any of them, shall or will, can or may, by any- ways or means whatsoever, here- after have, claim, challenge, or demand, any right, title, or interest, prop- erty, claim, and demand, of, in, to, or out of the same or any of them, or any part thereof, but that I, the said my heirs and assigns, and every of them, from all estate, right, title, interest, property, claim, and demand, of, in, to, or out of the said or any of them, or any part thereof, are, is, and shall be, by these presents, for ever excluded and debarred. In witness whereof, The said party of t}ie first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) In presence of 480 TBE PROPERTY RIGHTS OF (152.) A RELEASE BETWEEN TWO TRADERS ON SETTLING ACCOUNTS. Whereas sundry accounts, current and otherwise, and divers dealings in trade, have been subsisting for a long time past between of trader, and of trader, which said accounts and dealings the said and have balanced and adjusted, whereby it appears that nothing remains due from the one to the other ; and whereas, therefore, to prevent any future disputes con- cerning the said accounts and dealings, and to confirm the said adjustment, the said and have mutually agreed to give recipro- cal releases to each other. Now, know all men by these presents, that the said {one of the parlies) (for the considerations abovesaid, and to prevent all future disputes) , for himself, his executors and administrators, doth remise, release, and for ever quitclaim unto the said {the other party), his all and all manner of action and actions, cause, and causes of action, suits, debts, dues, sum and sums of money, accoimts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, prom- ises, variances, damages, extents, executions, claims, and demands whatso- ever, both at law and in equity, which against the said his the said now hath or ever had, on account of their said mutual dealings, or for or by reason of any other cause, matter, or thing whatsoever, from the beginning of the world to the day of the date of these presents. And the said {the other party) (for the considerations abovesaid, aftd to prevent all future disputes) , for himself, his executors and administrators, doth remise, release, and for ever quitclaim unto the said {the other party), his all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckon- ings, bonds, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, extents, executions; claims, and demands whatsoever, both at law and in equity, which against the said . his the said now hath or ever had, on account of their said mutual dealings, or for or by reason of any other cause, matter, or thing whatsoever, from the- beginning of the world to the day of the date of these presents. In witness whereof, We have hereunto set our hands and seals, this day of in the year {SigfMtwes.') {Seah.") In presence of A CITIZEN OF THE UNITED STATES. 481 CHAPTER XVIII. NOTES OF HAND AND BILLS OF EX- CHANGE, DRAFTS, AND CHECKS. SECTION I. THE PURPOSE OF, AND THE PARTIES TO, SUCH PAPERS. These instruments are usually negotiable. By negotiable paper is meant evidence of debt which may be transferred by indorse- ment or delivery, so that the transferee or holder may sue the same in his own name, and as if it had been made payable to him orig- inally ; or, in other words, it means paper, that is, bills of exchange or promissory notes, or drafts, or checks, payable to the order of a payee, or to bearer. Where and when bills of exchange were invented is not cer- tainly known. They were not used by any ancient nations, but have been employed and recognized by most commercial nations for some centuries. A still more recent invention is the promissory negotiable note, which, in this country, for inland and domestic purposes, has taken the place of the bill of exchange very gener- ally. Besides these two, bills of lading and some other documents have a kind of negotiability, but it is quite imperfect. The utility of bills and notes in commerce arises from the fact that they repre- sent money, which is the representative of the market value of every thing ; and many of the peculiar rules respecting negotiable paper are derived from this representation, and intended to make it ade- quate and effectual. The rules of law on the subject of negotiable paper are moi"e exact and technical than those of any other department of mercantile law. They reach, on many points, an extreme nicety, which makes it difficult to express them intelligibly to persons who do not already possess some familiarity with the subject. All diffi- culty of this kind could have been easily avoided by me, by omitting any notice of these nice points. But it was thought better to men- tion them, one and all, for these are the things an intelligent man of business should know ; and although the rules stated, especially those in reference to presentment, demand, notice, and some other subjects, may seem to be intricate and difficult, they require, it is believed, only careful consideration to be fully understood. 31 482. TEE PROPERTY RIGHTS OF A negotiable bill of exchange is a written order whereby A orders B to pay to C or his order, or to bearer, a sum of money, absolutely and at a certain time. (153.) COMMON FORM OF A BILL OF EXCHANGK New York, January 5, 18 Value received, please pay to C or order, dollars, in days {or months) after sight (it may he after date), on account of (Signed) A ToB A is the drawer, B the drawee, and C the payee. If the bill is presented to B, and he agrees to obey the order, he " accepts " the bill, and this he does in a mercantile way, by writing the word " accepted " across the face of the bill, and also writing his name below this word ; then the drawee becomes the acceptor. If C, the payee, chooses to transfer the paper and all his rights under it to some other person, he may do this by writing his name on (usually across) the back ; this is called indorsement, and C then becomes an indorser. The person to whom C thus transfers the bill is an indorsee. The indorsee may again transfer the bill by writing his name below that of the former indorser, and the indorsee then becomes the second indorser ; and this process may go on indefi- nitely. If the added names cover all the back of the note, a piece may be wafered on to receive more. In France, this added piece is called " allonge" and this word is used in some of our law-books, but not by our merchants. (154.) COMMON FORM OF A PROMISSORY NOTE. New York, January 5, 18 Value received, I promise to pay B or order, dollars, in days (or months, or on demand) from date. (^Signature.) It is best to write the words " from date," although they are often omitted, and the law construes the note as if they were written. It is quite important to have a clear idea of the diflferenee between the parties to a note and the parties to a bill of exchange. A CITIZEN OF THE UNITED STATES. 483 If A makes a note to B, then A promises to pay, and is the prom- isor, and B is the promisee, or payee. But it' it be payable.to B or order, B may write his name across the hack, that is, may indorse it, and is an indorser. And if he directs, over his signature on the back, that the note be paid to any person in particular, such payee is now an indorsee. But when a bill is drawn, nobody promises, in words, to pay it. A orders B to pay to C. If B, when requested, says he will not do as ordered, the law supposes A, the drawer, to have promised that he would pay if B did not. If B " accepts," the law now supposes that B promises C to pay the bill to him. Now B, being the acceptor, is held by the law just as a maker of a note is, because he is supposed to have promised in the same way. A, the drawer, is held just as the first indorser of a note is held, because he is supposed to have promised to pay if B did not. If the bill was negotiable, that is, payable to C, or his' order, then C may indorse the bill ; and although his name is the only one on the back of the bill, he is treated in law only as second indorser, because the drawer is bound in the same way as a first indorser. And if D then puts his name below C's, he is treated as third in- dorser, and so on. For the rights, obligations, and duties of all these parties, see the subsequent sections. We repeat, that a negotiable promissory note is a written promise to pay to a certain person or his order, or to bearer, at a certain time, a certain sum of money ; and he who signs this is called the maker or the promisor ; the other party is the promisee or payee. The payee of such a note has the same power of indorse- ment as the payee of a bill of exchange. If the note be not pay- able "to order," nor to "bearer," it is then not negotiable : these words, " or order " or " to bearer," being the words which make it negotiable. The maker of a negotiable note holds, as has been said, the same position as the acceptor of a bill, the drawer the same as the first indorser of a note ; that is, a party holding a note and seeking payment of it, looks fiFSt to the maker, and then to the indorser ; one holding a bill looks first to the drawee or acceptor, and, on his failure, to the drawer. Neither indorsement nor acceptance nor making is complete until delivery and reception of the bill or note or acceptance; and a defendant may show that there was no legal delivery of the paper. The law of negotiable paper first defines a bill or note, and determines what instruments come under these names, and then describes and ascertains the duties and obligations of all the parties we have named above. We shall follow this order. 484 THE PROPERTY RIGHTS OF SECTION II. WHAT IS ESSENTIA!, TO A IVEGOTIABLE NOTE OR BILL. A written order or promise may be perfectly valid as a written contract or promise, but, although made " to order," wiU not be negotiable, unless certain requisites of the law-merchant are com- plied with. The difference between a note that is negotiable and one that is not, is very important in many respects. One of these is as to the operation of the trustee process, or foreign attachment, or garnishee process, as it is sometimes called. If A owes B a hundred dollars, C, a creditor of B, may trustee A (to use the common phrase), and A must then pay to C what he owes to B. And this is so, even if A have given his note to B for the hundred dollars, if the note be not negotiable, that is, not to B or order. But if the note be negotiable, A cannot be trusteed. The reason is, that if he is obliged to pay the money to C, and B should indorse the note to D for value, and D take it honestly, A must pay the note to D, and so would have to pay it twice. But if the note is not negotiable, B cannot indorse it, and A is safe in paying the money over to C. 1. The Promise must be absolute and definite. — The promise of the note, and the order of the bill, must be absolute. Words ex- pressive of intention only do not make a promissory note, and a mere request without an order does not make a bill of exchange. But no one word, and no set of words, are absolutely necessary ; for if from all the language the distinct promise or positive order can be inferred, that is sufficient. The time of payment is usually written in a bill or note ; if not, it is payable on demand. The time of payment must not depend on a contingency. In fact, any contingency apparent on the face of the instrument prevents it from being a negotiable note; and the happening of the contingency does not cure it. And the pay- ment promised or ordered must be of a definite sum of money. A negotiable bill of exchange or promissory note must be pay- able in money only, and not in goods or merchandise, or property of any kind, or by the performance of any act. If payable in " current funds," or " good bank-notes," or " current bank-notes," this should not be sufiicient on general principles, and according to many authorities ; some courts, however, construe this as meaning notes convertible on demand into money, and therefore as the same thing as money, and call the note negotiable. A CITIZEN OF THE UNITED STATES. 485 A bill or note may be written upon any paper or proper sub- stitute for it, in any language, in ink or pencil. A name may be signed or indorsed by a mark ; and, though usually written at the bottom, it may be sufficient if written in the body of the note ; as, " I, A B, promise," &c. ; unless it can be shown that the note was incomplete, and was intended to be finished by signature. If not dated, it will be considered as dated when it was made ; but a writ- ten date is prima facie evidence (this means evidence which may be overcome by opposite and better evidence, but until so over- come is sufficient) of the time of making. The amount is usually written in figures at the corner or bottom. If the sum is written at length in the body, and also in figures at the corner, and they differ, the written words control the figures, and evidence is not admissible to show that the figures were right and the words in- accurate. But in an American case, a promissory note, expressed to be for "thee hundred dollars," and in figures in the margin, $300, was held to be a good note for three hundred dollars, if the maker when he signed it intended "three" when he wrote "thee;" and whether such was bis intention was a question for the jury. And the omission of such a word as " dollars," or " pounds," or " sterling," may be supplied, if the meaning of the instrument is quite clear. • It has been just said that any contingency apparent on the face of the instrument prevents it from being a negotiable note. Hence it is not safe to write in the body of the note, or in connection with the promise, any condition or contingency. But if what is so written in no way affects the promise itself, the note may still be negotiable. Thus, in some parts of this country, persons who sell a machine, or other thing, on a credit, sometimes take a promissory note pay- able to the seller or order, and containing an additional clause, pro- viding that, until the note is paid, the property in the thing sold (or the ownership of it) shall be and remain in the seller. Such notes are often made in the following form: — (155.) FOKM OF A NOTE GIVEN FOE A CHATTEL SOLD, WITH A CONDITION PRESERVING THE OWNERSHIP OF THE SELLER. $ (Place and.date) 18 On the P. 0. is promise to pay Bank in day of 18 county of or order ■with interest at I {or we) , the subscriber , whose and State of dollars at the First National per cent per annum until 486 THE PROPERTY RIGHTS OF paid. And it is further agreed that the title to the (reaper) , for which this note is given, shall remain iu said (the seller) until this note is fully paid. Value received ( Witness .) (Signature.) On the hack of this note is sometimes the following statement : — STATEMENT MADE POE THE PURPOSE OF OBTAINING CKfiDIT. 1 own acres of land in my own name in the town of county of and State of which is worth, at a fair valuation, $ It is not incumbered by mortgage or otherwise, except the amount of $ and the title is perfect in me in all respects. I have stock and personal property to the amount of % over and above my debts and liabilities. The above property being worth, over and above my debts, liabilities, and exemptions, at least five times the amount of the within note. The question has arisen whether such a note is negotiable. Sup- pose the seller of the chattel, who is payee of the note, sells the note and indorses it for value to an innocent indorsee, and then the buyet finds that he was cheated, and puts in this defence of fraud when he is sued -on the note by the indorser. He can make this defence if this note be not negotiable / but he cannot make it if it be negotiable. I should say it was negotiable; and that the only effect of the con- dition or provision annexed to the promise was, that it operated much as a mortgage of the thing by the buyer back to the seller, to secure the payment. 2. The Payee must be designated. — The payee should be dis- tinctly named, unless the bill or note be made payable to bearer. If it can be gathered from the instrument, by a reasonable or necessary construction, who is the payee, that is enough. The note may be made payable to the promisor or his order ; that is, a man may say, I promise to pay to my own order; and such note is nothing until the promisor not only signs it, but indorses it. A note indorsed in blank is always transferable by delivery, just as if it were made payable to bearer; because any holder may write over the indorsement an order to pay to himself. Indorse- ments are either indorsements in blank, by which is meant the name of the indorser and nothing more, or indorsements in full, which are so called when over the name of the indorser is written, "pay to A B." (By A B we mean the name of the person to whom the note or bill is indorsed.) These two kinds of indorsements are fully explained subsequently in this chapter. A note to the order of A CITIZEN OF THE UNITED STATES. 487 the promisor himself, and indorsed by him in blank, is tbei-efore " much the same thing as a note to bearer. But it is qujte commonly used in our mercantile cities, because the holder can always pass it away without indorsing if he chooses, or can put his name on it as second indorser if he likes to. If the indorsee be named, and the note get into the possession of a wrong person of the same name, this person neither has nor can give a title to it. If the name be spelt wrong, evidence of intention is receivable. If a father and son have the same name, and either of them has possession of the note and indorses it, this would be evidence of his rightful ownership. If neither payable to bearer, nor to the maker's or drawer's order, nor to any other person, it would be an incomplete and invalid instrument. A note to a fictitious payee, with the same name indorsed by the maker, would undoubtedly be held to be the maker's own note, either payable to bearer, or to himself or order by another name, and so indorsed. If a blank be left in a bill for the payee's name, a bona fide (or honest) holder may fill it with his own, the issuing of the bill in blank being an authority to a bona fide holder to insert the name. And if the name of the payee be not the name of a person, as if it be the name of a ship, the instrument is payable to bearer. A note payable to different persons in the alternative, — that is, to one or the other of them, — is not a good promissory note. A bill or note "to the order of" any person is the same as if to him "or his order,'' and may be sued by him without indorsement. 3. Of Ambiguous and Irregular Instruments. — The law in rela- tion to protest and damages makes it sometimes important to dis- tinguish between a promissory note and a bill of exchange, because by law a foreign bill of exchange, if unpaid, should be protested, but not a promissory note ; but it is a common practice to pi'otest prom- issory notes when they are not paid. The rule in general is, that, if an instrument be so ambiguous in its terms that it cannot be cer- tainly pronounced to be one of these to the exclusion of the other, the holder may elect and treat it as either. As if written, " Value received, in three months from date, pay the order of H. L. $500. (Signed) A. B.;" and an address or memorandum at the bottom, "At Messrs. E. F. & Co." 4. Of Bank-notes. — Bank-notes or bank-bills are promissory notes of a bank, payable to bearer ; and, like all notes to bearer, the property in them passes by delivery. They are intended to be used as money ; and while a finder, or one who steals them, has no title himself against the owner, still, if he passes them away to a boMk 488 THE PROPERTY RIGHTS OF fide holder, — that is, a holder for value without notice or knowl- edge, — such owner holds them against the original owner. And if ' the bank pays them in good faith on regular presentment, the owner has no claim. They pass by a will bequeathing money. They are a good tender, unless objected to at the time because not money. Forged bills, given in payment, are a mere nullity. Bills of a bank which has failed, but of which the failure is unknown to both parties, are now generally put on the footing of forged or void bills. But if the receiver of them, by holding them, and by a delay of returning or giving them up, injures the payer and impairs his opportunity or means of indemnity, the receiver must then lose them. 5. Of Cheeks on Banks. — A check on a bank is undoubtedly a bill of exchange ; but usage and the nature of the case have intro- duced some important qualifications of the general law of bills in its application to checks. A check requires no acceptance, because a bank, after a customary or reasonable time has elapsed since deposit, and while still in possession of funds, is bound to pay {he checks of the depositors. The drawer of a check is not a surety, as is the drawer of a bill, but a principal debtor, like the maker of a note. Nor can a drawer complain of any delay whatever in the present- ment; for it is an absolute appropriation, as between the drawer and the holder, to the holder of so much money in the banker's hands ; there it may lie at the holder's pleasure. But delay is at the holder's risk; for if the bank fails after he could have got his money on the check, the loss is his. If the bank, before he presents his check, pay out all the money of the drawer on other checks, he may then look to the drawer. If one who holds a check as payee, or otherwise, transfers it to another, he has a right to insist that the check shall be presented in the course of the banking hours of that day, or at farthest the next ; that is, he is not responsible for the failure of the bank to pay, unless it is so presented, provided it would then have been paid. And if the party receiving the check live elsewhere than where the bank is, it seems that he should send it for collection the next day ; and if to an agent, the agent should present it, at latest, in the course of the day after he receives it. If the check be drawn when the drawer neither has funds in the bank, nor has made any arrangement by which he has a right to draw the check, the drawing it is a fraud, and the holder may bring his action at once against the drawer, without presentment of the check at the bank, or notice of non-pay- ment. Checks are seldom accepted. Bnt they are often marked hy the '(tank as good ; and this binds the bank as an acceptor. A CITIZEN OF THE UNITED STATES. 489 Checks are usually payable to bearer, but may be and often are drawn payable to a payee or his order ; for this guards against loss or theft, because the check will not be paid unless the payee writes his name on it ; and it gives to the drawer, when the check is paid and returned by the bank to him, what is the same as the receipt of the payee. Generally, a check is not payment until it is cashed ; then it is payment if the money was paid to the creditor, or the check had passed through his hands. A bank cannot maintain a claim for money lent and advanced, merely by showing the defend- ant's check paid by them; because the general presumption is, that the bank paid the check because it was drawn by a depositor against funds. While the death of a drawer countermands his check, if the bank pay it before notice of the death reaches them, they are dis- charged. This would seem to be almost a necessary inference from the general purpose of banks of deposit, and the use which mer- chants make of them. If a bank pay a forged check, it is so far its own loss, that the bank cannot charge the money to the depositor whose name was forged. But the bank could recover the money back from one who presented a forged check, and was paid, provided the payee, if inno- cent, loses no opportunity of obtaining indemnity in the mean time ; that is, provided the payee loses nothing by the bank's paying the check; and provided he can be put in as good a position as if the bank had refused to pay it. But if somebody must lose, the bank should, because it is the duty of the bank to know the writing of its own depositors. If it pay a check of which the amount has been falsely and fraudulently increased, it can charge the drawer only with the original amount. But if the drawer himself causes or facilitates the forgery, as by so carelessly writing it or leaving it in such hands that the forgery or alter- ation is easy, so that it may be called his fault, and the bank is innocent, then the loss falls on the drawer. If many persons, not partners, join in a deposit, they must join in a check; but if one or more abscond, a court of equity will permit the remainder to draw the money. 6. Of Accommodation Paper. — An accommodation bill or note is one for which the acceptor or maker has received no considera- tion, but has lent his name and credit to accommodate the drawer, payee, or holder. Of course he is bound to all other parties pre- cisely as if there were a good consideration; for, otherwise, it would not be an effectual loan of credit. But he is not bound to the party whom he thus accommodates ; on the contrary, that jJarty is 490 THE PROPERTY RIGHTS OF bound to take up the paper, or to provide the accommodation acceptor or maker, or indorser, with funds for doing it, or to indem- nify him for taking it up. And if, before the bill or note is due, the party accommodated provides the party lending his credit with the necessary funds, he cannot recall them ; and if he becomes bank- rupt, they remain the property of the accommodation acceptor, or maker, who, if sued on the bill or note, can charge the party accom- modated with the expense of defending the suit, even if the defence were unsuccessful, if he had any reasonable ground of defence, be- cause the defence was for the benefit of the party accommodated ; inasmuch as he must repay the accommodating party if he pays the bill or note. 7. Of Foreign and Inland Bills. — Bills of exchange may be foreign bills, or inland bills. Foreign bills are those which are drawn or payable in a foreign country ; and for this purpose, each of our States \s foreign to the others. Inland bills are drawn and payable at home. Every bill is, on its face, an inland bill, unless it purports to be a foreign bill. If foreign on its face, evidence is ad- missible to show that it was drawn and payable at home. If a bill be drawn and accepted here, but afterwards actually signed by the drawer abroad, it is a foreign bill. If a foreign bill be not accepted, or be not paid at maturity, it should at once be protested by a notary public. Inland bills are generally, and promissory notes frequently, protested ; but this is not generally required by the law. The holder of a foreign bill, after protest for non-payment, or for non- acceptance, may sue the drawer and indorser, and recover the face of the bill, and, in addition thereto, his damages, which damages, on protest, are generally adjusted in this country by various statutes, — which give greater damages as the distance is greater ; and an estab- lished usage would supply the place of statutes if they were wanting. 8. Of the Law of Place. — The different States of the Union are, as to questions arising under mercantile \s.Yr, foreign countries as to each other. Important questions sometimes arise in the case of foreign bills (as well as in some other cases, for which see the chapter on the Law of Place), dependent upon what is called the law of place, the Latin phrase for which, lex loci, is often used. In general, every contract is to be governed by the law of the place where it is made. Thus, if a bill is drawn in France, and there indorsed in a way which is suiRcient here, but insufficient there, the indorsement would here be held void. But if a contract entered into in one place is to be performed in another, as in the case of a note dated or a bill drawn in one State, but payable in another, A CITIZEN OF THE UNITED STATES. 491 the prevailing rule is, that the law of the place where the note is payable construes and governs the contract. Therefore, if a bill be drawn in England, payable in France, the protest and notice of dishonor must be regulated by the law of France. But one who makes such a note may elect, for many purposes, which law shall govern it. Thus, if he makes it in Chicago, and it is payable in New York, he may promise to pay the legal interest of Chicago, and will be bound to this payment in New York, although the legal interest in New York is less ; but if there be no such express promise, the interest payable will be that of the place where the note is payable. While the law of the place of the contract interprets and con- strues it as a debt, and determines how large the debt is or how much is due upon it, the law of the place where it is put in suit — which is called the law of the forum, or court — determines all questions as to remedy / that is, all questions which relate to the legal means of. recovering the debt. Thus, in general, the statutes of limitation of the place of the court are applied. But if a cause of action relating to any special subject-matter which has a definite location, as a parcel of land has, be baiTed by a statute of limita- tion where the subject-matter is situated, it is barred everywhere. A promisor, not subject to arrest in the country where the note is made, may be arrested under the laws of the country where the note is sued. It will always be presumed, in the absence of testimony, that the law of a foreign country is the same with that of the country in which the suit is brought. If a difference in this respect is a ground of defence, or of action, it must be proved by evidence. SECTION III. THE CONSIDEKATION OF NEGOTIABLE PAPER. 1. -Exception to the Common-law Rnle, in the Case of Negotiable Paper. — By the common law of England and of this country, as we have seen, no promise can be enforced, unless made for a con- sideration, or unless it be sealed. But bills and notes payable to order, that is, negotiable, are, to a certain extent, an exception to this rale. Thus, an indorsee cannot be defeated by the promisor showing that he received no consideration for his promise ; because the promisor made an instrument for circulation as money ; and it ■would be fraudulent to give to paper the credit of his name, and then refuse to honor it. But as between the maker and the payee, or between indorser and indorsee, and, in general, between any two 492 THE PROPERTY RIGHTS OF immediate parties, the defendant may rely on tlie want of considera- tion, — that is, if an indorsee sues the maker, and the maker says he had no consideration for the note, — this is no defence ; but if the in- dorsee sues his indorser, and the indorser shows that the indorsee paid him nothing, this would be a good defence; and so it would be if the payee sued the maker. So, if a distant indorsee has notice or knowledge, when he buys a note, that it was made without consid- eration, he Ciinnot recover on it against the maker, unless it was an accommodation note, or was intended as a gift. Thus, if A supposes that a balance is due from Mm to B, and gives B his negotiable note for the amount, and afterwards discovers that the balance is the other way, B cannot recover of A ; nor can any third or moi'e distant indorsee who knoios these facts before buying the note. But if A gives B his note wholly without consideration, for the purpose of lending him his credit, or for the purpose of making him a gift to the amount of the note, and C buys the note with a full knowledge of the facts, he will nevertheless hold A, although B could not. If the note was bought honestly for a fair price, the buyer should recover its whole amount. Every promis- sory note imports a consideration ; that is, none, in the first place, need be proved ; but when want of consideration is relied on in defence, and evidence is given on one side and the other, the bur- den of proof is on the plaintiff to satisfy the jury that a considera- tion was given. If an indorser, sued by an indorsee, shows that the note was originally made in fraud, he may require the holder to prove that he paid consideration ; but if this be proved, he must pay the whole of the note, unless he was himself defrauded by the holder. And if an accommodation note be discounted in violation of the agreement of the party accommodated, the holder can still recover, provided he received the note in good faith, and for valuable con- sideration. 2. Of " Value received." — " Value received " is usually written, and therefore should be ; but is not necessary. If not written, it will be presumed by the law, or may be supplied by the plaintiff's proof If expressed, it may be denied by the defendant, and dis- proved. And if a special consideration be stated in the note, the defendant may prove that there was no consideration, or that the consideration was different. If " value received" be written in a note, it means received by the maker from the payee; if the note be payable to the bearer, it means received by the maker from the holder. In a bill, "value received" means that the value was received from the payee by the drawer. But if the bill be payable A CITIZEN OF THE UNITED STATES. 493 to the drawer's own order, then it means received by the acceptor from the drawer. 3. What the Consideration may be. — A valuable consideration may be either any gain or advantage to the promisor, or any loss or injury sustained by the promisee at the promisor's request. A pre- vious debt, or a fluctuating balance, or a debt due from a third per- son, might be a valuable consideration. So is a moral consideration, if founded upon a previous legal consideration ; as, where one promises to pay a debt barred by the statute of limitations, or by infancy. But a merely moral consideration, as one founded upon natural love and affection, or the relation of parent and child, is no legal consideration. No consideration is sufficient in law if it be illegal in its nature ; and it may be illegal because, first, it violates some positive law, as, for example, the Sunday law, or the law against usury. Secondly, because it violates religion or morality, as an agreement for future illicit cohabitation, or to let lodgings for purposes of prostitution, or an indecent wager; for any bill or note founded upon either of these would be void. Thirdly, if distinctly opposed to public policy, as an agreement in restraint of trade, or injurious to the revenue; or in restraint of marriage; or for procurement of mar- riage; or for suppressing evidence; or withdrawing a prosecution for felony or public misdemeanor. SECTION IV. THE RIGHTS AND DUTIES OF THE MAKER. The maker of a note or the acceptor of a bill is bound to pay the same at its maturity, and at any time thereafter, unless the action be barred by the statute of limitations, or he has some other defence under the general law of contracts. As between himself and the payee of the note or bill, he may make any defences which he could make on any debt arising from simple contract, as want or failure of consideration ; payment, in whole or in part ; set-off; accord and satisfaction ; or the like. The peculiar characteristics of negotiable paper do not begin to operate, so to speak, until the paper has passed into the hands of third parties. Then, the party liable on the note or bill can make none of these defences, unless the time or manner in which it came into possession of the holder lays him open to these defences. But the law on this subject may better be pi-esented in our next section. 494 TBE PROPERTY RIGHTS OF SECTION V. THE RIGHTS AND DUTIES OF THE HOLDER OF NEGOTI- ABLE PAPER. 1. What a Holder may do with a Bill or Note. — An indorsee has a right of action against all whose names are on the bill when he received it. And if one delivers a bill or note which he ought to indorse and does not, the holder has an action against him for not indorsing, or may proceed in a court of equity to compel him to indorse. If a bill comes back to a previous indorser, he may strike out the intermediate indorsements and sue in his own name, as indorsee ; but he has, in general, no remedy against the inter- mediate parties, because, if he made them pay as'indorsers to him, they would make him pay as indorser to them. If, however, the circumstances are such that they, if compelled to pay, would have no right against him as an indorser to them, as, for example, if he indorsed it " without recourse," then he may have a claim against them. The holder of a biU indorsed and deposited with Mm for collec- tion, or only as a trustee, can use it only in conformity with the trust. And if the indorsement express that it is to be collected for the indorser's use, or use any equivalent language, this is notice to any one who discounts it; and the party discounting the paper against this notice will be obliged to deliver the note, or pay its contents, if collected, to the indorser. Thus, Mr. Sigourney, a mer- chant in Boston, remitted to Mr. Williams, a London banker, for collection, a bill of exchange indorsed by Sigourney, and over his name was written, " Pay to Williams or order for my use."- Wil- liams had the bill discounted for his own benefit by his bankers, and failed ; and the English court held that the indorsement showed that the bill did not belong to Williams, and that the discounter's had no right to discount it for him ; and they were obliged to pay the amount of it to Sigourney. 2. Of a Transfer after Dishonor of STegotiable Paper, — Until the time has come when a note or bill is payable, everybody has a right to believe that it has not been paid, and will be paid at maturity, and may purchase it in that belief. But as soon as it is overdue, the date shows this, and every person must know that it is either paid, and so extinguished, or that it has not been paid, and therefore is dishonored, and that there may be good reasons why it was not paid, or gopd defences against it. He, therefore, A CITIZEN OF THE UNITED STATES. 41)5 now takes it at his own peril ; and therefore a holder who took the note after it became due is open to many of the defences which the promisor could have made against the party from whom the holder took it ; because, having notice that the bill or note is dishonored, he ought to have ascertained whether any, and, if so, what defence could be set up. So, too, if an indorsee takes the note or bill before it is due, but with notice or knowledge of fraud or other good defence which could be made against his indorser if he sued it, it is a general rule that the same defence may be made against him. A promissory note payable on demand is considered as intended to be a continuing security,'and therefore as not overdue, unless very old indeed, without some evidence of demand of payment and refusal. But it is not so with a check; for this should be presented without unreasonable delay. 3. Of Presentment for Acceptance. — It is most important to the holder of negotiable paper to know distinctly what his duties are in relation to presentment of a bill of exchange for acceptance, or of a bill or note for payment, and notice to others interested in case of non-acceptance or non-payment. It is always prudent for the holder of a bill to present it for acceptance without delay ; for, if it be accepted, he has new secu- rity ; if not, the former parties are immediately liable ; and it is but just to the drawer to give him as early an opportunity as may be to withdraw his funds or obtain indemnity from a debtor who will not honor his bills. And if a bill is payable at sight, or at a cer- tain period after sight, there is not only no right of action against anybody until presentment, but, if this be delayed beyond a reason- able time, the holder loses his remedy against all previous parties. And although the question of reasonable time is generally one only of law, yet, in this connection, it is treated as so far a question of fact, that it is submitted to the jury. There is no certain rule determining what is reasonable time in this respect. If a bill of exchange be payable on demand, it is not like a promissory note, but must be presented within a reasonable time, or the drawer will be discharged. A holder may put a bill payable after sight into circulation, without presenting it himself; and in that case, if a subsequent holder presents it, a longer delay in presentment would be allowed than if the first holder had kept it in his own possession. The presentment should be made during business hours ; but in this country they extend through the day and until evening, except- ino- in the case of banks. Any distinct usage established where the 490 TEE PROPERTY RIGHTS OF presentment is made would probably be received in evidence, and permitted to affect the question. Ill health, or other actual impediment without fault, may excuse delay on the part of the holder ; but the request of the drawer to the drawee not to accept does not excuse non-presentment for ac- ceptance. Presentment of a bill for acceptance should be made to the drawee himself, or to his agent authorized to accept. And when it is presented, the drawee may have a reasonable time to consider whether he will accept, during which time the holder is justified in leaving the bill with him; and this time would be as much as twentj'-four hours, unless the mail g'oes out before. But if the holder gives more than twenty-four hours for this purpose, or the mail goes out before, he should inform the previous parties of it. If the drawee has changed his residence, the holder should use due diligence to find him ; and what constitutes due or reasonable dili- gence is a question of fact for a jury. And if he be dead, the holder should ascertain who is his personal representati-?e, if he has one, and present the bill to him. If the bill be drawn upon the drawee at a particular place, it is regarded as dishonored if the drawee has absconded, so that the bill cannot be presented for acceptance at that place. When we come to speak of notice, it will be seen why these rules are important ; for a drawer is liable on the bill if the drawee does not accept, and it is reasonable that he should know at once if he is made liable by the drawee's refusal to accept, bo that he may save himself from loss if he can. 4. Of Presentment for Demand of Payment. — The next question relates to the duty of demanding payment ; and here the law is much the same in respect both to notes and to bills. The universal rule of the law-merchant is, that the indorsers of negotiable paper are supposed to agree to pay it only if the maker or previous indorsers do not, and provided due measures are taken by the holder to get it paid by those who ought, in the first place, to pay it. Every holder of negotiable paper can hold it as long as he likes, and not lose his claim against the maker of a note, or the ac- ceptor of a bill, unless he holds it more than six years, and the stat- ute of limitations bars his claim. The reason is, that the maker or acceptor promises directly, and not merely to pay if another does not. But every indorser of a note or bill, and every drawer of a bill, only promises to pay if a maker or acceptor or some previous indorser does not. If there is a bill of exchange with six indorsers, the last promises in law to pay it only if the acceptor, the drawer, and the five previous indorsers do not pay. He has therefore a right A CITIZEN OF TEE UNITED STATES. 497 that a demand according to law should be made against every one of these persons, and that their refusal to pay should be notified to him forthwith, so that he may secure himself if he can. 'And the law-merchant is very rigorous and precise in defining what demand should be made by the holder, and when and how demand should be made on every pri&r party, in order to hold any subsequent party; and a,lso as to what notice of the demand and refusal of tlie prior party should be given to any subsequent party to whom the holder looks for payment. A demand is sufficient if made at the usual resideuce or place of business of the payer, either of himself, or of an agent authorized to pay; and this authority may be inferred from the habit of paying, especially if the agent be a child, a wife, or a servant. The demand should not be made in the street, although a demand there would probably be held good, unless objected to at the time because made there. When a demand is made, the bill or note should be ex- hibited ; and if lost, a copy should be exhibited, although this is not absolutely necessary. And when the payer calls on the holder, and declares to him that he shall not pay, and desires him to give notice to the indorsers, this constitutes a demand and refusal, provided this declaration be made at the mattirity of the paper; but not if it was made before maturity, because the payer may change his intention. Bankruptcy or insolvency of the payer is no excuse for non- demand ; although the -shutting up of a bank may be regarded as a refiisal to all their creditors to pay their notes. Absconding of the payer is generally a sufficient excuse ; but if the payer has shut up his house, the holder must nevertheless inquire after him, and find him, if he can, by proper efforts. Even in case of absconding, it is always better to go through the foi-mality of making a demand at the payer's last residence or place of business ; and this is held neces- sary in some States. If the payer be dead, demand should be made at his house, unless he have personal representatives, and in that case, of them. And if the holder die, presentment should be made by his personal representatives ; that is, by his executor or administrator. If the drawer has no efifeets in the hands of the drawee, and has no arrangement or understanding which gives him a right to draw, non-presentation for payment is not a defence which he can make if sued on the bill. Impossibility of presenting a bill or note for payment, without the fault of the holder, as the actual loss of a bill, or the like, will excuse some delay in making a demand for payment ; but not more than the circumstances require. And the mere mistake of the holder 82 THE PROPERTY RIGHTS OF as to the time, place, person, or manner, is no excuse, because he has no right to make mistakes to the injury of other people. In this country, all negotiable paper payable at a time certain is entitled to grace, which here means three days' delay of payment, unless it be expressly stated and agreed that there shall be no grace; and a presentment for payment before the last day of grace is pre- mature, the note not being due until that day. If the last day of grace falls on a Sunday, or on a legal holiday, the note is due on the Saturday, or other day before the holiday. But if there be no grace, and the note falls due on a Sunday, or other holiday, it is not payable until the next day. Generally, if a bill or note be payable in or after a certain num- ber of days from date, sight, or demand, in counting these days, the day of date, sight, or demand is excluded, and the day on which it falls due included. And the law would supply the word "/rowi," if the word were not used. Thus, a note dated January 1, and payable in " twenty days," would be held payable in twenty days (and three days' grace) after the day of the date ; that is, on the 24th. If a note is made payable in one or more, months, this means calen- dar months, whether shorter or longer. If made on the 13th of December, and payable in two months, it is payable on the 13th of February, and grace ; that is, on the 16th. But if so many days are named, they must be counted, whether they are more or less than a month. Thus, if the above note were payable in sixty days, it would be due on the 11th and grace, or on thfe 14th of February. If dated 13th January, and payable in sixty days, it would be due on the 14th of March with grace, or on the 17th. If dated on the 28th of October, or the 29th, or the SOth, or the 81st, and is pay- able in four months, it is in either case (the next year not being leap year) payable on the 28th of February, and with grace, on the 3d of March. And notes dated on the 31st of any rapnth, payable in months, and falling due in a month of but thirty days, are due on the 30th, with grace. Although payment must be demanded promptly, that is, on the day on which it is due, it need not be done instantly ; a holder has all the business part of the day in which the bill or note falls due to make his demand in. Bills and notes payable on demand should be presented for pay- ment within a reasonable time. If said to be " on interest," this strengthens the indication that they were intended to remain for a time unpaid and undemanded. But to hold indorsers, they should still be presented within whatever time circumstances may make a reasonable time ; and this is such' a time as the interests and safety of all concerned may require ; and it may be a few days, or one A CITIZEN OF THE UNITED STATES. 499 or two weeks. A bill or note in which no time of payment is expressed is held to be payable on demand ; and evidence to prove it otherwise is inadmissible. The holder of a check should present it at once ; for the drawer has a right to expect that he will ; it should, therefore, be presented, or forwarded for presentment, in the course of the day following that in which it was received, or, upon failure of the bank, the holder will lose the remedy he would otherwise have had against the person from whom he receives it. If the drawer of the check had no funds, he is liable always. Ev6ry demand of payment should he made at the proper- place, which is either the place of residence or of business of the payer, and within the proper hours of business. If made at a bank after hours of business, if the officers are there, and refuse payment for want of funds, the demand is sufficient. A note payable at a particular place should be demanded at that place ; and a bill drawn payable at a particular place should be demanded there, in order to charge the drawer of a bill, and the indorsers of a bill or note. But in this country an action may be maintained against the maker or acceptor without such demand; but the defendant may discharge himself of damages and costs beyond the amount of the paper, by showing that he was ready at that place with funds. If a note is payable at any of several different places, presentment at any one of them will be sufficient. If a bill which is drawn payable generally be accepted payable at a particular place, the holder may and should so far regard this as non-acceptance that he should protest and give notice. But if this limited accept- ance is assented to and received, it must be complied with by the holder, and the bill must be presented for payment at that place, or the drawer and indorsers are discharged. If payable at a banker's, or at the house or counting-room of any person, and such banker or person becomes the owner at maturity, this is demand enough ; and if there are no funds deposited with him for the payment, this is refusal enough. If any house be designated, a presentment to any person there, or at the door if the house be shut up, is enough. If this direction be not in the body of the note, but added at the close, or elsewhere, as a memorandum, it is not part of the con- tract, and should not be attended to. If the payer has changed his residence, he should be sought for with due diligence ; and, if he has absconded, it is better to make the demand at his last place of residence or business. Where a biU or note is not presented for payment, or not pre- sented at the time, or to the person, or in the place, or in the way, 500 THE PROPERTY RIGHTS OF required by law, all parties but the 'acceptor or maker are dis- chargedj for the reasons before stated. 5. Of Protest and Notice. — If a bill of exchange be not accepted when properly presented for that purpose, or if a bill or note, when properly presented for payment, be not paid, the holder has a further duty to perform to all who are responsible for payment. In case of non-payment of a foreign bill, there should be a regular protest by a public notary ; but this is not strictly necessary in the case of an inland bill, or a promissory note, whether foreign or inland. But in practice, all bills if not accepted, and all bills and notes if un- paid, are protested. By a foreign bill is meant a bill drawn in one State or country, and payable in another But notice of non-pay- ment should be given to all antecedent parties, equally, and in the same way, in the case of both bills and notes. The demand and protest must be made according to the laws of the place where the bill is payable. It should be made by a notary public, who should present the bill himself; but, if there be no notary public in that place or within reasonable reach, it may be made by any respectable inhabitant in the presence of witnesses. The protest should be noted on the day of demand and refusal, and may be filled up afterwards, even so late as at the trial. The loss of a bill is not a sufficient excuse for not protesting it. But a subsequent promise to pay by a drawer or indorser is held to imply, or be equal to, a previous protest and notice to him. The notarial seal is, of itself, evidence of the dishonor of a foreign bill, but not of an inland bill. And no collateral statement in the certificate is evidence of the fact therein stated ; thus the statement by a notary, that the drawee refused to accept or pay because he had no funds of the drawer, is no evidence of the absence of such funds. Notice must be given even to one who has knowledge. No par- ticular form is necessary ; it may be in writing, or oral ; all that is ■ absolutely essential is, that it should designate the note or bill with sufficient distinctness, and state that it has been dishonored, and also that the party notified is looked to for payment ; but it has beeft held that the notice to the party bound to pay, when given by the immediate holder of the bill, sufficiently implies that he is looked to. Notice of protest for non-payment is sufficient notice to indorsers of demand and refusal. How distinctly the note or bill should be described cannot be precisely defined. It is enough if there be no such looseness, ambiguity, or misdescription as might mislead a man of ordinary intelligence ; and if the intention was to A CITIZEN OF THE UNITED STATES. 501 describe the true note, and the party notified was not actually mis- led, this would always be enough. The notice need not state for whom payment is demanded, nor where the note is lying ; and even a misstatement in this respect may not be material if it do not actually mislead. "So copy of the protest need be sent to iadorsers ; but informa- tion of the protest should be given. If the letter be properly put into the post-office, any miscarriage of the m.ail does not afiect the party giving notice. The address should be sufficiently specific. Only the surname, — as " Mr. Ames," .^ esj)ecially if sent to a large city, would not, in general, be enough. If a letter, however generally directed, can be shown to have reached the right person at the right. time, it is sulfioient. The postmarks are strong evidence that the letter was mailed at the very time these marks indicate ; but this evidence may be rebutted, that is, contradicted. A notice not only may, but should, be sent by the public post. It may, however, be sent by a private messenger ; but is not suffi- cient if it do not arrive until after the time at which it would have arrived by mail. It may be sent to the town where the party resides, or to another town, or to a more distant post-office, if it is clear that he may thereby receive the notice earlier. And if the notice is sent to what the sender deems, after due diligence, the nearest post-office, this is enough. If the parties live in the same town, notice should not be sent by mail. The notice should be sent either to the place of business or to the residence of the party notified. But if one directs a notice to be sent to himself elsewhere than at home, it may be so sent, and bind not only him, but prior parties, although time is lost by so sending it. The notice of lion-payment should be sent within reasonable time ; and in respect to negotiable paper, the law-merchant defines this within very narrow limits. If the parties live in the same town, notice must be given or sent so that the party to whom it is sent may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in difierent places, the notice must be sent as soon as by the first practicable mail of the next day, or the next mail, if there be none on the next day. Each party receiving notice has a day, or until the next post after the day in which he receives it, before he is obliged to send the notice forward. Thus, if there be six indorsers, and the note is due on the 10th of May, in New York, and is then demanded and un- paid, the holder nay send it by any mail which leaves New York 502 TEE PROPERTY RIGHTS OF on the 11th of May, to the last indorser, wherever he liyes; and that indorser may send it to the indorser immediately before him, by any, mail on the day after he receives it ; and so may each of the parties receiving notice ; and all the parties to whom notice is sent in this way will be held. So, too, a banker, with whom the paper is deposited for collection, is considered a holder, and entitled to a day- to give notice to the depositor, who then has a day for his notice to antecedent parties. The different branches of one establishment have been held distinct holders for this purpose, and each to be entitled to a day. Neither Sunday nor any legal holiday is to be computed in reck- oning the time within which notice must be given. There is no presumption of notice : and the plaintiff must prove that it was given, and was sufficient. Thus, proving that it was given in "two or three days" is insufficient, it two would have been right, but three not. Notice should be given only by a party to the instrument, who is liable upon it, and not by a stranger ; and it has been held that notice could not be given by a first indorser, who, not having been notified, was not himself liable. A notice by any party liable will operate to the beneBt of all antecedent or subsequent parties ; that is, will hold them all to the original holder of the note, if the origi- nal holder gave notice properly to the party nearest to him. The notice may be given by any authorized agent of a party who could himself give notice. Notice must be given to every antecedent party who is to be held. And we have seen that this may be given by a holder to the first party liable, and by him to the next, &c. But the holder may always give notice to all antecedent parties ; and it is always pru- dent, and, in this country, usual, to do so ; for the holder loses all remedy against all those who are discharged by the failure of any one receiving notice to transmit it properly. But if a holder under- takes to notify all the antecedent parties, he must notify all as soon as he was obliged to notify the party nearest to him ; that is, the day after the dishonor of the note. We mean by this, that every party has a da]/; so that, if there be six indorsers, if the first indorser is notified on the seventh day from the dishonor, it is enough if the holder took his day to notify the sixth indorser, and that indorser his day to notify the fifth, and so on. But the holder has nobody's day but his own ; and if he undertakes to notify all the parties, he must notify them all on the first day after the non-payment. If the holder notifies only the last indorser, and that indorser neglects to notify previous indorsers, the holder can hold only the indorser whom he notified. A CITIZEN OF THE UNITED STATES. 508 Notice may be given personally to a party, or to his agent au- thorized to receive notice, or left in writing at his home or [jlace of business. If the party to be notified is dead, notice should be given to his personal representatives. A notice addressed to tlie "legal representative of," &c., and sent to the town in which the deceased party resided at his death, has been held sufficient. But a notice addressed to the party himself, when known to be dead, or to " the estate of," &c., would not be of itself sufficient, but might become so with evidence that the administrator or executor actually received the notice. If two or more^parties are jointly liable on a bill as partners, notice to one is enough ; but, if the indorsers are not partners, notice should be given to each.. One transferring by delivery, without indorsement, a note or bill payable to bearer, is not generally entitled to notice of non-payment, because, generally, he is not liable to pay such paper ; but if the cir- cumstances of the case are such as to make him liable, then he must have notice, but is entitled not to the exact notice of an indorser, but only to such reasonable notice as is due to a guai-antor. If, for instance, the paper was transferred as security, or even in payment of a pre-existing debt, this debt revives if the bill or note be dishon- ored ; and therefore there must be notice given of the dishonor. In general, a guarantor of a bill or note, or debt, is not entitled to such strict and exact notice as an indorser is entitled to, but only to such notice as shall save him from actual injury; and he cannot make the want of notice his defence, unless he can show that the notice was unreasonably withheld or delayed, and that he has actu- ally sustained injury from such delay or want of notice. If an in- dorser give also a bond, or his own note, to pay the debt, he is not discharged from his bond or note by want of notice. In general, all parties to negotiable paper, who are entitled to notice, are discharged by want of notice. The law presumes them to be injured, and does not put them to proof. The right to notice may be waived by any agreement to that eflect prior to the maturity of the paper. It is quite common for an indorser to write, " I waive notice," or " I waive demand," or some words to this eifect. It should, however, be remembered that these rights are independent, and one does not imply the other. A waiver of notice of non-payment does not imply a waiver of demand ; there- fore, if an indorser writes on the note, " I waive notice," still he will be dischat'ged if there be not a due demand on the maker. And it has been held that a waiver of protest is a waiver of demand, but not of notice. So if a drawer countermands his order, the bill should still be presented, but notice of dishonor need not be given to the 504 ' THE PROPERTY RIGHTS OF drawer. Or, if a drawer has no funds, and nothing equivalent to funds, in the drawee's hands, and would have no remedy against the drawee or any one else, as the drawer cannot be pi-ejudiced by want of notice, it is not necessary to give him notice. But the indorser must still be notified ; and a drawer for the accommodation of the acceptor is entitled to notice, because he might have a claim upon the acceptor. Actual ignorance of a party's residence justifies the delay neces- sary to find it out, and no more ; and after it is discovered, the notir fier has the usual time. Death or severe illness of the notifier or his agent is an excuse for delay ; but the death, bankruptcy, or insolvency of the drawee of a bill is no excuse. As the right to notice may be waived before maturity, so the want of notice may be cured afterwards by an express promise to pay ; and an acknowledgment of liability, or a payment in part, is evi- dence, but not conclusive evidence, of notice ; the jury may draw this conclusion from part payment, but are not hound to, even if the evidence be not rebutted. If the promise be conditional, and the condition be not complied with, the promise has been held to be still evidence of notice. Nor is it sufiicient to avoid such promise that it was made in ignorance of the law ; but it is void if made in igno- rance of the fact of non-notice. SECTION VI, THE RIGHTS AND DUTIES OF THE INDORSER. Only a note or bill payable to a payee or order is, strictly speaking, subject to indorsement. Those who write their names on the back of any note or bill are indorsers in one sense, and are sometimes called so, but are not meant in the law-merchant by the word " indorsers." The payee of a negotiable bill or note — whether he be also maker or not ^- may indorse it, and afterwards any person, or any number of persons, may indorse it. The maker promises to pay to the payee or his order ; and the indorsement is an order on the maker to pay the indorsee, and the maker's promise is then to pay the note to him. If the original promise was to the payee or order, this " or order," which is the negotiable element, passes over to the indorsee, though not written in the indorsement, and the indorsee may indorse, and so may his indorsee, indefinitely. Each indorser, by his indorsement, does two things : first, he orders the antecedent parties to pay to his indorsee ; and next, ha engages with his indorsee that, if Ihey do not pay, he will. A CITIZEN OF THE UNITED STATES. 605 If the words " to order," or " to bearer," are omitted acciden- tally, and by mistake, they may be afterwards inserted without injury to the bill or note ; and whether a bill or note is negotia- ble or not, is a question of law. By the law-merchant, bills and notes which are payable to order can be effectually and fully transferred only by indorse- ment. This indorsement may be in blank or in full. The writing of the name of a payee, -^ either the original payee or an indorsee., -^with nothiug more, is an indorsement in blank; and a blank indorsement makes the bill or note transfei-able by delivery, in like manner as if it had been originally payable to bearer. After a note has been indorsed by a payee, any person may write his name on the note under that of the payee, and be held as indorser, — be- cause any subsequent holder may write over the name of the first indorser a direction to pay the note to the next signer, and this makes the next signer an indorsee, and so gives him a right to in- dorse ; and he or any holder may write over his name an order to pay the holder, or anybody else. If the indorsement consist not only of the name, but of an order above the name, to pay the note to some specified person, then it is an indorsement in full, and the note can be paid to no one else unless that person indorses it ; nor can the property in it be fully transferred, except by his indorscr ment ; and his indorsee may again indorse it in blank or in full. If the indorsement is, pay to A B only, or in equivalent , words, A B is indorsee, but cannot indorse it over. Any holder for value of a bill or note indorsed in blank, whether: he be the first indorsee or one to whom it has come through many hands, may write over any name indorsed an order to pay the con^ tents to himself; and this makes it a special indorsement, or an indorsement in full. This is often done for security ; that is, to guard against the loss of the note by accident or theft. For the rule of law is, that negotiable paper transferable by delivery (whether payable to bearer or indorsed in blank) is, like money, the property of whoever receives it in good faith. The same rule has been ex- tended in England to exchequer bills, to public bonds payable to bearer, and to East India bonds ; and we think it would extend here to our railroad and other coi-poration bonds, and, perhaps, to all such instruments as are payable to bearer, whether sealed or not, and what- ever they may be called. If one has such an instrument, and it is stolen, and the thief passes it for consideration to a bona fide holder, this holder acquires a legal right to it, because the property and possession go together. But if the bill or note be specially indorsed, no person can acquire any property in it, except by the indorsement of the special indorsee. 506 THE PROPERTY RIGHTS OF The written transfer of negotiable paper is called an indorse- ment, because it is almost always written on the back of the note ; but it has its full legal effect if written on the face. Joint payees of a biU or note, who are not partners, mnst all join in an indorsement. An indorser may always prevent his own responsibility by writing " without recourse," or other equivalent words, over his indorsement ; and any bargain between the indorser and indorsee, written or oral, that the indorser shall not be sued, is available by him against that indorsee ; but he cannot make this defence against subsequent indorsees who had no notice of the bargain before they took the note. Every indorsement and acceptance admits conclusively the genuineness of the signature of every party who has put his name upon the bill previously in fact, and who is also previous in order. By this is meant, that if an indorser — say a third indorser — is sued, he cannot defend himself by saying that the names of the maker and first and second indorsers, or either of them, were forged; because by indorsing it himself he gives his indorsee a right to be- lieve that the previous signatures were genuine. And an acceptor cannot say that his drawers' name is forged; but he may say that an indorsement which was on the bill when he accepted it was forged ; because an indorsement of a bill comes properly and in order of law after acceptance. If a holder strike out an indorsement by mistake, he may re- store it ; if on purpose, the indorser is permanently discharged. A holder may bring his action against any prior indorser, either by making title through all the subsequent indorsements, or by filling any blank indorsement specially to himself, and suing accordingly ; but then he invalidates all the indorsements which are subsequent to that which he has made special to himself. One may make a note or bill payable to Ms own order, and indorse it in blank ; and this is now very common in our com- mercial cities, because the holder of such a bill or note can transfer it by delivery, and it needs not his indorsement to make it negotia- ble further. A note, to the maker's own order, if not indorsed by him, is, strictly speaking, of no force against him. But there is some disposition in the courts to say that a holder of such a note may sue the maker as if the note were to bearer. A transfer by delivery, without indorsement, of a biU or note payable to bearer, or indorsed in blank, does not generally make the transferer responsible to the transferee for the payment of the instrument. Nor has the transferee a right to fall back, in case of non-payment, upon the transferer for the original consideration A CITIZEN OF THE UNITED STATES. 507 of the transfer, if the bill were transferred in good faith, in ex- change for money or goods ; for such transfer would be held to be a sale of the bill or note, and the purchaser takes it with all risk. An indorsement may be made on the paper before the bill oi note is drawn ; and such indorsement, says Lord Mansfield, " is a. letter of credit for an indefinite sum, and it will not lie in the in- dorser's mouth to say that the indorsements were not regular." The same rule applies to an acceptance on blank paper. So an indorse- ment may be made after or before acceptance, though strictly proper only after. A bill or note, once paid at or after maturity, ceases to be negotiable, in reference to all who had been discharged by the pay- ment. If issued again, it is like a new note without their names. If a bill or note is paid before it is due, it is valid in the hands of a subsequent bonajide indorsee, and must be paid to hirn. A portion of a negotiable bill or note cannot be transferred so as to give the transferee a right of action for that portion in his own name. But if the bill or note be partly paid, it may be indorsed over for the balance. After tlie death of a holder of a bill or note, Ms executor or ad- ministrator may transfer it by his indorsement. The husband who acquires a right to a bill or a note which was given to the wife, either before or after marriage, may indorse it. If the rule, that the same party cannot be plaintiff and de- fendant, prevents the action, as where A, B, & Co. hold the note of A, C, & Co., so that if a suit were brought A would be one of the plaintiffs and one of the defendants also, which cannot be, A, B, & Co. may indorse the note to D, who may then sue A, C, «fc Co. SECTION vn. THE KIGHTS AND DUTIES OF THE ACCEPTOR. Acceptance applies to bills, and not to notes. It is an engage- ment of the person on whom the bill is drawn to pay it according to its tenor. The usual way of entering into this agreement, or of ac- cepting, is by the drawee's writing his name across the face of the bill, and writing over it the word " accepted." But any other word of equivalent meaning may be used ; and it may be written else- where, and it need not be signed, or the drawee's name alone on the bill may be enough. A written promise to accept a future bill, if it distinctly define and describe that very bill, has been held in this 508 THE PROPERTY RIGHTS OF country as the equivalent of an acceptance, if the bill was taken on the credit of such promise. A bauker is liable to Ms depositor without acceptance of Ms checks, if he refuses to pay checks drawn against funds in his hands. If a bill is accepted by a part only of those jointly responsible, or joint drawees, it may be treated by the holder as dishonored ; but if not so treated, the parties accepting will be bound. An acceptance may be made after maturity, and will be treated as an acceptance to pay on demand. The acceptance may be cancelled by the holder ; and if this can- celling bo voluntary and intended, it is complete and eSfectual ; but if made by mistake, by him or other parties, and this mistake can be shown, the acceptor is not discharged. And if the cancelling be by a third party, it is for the jury to say whether the holder authorized or assented to it. If a qualified acceptance be offered, the holder may receive or refase it. If he refuses it, he may treat the bill as dishonored ; if he receives it, he should notify antecedent parties, and obtain their consent, without which they are not liable. Bat if he protests the bill as dishonored, for this reason, he cannot hold the acceptor upon his qualified acceptance. A bill drawn on one incompetent to contract, as from infancy, marriage, or lunacy, may be treated by the holder as dishonored. A bill can be accepted only by the drawee, — in person or by Ms authorized agent, — or by some one who accepts for honor. SECTION vm. ACCBPTANCK OR PAYJttENT FOR HONOR. If a bill be protested for non-acceptance or for non-payment, any person may accept it, or pay it for the honor either of the drawer or of any indorser. This he usually does by going with the bill before the notary public who protested the bill, and there declaring that he accepts or pays the bill /or honor ; and he should designate for whose honor he accepts, or pays it, at the time, before the notai-y public, and it should be noted by him. A general acceptance supra protest (which is the phrase used both by merchants and in law, meaning upon or after protest) for honor, is taken to be for honor of the drawer. The drawee himself, refusing to accept it generally, may thus accept for the honor of the drawer or an indorser. And after a bill is accepted for honor of one party, it may be accepted by another person for honor of another A CITIZEN OF THE UNITED STATES. 509 party. And an acceptance for honor may be made at the interven- tion and request of the drawee. No holder is obliged to receive an acceptance for honor ; he may refuse it wholly. If he receive it, he should, at the maturity of the bill, present it for payment to the drawee, who may have been sup- plied with funds in the mean time. If not paid, the bill should be protested for non-payment, and then presented for payment to the acceptor for honor. The undertaking of the acceptor for honor is collateral only, being an engagement to pay if the drawee does not. It can only be made for some party who will certainly be liable if the bill be not paid ; because, by an acceptance or by a payment, properly made, for honor, supra protest, such acceptor or payer acquires an absolute claim against the party for whom he accepts or pays, and against all parties to the bill antecedent to him, for all his lawful costs, pay- ments, and damages, by reason of such acceptance or payment. This is an entire exception to the rule that no person can make him- self the creditor of another without the request or consent of that other ; but it is an exception established by the law-merchant. The reason why bills of exchange are sometimes accepted or paid for honor is to save the party for whose honor this is done from the very heavy damages of a protested bill. In many of our States it is a common practice to give a promis- sory note, and include in it a confession of Judgment, for the amount. A suit may then be brought on the note as soon as it is due and unpaid, and a judgment taken out at once without the delay of a trial; and execution may issue on the judgment. Sometimes by the same note the promisor waives or renounces the benefit or pro- tection of all exemption laws; and then the execution may be satisfied from any of his property that the sheriflT can find. (156.) FORM OF A JUDGMENT NOTE WITH WAIVER. $ 18 (Time.) after date, for value received, promise to pay or bearer, dollars, with interest, and without defalcation or stay of execution. And do hereby confess judgment for the above sum, with interest and costs of suit, a release of all errors, and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or personal property from levy and sale. (Signature.") 510 THE PROPBUTY RIGHTS OF Sometimes, in addition to the above, tlie same note lias below it a power of attorney, authorizing the attorney whose name is put into the blank left for that purpose to appear in court for ' the promisor, and confess judgment. Sometimes the power is given to an attorney whom the parties agree upon, and then no other attor- ney can confess the judgment. It is, however, far more usual, and better, to insert the name of an attorney, and add, as in the follow- ing form, " or any attorney of any court of record." (157.) JUDGMENT NOTE WITH WAITER, AND POWER OF ATTORNEY. « 186 after date the subscriber of coimty of State of promise to pay to the National Bank of or order dollars, at their office, Talue received, with interest, at per cent per annum after due. Due Know all men by these peesbstts. That the subscriber justly indebted to the National Bank of upon a certain promissory note, bearing even date herewith, for the sum of dollars, with interest, at the rate of per cent per annum, after due, and due day after date. Now, THEREFOKE, In Consideration of the premises do hereby make, constitute, and appoint or any attorney of any court of record, to be true and lawful attorney, irrevocably for and in name , place, and stead, to appear in any court of record, in term time or in vacation, in any of the States or Territories of the United States, at any time after the said note becomes due, to waive the service of process, and confess a judgment in favor of the said National Bank of or their assigns or as- signees, upon the said note for the above sum and interest thereon, to the day of the entry of the said judgment, together with costs, and twenty dollars, attorney's fees, and also to file a cognovit for the amount thereof, with an agreement therein that no writ of error or appeal shall be prose- cuted upon the judgment entered by virtue hereof, nor any bill in equity filed to interfere in any manner with the operation of said judgment, and to release all errors that may intervene in the entering up of said judg- ment, or issuing the execution thereon; and also to waive all benefit of advantage to which may be entitled by virtue of any home- stead or other exemption law, now, or hereafter in force, in this or any other State or Territory, where judgment may be entered by virtue hereof. A CITIZEN OF TBE UNITED STATES. SU Hereby ratifying and confirming all that said attorney may do by virtue hereof. AViTXESS hand and seal, this day of A.D. 186 In presence of (^Signature.) {Seal.) Sometimes the note is followed on the same paper by a power to confess judgment, and a waiver of all right of exemption ; both the power and the waiver extending beyond the above-written note, and covering other notes and bonds and other evidence of debt. (158.) JUDGMENT NOTE WITH FULLER WAIVER, AND POWER OF ATTORNEY. $ 18 for value received, promise to pay to the order of the sum of dollars, -with interest, in (time). {Signature.) Know all men bt these presents, That whereas, the subscriber, now justly indebted to upon a certain promissory note, bearing even date herewith, for the sum of dollars, and cents, made payable to the order of the said and due and may fi-om time to time hereafter become further or otherwise justly indebted to the said upon bonds, promis- sory notes, due bills, and other written evidences of debt, made, or to be made, indorsed or accepted by and held or owned by the said assignee or assignees hereof. Now, therefore, In consideration of the premises, and of the sum of one dollar to paid by the said the receipt whereof is hereby acknowledged, do hereby make, constitute, and appoint or any attorney of any court of record, to be tnie and lawful attorney, irrevocable, for and in name , place , and stead, to appear in and before any court of record, either in term time or in vacation, in any of the States or Territories oi the United States, at any time after the of said note, or ol any such bond, promissory note, due bill, or other written evidence of debt, so already made or to be made, indorsed, or accepted by as aioresaid, respectively, to waive service of process, and confess a judgment in favor of the said executors, administrators, assignee, or assign- ees, or the legal holder or holders of said note or of any one or more of such bonds, promissory notes, due bills, or other written evidences of debt, as aforesaid, for so much money as shall by the same appear to be due or owing thereon, with interest thereon according to the tenor and efEect thereof respectively, together with costs; also, for dollars, attorney's fees, to be added to the amount due or owing on entering up 612 TBE PROPERTY RIGHTS OP judgment; also, to file a cognovit for the amount that may be so due or owing/ including attorney's fees as aforesaid, with an agreement therein that no writ of error or appeal shall be prosecuted upon the judgment entered up by virtue hereof, nor any bill in equity filed to restrain or in any manner interfere With the operation of said judgment, or any execu- tion issued or to be issued thereon, and to release all errol's that may inter- vene in the entering up o£ any such judgment or issuing any execution thereon, and to consent, stipulate, and agree that any execution issued or to be issued upon such judgment, may be immediately levied upon, and satisfied out of any personal property which may have or own, and to waive and relinquish all right to have per- sonal property last taken and levied upon to satisfy such execution, and also to consent that execution may issue upon 'any such judgment immedi- ately. Hereby ratifying and confirming all that said attorney may do by virtue hereof. And, in consideration of the premises, do hereby stipulate, covenant, and agree with the said executors, administrators, and with the assignee, assignees, or the legal holder or holders of said note, or of any one or more of such bonds, promissory notes, due bills, or other written evidences of debt as aforesaid, that any execution so issued or to be issued as aforesaid, may first be levied upon and satisfied out of any personal property which may have or own, hereby expressly waiving all right to have personal property last taken and levied upon to satisfy such execution. Witness hand and seal , this day of A.D. 18 (^Signature). (Sea/.) In presence of CHAPTER XIX. AGEKCY. SECTION I. AGENCY IX GENERAL. The relation of principal and agent implies that the principal acts by and through the agent, so that the acts in fact of the agent are the acts in law of the principal ; and only when one is authorized by another to act for him in this way, and to this extent, is he an agent. One who is disqualified from contracting on his own account may act as the agent of another ; thus infants, married women, and aliens may act as agents for others for many purposes. A CiTlZEN OF TEE UNITED STATES. 513 A principal is responsible for the acts of Ms agent, not only when he has actually given full authority to the agent thus to represent and act for him, but when he has, by his words, or his acts, or both, caused or permitted the person with whom the agent deals to be- lieve him to be clothed with his authority. And a man may be thus held as a principal, either because he has in some way authorized aV, persons to believe that he has constituted some other man his agent, or because he has authorized only the party dealing with the supposed agent to so believe. For all responsibility of a principal for the acts of an dgent rests upon two grounds, which are com- monly united, but either of which alone is sufficient : one, the giving of actual authority ; the other, such appearing to give authority as justifies those who deal with the supposed agent in believing that tliis authority was given him. A general agent is one authorized to represent his principal in all his business, or in all his business of a pai-ticular kind. A partic- ular agent is one authorized to do only a specific thing or a few specified things. It is not always easy to discriminate between these ; but it is often important, by reason of the rule, that the authority of a general agent is measured by the usual scope and character of the business he is empowered to transact. By appoint- ing him to do that business, the principal is considered as saying to the world that his agent has all the authority necessary to the doing of it in the usual way. And if the agent transcends his actual au- thority, but does not go beyond the natural and usual scope of the business, the principal is bound, unless the party with whom the general agent dealt knew that the agent exceeded his authority. For if an agent does only what is natural and usual in transacting busi- ness for his principal, and yet goes beyond the limits prescribed by him, it is obvious that the principal must have put particular and unusual limitations to his authority; and these cannot affect the rights' of a third party who deals with the agent in ignorance of these limitations. But, on the other hand, the rule is, that, if an agent who is specially authorized to do a specific thing exceeds his authority, the principal is not bound ; because the party dealing with such agent must inquire for himself, and at his own peril, into the extent and limits of the authority given to the agent. Here, how- ever, as before, if the party dealing with the agent, and inquii-ing, as he should, into his authority, has sufficient evidence of this authority fuinished to him by the principal, and, in his dealings with the agent, acts within the limits of the authority thus proved, he cannot be affected by any reservations and limitations made secretly by the principal, and wholly unknown to the person dealing with the agent. 33 514 THE PROPERTY RIGHTS OF SECTION II. HOW AUTHORITY MAY BE GIVEN TO AN AGENT. It may be given under seal, or in writing without seal, or orally ; if given by a written instrument, this instrument is called a power of attorney, of which we shall give various forms at the close of this chapter. An oral or written appointment not under seal authorizes the agent to make a written contract, but not to execute instruments under seal. But an instrument under seal, signed and sealed in the principal's presence, and by his request and authority, will be re- garded as the pi'incipal's deed, made by himself. One employed by another to act for him in the usual trade or business of the agent, as auctioneer, broker, or the like, acquires thereby authority to do all that is necessary or usual in that business. And if a person puts his goods into the custody of another whose ordinary and usual business it is to sell such goods, he authorizes the whole world to believe that this person has them for sale ; and any person buying them honestly, in this belief, would hold them. Therefore, if fraudulent by-bidding be procured or permitted by the auctioneer, even without the knowledge of the ow:ner of the goods, the owner is answerable for this fraud of his agent, and the buyer has a right to i-efuse to take the goods. So neither party is bound until the agreement of sale is completed. Therefore the auctioneer may withdraw any article, and a bidder may withdraw any bid, until the article is " knocked down," but not afterwards ; for then the sale is completed, and the property in^(or ownership of) the article passes to the buyer. If one is repeatedly employed to do certain things, — as a wife or a son to sign bills or receipts ; or a domestic servant to make pur- chases; or a merchant or broker to sign policies, and the liks, — in all these cases, one dealing with the person thus usually employed is justified in believing him authorized to do those things with the assent and approbation of his employer, and in the same way in which he has done them ; but not in any other way. Thus, if a ser- vant is usually employed to buy, but always for cash, this implies no authority to buy on credit. An agency may be confirmed and established, and in fact created, by a subsequent adoption and ratification ; and a ratification relates back to the original transaction. A corporation is bound by the ratification of an agent's acts,, in the same manner as an individual would be. But no ratification is effectual to bind the principal unless made by the principal with a knowledge of all the material A CITIZEN OF THE UNITED STATES. 516 facts. And there can be ratification only where the act is done hy one purporting to be an agent, or by an assumed authority. Gen- erally, one who receives and holds a beneficial result of the act of another as his agent, is not permitted to deny such agency ; and in some cases this is extended even to acts of such agent under seal. Thus, if an agent sell under seal property of a supposed princi- pal, an individual or a corporation, and receive payment, and hand this over to the principal, if the principal could show that the agent had no authority, he might av^l the sale, and recover the property ; but he could not do this and also hold the money paid for it. And if one, knowing that another has acted as his agent, does not disa- vow the authority as soon as he conveniently can, buf lies by and permits a person to go on and deal with the supposed agent, or to lose an opportunity of indemnifying himself, this is an adoption and con- firmation of the acts of the agent. Nor can a supposed principal adopt a part for his own benefit, and repudiate the rest of the sup- posed agency ; he must adopt the whole, or none. If an agent makes a sale, and Ms principal ratifies the sale, he thereby ratifies the agent's representations made at the time of the sale and in relation to it, and is bound by them. The whole subject of mercantile agency is influenced and gov- erned by mercantile usage. Thus, as to the difierence between factors and brokers, the law adopts a distinction usual among merchants, although it may not always be regarded by them. A factor is a mercantile agent for sales and purchases, who has possession of the goods ; a broker is such agent, but without possession of the goods. Hence, a factor may act for his principal, and yet in his own name, because the actual owner, by delivering to him the goods, gives to him the appearance of an owner ; but a broker must act only in the name of his principal. A purchaser of goods from a factor may set off against the price a debt due from the factor, unless he buys the goods knowing that they are another's; not so, if the purchaser buy from a broker. Again, a factor has a lien on the goods for his claims against his principal ; but a broker generally has not. One may be a factor as to all rights and duties, who is called a broker; as an exchange-broker, who has notes for sale on discount, certificates of stock, &c., delivered into his possession ; and such broker, being actually a factor, would have a lien on the policies of insurance or other documents held by him for his commissions and charges about those documents. A cashier of a bank, or other of&cial person, may be an agent for those whose oflBcer he is, or for others who enrnlov him. TTp h^i^ 516 THE PROPERTY RIGHTS OF "withoxit special gift, all the authority necessary or usaal in the trans- action of his business. But he cannot bind his employers by any unusual or illegal contract made with their customers. The same law, and the same qualifications, apply to the case of officers of rail- road companies, or other corporations. Their acts bind their em- ployers or companies, so far as they have authorized those acts, or have justified those who dealt with the officers in believing that the officers possessed such authority ; but no further. Nor wonld the acts or permissions of such officer have any validity if they violate his official nifties, and are certainly and ob- viously beyond his power, even if sanctioned by his directors ; as if the cashier of a bank permitted overdrawing, or the like. And all pai'ties who deal with such agent in such a transaction would be unable to hold the principal ; for the law would consider thera as knowing that the officer could have no right to do such things. Therefore, the general ag^nt of a corporation, clothed with a certain power by the charter or the lawful acts of the corporation, may use that power for an authorized, or even a prohibited purpose, in his dealings with an innocent third party, and render the corpora- tion liable for his acts, if they be really within the power given him, or seem to be within it, by the fault or act of the corporation ; but ■not otherwise. Thus, a treasurer of a corporation has no power to release a claim which belongs to the corporation. SECTION m. EXTENT AND DURATION OF AUTHORITY. A general authority may continue to bind a principal after its actual revocation, if the agency were known, and the revocation be wholly unknown to the party dealing with the agent, without that party's fault. An authority to sell implies an authority to sell on credit, if that be usual, otherwise not; and if an agent sells on credit without any authority, 'or by exceeding his authority, the principal may claim his goods from the purchaser, or hold the agent responsible for their price. Neither an auctioneer, nor a broker employed to sell, ha« any right to sell on credit, unless this authority is given him ex- pressly, or by some known and established usage. And the agent is •generally responsible if he ihixes the goods of his principal with his own, in such a manner as to confuse them together, or takes a note payable to himself, unless this be authorized by the usage of the trade. A CITIZEN OF THE UNITED STATES. 517 If the ai^ent (or factor) takes a note payable to himself, and becomes bankrupt, sucb note belongs to his pincipal, and not to the agent's assignees. A power to sell gives a power to warrant, where there is a dis- tinct usage of making such sales with warranty, and the want of authority to warrant is unknown to the purchaser, without his fault, and not otherwise. Thus it has been held that an authority to sell a horse implies an authority to sell with warranty, because horses are usually sold with warranty. A general authority to sell goods carries with it an authority ta-sell by sample. General authority to transact business, or even to receive and discharge debts, does not enable an agent to accept or indorse bills or notes, so as to charge his principal. Even special authorities to indorse are construed strictly. But this authority may be implied from the previous usage of the agent, recognized and sanctioned by the principal. Where a confidential clerk was accustomed to draw bills for his employer, and this employer had authorized him in one instance to indorse, and on two other occasions had received money obtained by his indorsement of his employer's name, the court held that a jury might consider the clerk authorized generally to indorse for his employer. An agent to receive cash has no authority to take bills or notes, except bank-notes. If an agent sells, and makes a material representation which he believes to be true, and the principal knows it to be false and does not correct it, this is the fraud of the principal and avoids the sale. If an agency he justly implied from general employment, it may continue so far as to bind the principal after his withdrawal of the authority,, if that withdrawal be not made known in such way as is usual or proper to all who deal with the agent as sijph. ReTocation, generally, is always in the power and at the will of the principal. His death operates of itself a revocation. But the death of an agent does not revoke the authority of a sub-agent appointed by the agent under an authority given him by the prin- cipal. If the power be coupled with an interest, — as where one gives a person power to sell goods and apply the money for his own, benefit, or the like, — or if it is given for a valuable consideration, and the continuance of the power is requisite to make the interest available, then it cannot be revoked at the pleasure of the principal., Maniage of a woman revokes a revocable authority given by her while single. If an agent to whom commercial paper is given for collection h© negligent or mistaken about it, and so in fault towards his principal, the measure of his responsibility is the damage actually sustained! by his principal. 518 THE PROPERTY RIGHTS OF If a bank receive notes or bills for collection, althougb charg- ing no commission, the possible use of the money is consideration enough to make them liable as agents having compensation ; that is, liable for any want of due and legal diligence and care. But if the bank exercise proper skill and care in the choice of a collecting agent, or of* a notary, or other person or oflScer, to do what may be necessary in relation to the paper committed to them, the bank is not liable for his want of care or skill. In general, an exigency, or even necessity, whicli would make an extension of the power of an agent very useful to his employer, will not give that extension. A master of a ship, however, may sell it, in case of strict necessity, or pledge it by bottomry, to raise money. But this is a peculiar effect of the law-merchant, arising only from necessity. SECTION IV. THE EXECUTION OF AUTHORITY. Generally, an authority must be conformed to with great strict- ness and accuracy, otherwise the principal will not be bound, al- though the agent may be bound personally. But the strictness formerly required is now abated considerably ; and, whatever be the form or manner of the signature of a simple contract, it will be held to bind the principal, if that were the certain and obvious intent. In the case of sealed instruments, the ancient severity is more strictly maintained. That the authority must be conformed to with strict accuracy, in all matters of substance, is quite certain ; but the whole instrument will be considered, in order to ascertain the intention of the parties and the extent of authority. A power given to two cannot be exe- cuted by one ; but some exception to the rule as to joint power exists in the case of .public agencies, and also in many commercial transactions. Thus, either of two factors, whether partners or not, may sell goods consigned to both. And where there are joint agents, whether partners or not, notice to one is notice to both. In commercial matters, usage, or the reason of the thing, may sometimes seem to add to an authority; so far, at least, as is requisite for the full discharge of the duty committed to the agent in the best and most complete manner. Thus it is held that an agent, to get a bill discounted, may indorse it in the name of his principal, unless he is expressly forbidden to indorse. So a broker, employed to procure insurance, may adjust a loss under the same ; but he' cannot give up any advantages, rights, or securities of the assured, by compromise or otherwise, without special authority.- A CITIZEN OF THE UNITED STATES. 519 SECTION V. MABILITY OF AN AGENT. Generally, an agent makes himself liable by Ms express agree- ment, or by transcending his authority, or by a material departure from it, or by concealing his character as agent, or by such conduct as renders his principal irresponsible, or by his own bad faith. If he describes himself as agent for some unnamed principal, he is not liable, unless he is proved to be the real principal. If an agent execute an instrument, the language of- which would hold him personally, he cannot exonerate himself by showing that, in fact, he signed it as agent, and that this was known to the other party ; because this would be to vary the terms of a written contract by evidence, which is not permitted, as we have before stated. A party with whom an agent deals as agent cannot hold Mm personally, on the groimd that he transcended or departed from his authority, if that party knew at the time that the agent did so. If he exceeds his authority, he is liable on the whole contract, although a part of it is within his authority. One who, having no authority, acts as agent, is personally responsible. But if an agent transcends his authority through an ignorance of its limits, which is actual and honest, and is not imputable to his own neglect of the means of knowledge, he would not be held, unless an innocent party dealing with him as agent would suffer loss if he were not held. SECTION VI. RIGHTS OF ACTION GROWING OUT OF AGENCY. If an agent intrusted with goods sell the same without author- ity, the principal may affirm the sale, and sue the buyer for the price, or he may disaffirm the sale, and recover the goods from the buyer. In case of a simple contract, that is, a contract not under seal, an undisclosed principal may show that the nominal party was actu- ally his agent, and thus make himself actually a party to the contract, and sue upon it ; but if the other party has previously in good faith settled with the supposed agent, or paid him any thing in cash or by charge, or in account, this other party must not lose by the coming' forward of the principal. So, too, an undisclosed principal, when discovered, may be made liable on such contract; but would be protected, if his accounts or relations with his agent had been in the &20 TEE PROPERTY RIGHTS OF mean time changed in good faith, so as to make it detrimental to" him to be held liable. If one. sells to an agent, knowing him. to be an agent, and knowing who is his principal, and elects to charge the goods to the agent alone, he cannot afterwards transfer the charge to the principal. IlFotice to an agent, before the transaction goes so far as to render the notice useless, is notice to the principal. And knowl- edge obtained by an agent in the course of the transaction itself is the same thing as knowledge of the principal. Notice to an officer or member of a corporation is notice to that corporation, if the officer or member, by appointment, or by usage, had authority to receive it for the corporation ; but notice to or knowledge of any member is not necessarily notice to or knowledge of a cor- poration. SECTION VII. HOW A PRINCIPAL IS AFFECTED BY THE ACTS OF HIS AGENT. If an agent makes a fraudulent representation, a principal would be liable for resulting injury, although personally ignorant and innocent of the wrong ; nor can he take any benefit therefrom. A principal cannot, of course, restrict his liability by calling himself an agent, although this is sometimes attempted. Payment to an agent of money due to the principal binds the principal only when it is made to the agent in the regular course of business. Payment to a sub-agent appointed by the agent, but whose appointment is not authorized by the principal, binds the agent, and renders liim liable to the principal for any loss of the money in the sub-agent's hands. Where a legacy was left to a tradesman, and' the executors paid it to a shopman who was in the habit of receiving daily payments, this was held not a sufficient pay- ment to discharge the executors. And, generally, a shopman author- ized to receive money at the counter, or any person authorized to receive money at any particular place or in any particular way, or for any particular pm'pose, is not thereby authorized to receive it in any other place or in any other way, or for any other purpose. Nor is the principal bound, if the agent be authorized to receive tlie money, but, instead of actually receiving it, discharge a debt due from himself to the payer, and then give a receipt as for money paid to bis principal, unless it can be shown that he has special authority to receive payment in this way, or that such pay- ment is justified, by known usage. A CITIZEN OF TEE UNITED STATES. 521 In general, althongfli a principal may be responsible for the deliberate fraud of his agent in the execution of his employment, he is not responsible for his criminal acts, unless he expressly com- manded them. There is, however, a class of cases in which the principal has intrusted property to his agent, and the agent has used it illegally ; and this act of the agent is evidence, which, if unexplained and unanswered, suffices to render the principal liable criminally, without proof of his direct participation in the act itself. The smuggling of goods, the issue of libellous publications, and the sale of intoxicating liquors by agents, belong to this class. SECTION VIII. MUTUAL RIGHTS AND DUTIES OF PRINCIPAI, AND AGENT. An agent cannot depart &om Ms instmctions without making himself liable to his principal for the conseqpiences. In determining the purport or extent of his instructions, custom and usage in like cases will often have great influence ; because, on the one hand, the agent is entitled to all the advantages which a known and estab- lished usage would give him, and, on the other, the principal has a right to expect that his agent will conduct himself according to such usage. But usage is never permitted to prevail over express in- structions. A principal who accepts the benefit of an act done by his agent beyond or aside fi-om his instructions, discharges the agent from responsibility therefor. And any unnecessary delay in renounc- ing the transaction^ or any endeavor to wait and make a profit out of it, is an acceptance of the act. But if the agent has bought goods for his principal without authority, the latter may renounce the purchase, and, nevertheless, hold the goods as security for his money, if that has been advanced on them. In general, every agent is entitled to indemnity &om his prin- cipal, when acting in obedience to his lawful orders, or when he, in conformity with his instructions, does an act which is not wrong in itself, and which he is induced by his principal to suppose right at that time. An attorney or agent cannot appoint a sub-attorney or agent, unless authorized to do so expressly, or by a certain usage, or by the obvious reason and necessity of the case. Thus, a consignee or factor for the sale of merchandise may employ a broker to sell, when this is the usual course of business. A sub-agent, appointed without such authority, is only the agent of the agent, and not the agent of the principal, unless his appointment is in some way authorized or confirmed and ratified by the principal. 522 THE PROPERTY RIGHTS OF An agent is bound to use, in the affairs of Ms principal, all that care and skill which a reasonable man would use in his own. And he is also bound to the utmost good faith. Where, however, an agent acts gratuitously, without an agreement for compensation, or any legal right to compensation growing out of his services, he will not be held responsible for other than gross negligence. But a strictly gratuitous agent will be held responsible for property in- trusted to him, if it be lost or injured by his gross negligence. For any breach of duty an agent is responsible for the whole injury thereby sustained by his principal; and, generally, a verdict against the principal for misconduct of the agent measures the claim of the principal over against the agent. The loss must be capable of being made certain and definite; and then the agent is respon- sible if it could not have happened but for his misconduct, although not immediately caused by it. Thus, where an insurance-broker was directed to effect insurance on goods "from Gibraltar to Dublin," and caused the policy to be made "beginning from the lading of the goods on board,'^ and they were laden on board at Malaga, and went thence to Gibraltar, and sailed for Dublin, 'and were lost on the voyage, so that the policy did not cover them because they were not laden at Gibraltar, — this was held to be gi-oss negligence on his part, and he was held responsible for the value of the goods. If any agent embezzles his employer's property, it is quite clear that the employer may reclaim it whenever and wherever he can distinctly trace and identify it. But if it be blended indistin- guishably with the agent's own goods, and the agent die or become insolvent, the principal can claim only as. a common creditor, as against other creditors ; but as against the factor or agent him- self, the whole belongs in law to the principal ; because the factor or agent had no right thus to mix up the property of another with his own, and if he chooses to do so, he must lose all of his own property that cannot be separated from that which is not his own. An agent employed to sell property cannot buy it himself; nor, if employed to buy, can he buy of himself, unless expressly author- ized to do so. Nor can a trustee purchase the property he holds in trust for another. But the other party may ratify and confirm such sale or purchase by his agent ; and he will do this by accepting the proceeds and delaying any objection for a long time after the wrong- ful act is made known to him. And if a trustee or agent to sell property buys it, not in his own name, but through somebody else, the sale is voidable. A CITIZEN OF TEE UNITED STATES. 523 Among the obvious duties of all agents is that of keeping an exact account of their doings, and particularly of all pecuniary transac- tions. After a reasonable time has elapsed, the court will presume that such an account was rendered, accepted, and settled ; other- wise, every agent might always remain liable to be called upon for such account. Moreover, he is liable not only for the balances in his hands, but for interest ; or even, where there has been a long delay to his own profit, he might be liable for compound intei'est, on the same ground on which it has been charged in similar cases against executors, trustees, and guardians. No interest whatever would be charged, if such wei-e the intention of the parties, or the effect of the bargain between them ; and this intention may be in- ferred either from direct or circumstantial evidence, — as the nature of the transaction, or the fact that the principal knew that the money lay useless in the agent's hands, and made no objection or claim. The general rule is, that a principal may revoke Ms agency, and an agent may throw up the agency at pleasure. But neither would be permitted to exercise this power in an unfair and injurious man- ner which circumstances do not require or justify, without being responsible to the other party for any damages caused by his wrong- ful" act. Insanity revokes authority, especially if legally ascertained. But if the principal, when sane, gave an authority to his agent, and a third party acts "with the agent in the belief of his author- ity, but after the insanity of the principal has revoked it, the insanity not being known to this third party, this revocation will not be per- niitted to take effect to the injury of this third party. SECTION IX. FACTORS AND BROKERS. All agents who sell goods for their principals, and guarantee the price, are said in Europe to act under a del credere commission. In this country, this phrase is seldom used, nor is such guai-anty usually given, except by commission-merchants. Indeed, the word "factor" is not commonly used in this country, except among lawyers, the common term being "commission-merchants;" and they may. or may not give a guaranty. Where a guaranty is given, the factor is so far a surety, that his employers must first have recourse to the principal debtor. Still his promise is not " a promise to pay the debt of another," within the statute of frauds." (See Section 2 of Chapter XV.) Nor does he guarantee 524 TEE PROPERTY RIGHTS OF the safe arrival of the money received by him in payment of the goods, and transmitted to his employer, but' he mast use proper caution in sending it. And if it is agreed that he shall guaranty the remittance, and charge a commission for so doing, he is liable, although he does not charge the commission. If he takes a note from the purchaser, this note is his' employer's ; and if he takes de- preciated or bad paper, he must make it good. A broker or factor is bound to the care and skill properly belong- ing to the business which he undertakes, and is- responsible for the want of it. A factor intrusted with goods may pledge them for advances to his principal, or for advances to himself to the extent of his lien for charges and commissions. And his power to pledge them, which grows out of the law-merchant, has been much enlarged by statute in many of our States. The mere wishes or intimations of Ms employer, if sufficiently distinct, have the fbrce of instructions. Thus, in New York, a prin- cipal wrote to his factor, stating that he thought there was a short supply of the goods he had consigned, and giving facts on which his opinion was founded, and concluded, "I have thought it best for yon to take my pork out of the market for the present, as thirty days will make an important change in the value of the article." This was considered by the court to be a distinct instruction, bind- ing upon the factor ; and he was therefore held liable for the loss caused by selling the pork within the thirty days. All instructions the agent or factor must obey ; but may still, as we have already stated, depart from their letter, if in good faith, and for the certain benefit of his employer, in an unforeseen exi- gency. Having possession of the goods, he may insure them; but is not bound to do so, nor even to advise insurance, unless requested, or unless a distinct usage makes this his duty. He has much dis- cretion as to the time, terms, and manner of a sale, but must use this discretion in good faith. For a sale which is precipitated by him without reason and injuriously is voidable by his principal, as unauthorized. If he send goods to his principal without order, or contrary to his duty, the principal may return them, or, acting in good faith and for the benefit of the factor, may sell them as the factor's goods. Although a factor charges no guaranty commission, he is liable to his principal for his own default ; so he is' if he sells on credit, and, when it expires, takes a note to himself: but if he takes at the time of the sale a negotiable note from a party in fair credit, and the note is afterward dishonored, this is the loss ^f his employer, unless the factor has guaranteed it. A CiriZEN OF THE UNITED STATES. 525 If he sells the goods of many owners to one purchaser, taking a note for the whole to himself, and gets It discounted for his own use or accommodation, he is then liable without any guaranty for the payment of that note. So he is if he gets discounted for his own use a note taken wholly for his principal's goods. But he may dis- count the note to reimburse himself for advances, without making himself liable. If he sends his own note for the price to his em- ployer, he must pay it. As a factor has possession of the goods, he may use his own name in all his transactions, even in suits at law ; but a broker can buy, sell, receipt, &c., only in the name of his employer. So, a factor has a lien on the goods in his hands for his advances, his expenses, and his commissions, and for the balance of his general account. And the factor may sell from time to time enough to cover his advances, unless there be something in his employment or in his instructions from which it mary be inferred that he had agreed not to do so. But a broker, having no possession, has no lien. The broker m^y act for both parties, and often does so. But, from the nature of his employment, a factor should act only for the party employing him. A broker has no authority to receive pa,yment for the goods he sells, unless that authority be given him, expressly or by usage. Nor will payment to a factor discharge a debtor who has received notice from the principal not to make such payment. Generally neither factor nor broker can claim their commissions until their whole service be performed, and in good faith, and with proper skill, care, and industry ; and their negligence may be given in evidence either to lessen their compensation or commissions, or to bar them altogether. But if the service begins, and is inteiTupted wholly without their fault, they may claim a proportionate compen- sation. If either bargains to g've his whole time to his employer, he will not be permitted to derive any compensation ibr services rendered to other persons. Nor can either have any valid claim against any one for illegal services, or those which violate morality or public policy. A principal cannot revoke an authority given to a factor after advances made by the factor, without repaying or securing the factor. The distinction between a foreign and a domestic factor is quite important, as they have quite different rights, duties, and powers by the law-merchant generally. A domestic factor is one who is employed and acts in the same country with his principal. A foreign factor is one employed by a principal who lives in a dit- ferent country; and a, foreign factor is as to third parties — for 526 THE PROPERTY RIGHTS OF mo8t purposes and under most circumstances — a principal. Thns, third parties cannot sue the principal, because they are supposed to contract with the factor alone, and on his credit, although the principal may sue them ; and a foreign factor is personally liable, although he fully disclose his agency, and his principal is known. The following forms of powers of attorney are those most fre- quently required ; and from them, by suitable alterations, powers of attorney may be framed for any purpose. FOEMS ANNEXED TO THIS CHAPTEE. (159.) A power of attorney. (160.) A power of substitution. (161.) A power of attorney in a shorter form. (162.) A full power of attorney to demand and recover debts. , (163.) A power of attorney to sell and deliver chattels. (164.) A power of attorney given by seller to buyer. (165.) A power of attorney to sell shares of stock, with appointment by attorney of a substitute. (168.) A power of attorney to subscribe for stock. (167.) A proxy, or power of attorney to vote. (168.) A proxy, revoking all former proxies. (169.) A proxy, with affidavit of ownership, in use in New York. (170.) A power to receive a dividend. (159.) POWER OF ATTORNET. Know all men bt these presents. That I (the name of the principal or party appointing), of (residence), have constituted, ordained, and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put (name of attorney), to be my true, sufficient, and lawful attorney, for me and in my name and stead to (liere set forth the purposes for which the power is given). Giving and hereby granting unto him, the said attorney, full power and authoiity in and about the premises; and to use all due means, course, and process in law for the full, efEectual, and complete execution of the busi- ness afore described; and in my name to make and execute due acquittance and discharge ; and for the premises to appear, and the person of me the constituent to represent, before any governor, judges, justices, officers, and ministers of the law whatsoever, in any court or courts of judicature, and there on my behalf to answer, defend, and reply unto all actions, causes, matters, and things whatsoever relating to the premises. Also to submit any matter in dispute, respecting the premises, to arbitration or other- wise; with full power to make and substitute, for the purposes aforesaid, A CITIZEN OF THE UNITED STATES. 527 one or more attorneys, under him, my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, determine, accomplish, and finish all matters and things whatsoever relating to the premises, as fully, amply and effectually, to all intents and purposes, as I, the said constituent, i£ present, ought or might personally, although the matter should require more special authority than is herein comprised, I, the said constituent, ratifying, allowing, and holding firm and valid all whatsoever my said attorney or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. In witness whereof, I have hereunto set my hand and seal, this day of in the year of our Lord eighteen hun- dred and sixty- {Signature.") (Seal.) Signed, sealed, and delivered in presence of us. Sometimes a power of attorney is given without any power of substitution. This may be by inadvertence, or because it was not intended that the attorney should substitute anybody in his place. Afterwards, it is desired to give him this power to substitute others. And this may be done by a separate instrument, as follows : — (160.) POWER OF SUBSTITUTION. Know all men by these presents. That I, by virtue of the power and authority to me given, in and by the letter of attorney of (the principal), which is hereunto annexed {or described without being annexed), do make, substitute, and appoint (name of substitute), as well for me as the true and lawful attorney and substitute of the said constituent named in the said letter of attorney, to do, execute, and perform all and every thing requisite and necessary to be done, as fully, to all intents and purposes, as the said constituent or I myself could do if personally pres- ent; hereby ratifying and confirming all that the said attorney and substi- tute hereby made shall do in the premises by virtue hereof and of the said letter of attorney. In witness whereof, I have hereunto set my hand, and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Executed and delivered in the presence of (161.) POWER OF ATTORNEY IN A SHORTER FORM. Know all men bt these presents, That I (name of principal) , have made, constituted, and appointed, and by these presents do make, consti- 528 THE PnOPERTY EIGHTS OF tute, and appoint (name of attorney), my true and lawful attorney, for me and in my name, place, and stead to Qiere describe the thing to be done), giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitu- tion and revocation; hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whekeof, I have hereunto set my hajid and seal, the day of in the year -one thousand eight hun- dred and (Siffnaiure.) (Stal.) Executed and delivered in the presence of (162.) FULL POWEE OF ATTORNEY TO DEMAND AND EECOVER DEBTS. Know all men by these presents. That I (name of principal), have constituted, ordained, and made, and in my stead and place put, and by these ^presents do constitute, ordain, and make, and in my stead and place put (name of attorney) , to be my true, sufficient, and lawful attorney, for me and in my name and stead, and to my use, to ask, demand, levy, require, recover, and receive, of and from all and every person or persons whomsoever the same shall or may concern, all and singular sum and sums of money, debts, goods, wares, merchandise, effects, and things, whatso- ever and wheresoever they shall and may be found due, owing, payable, belonging, and coming unto me the constituent, by any ways and means whatsoever. Giving and hereby granting unto my said attorney full and whole strength, power, and authority in and about the premises; and to take and use all due means, course, and process in the law for the obtaining and recovering the same, and of recoveries and receipts thereof; and in my name to make, seal, and execute due acquittance and discharge; and for the premises to appear, and the person of me theconstituent to represent, before any governor, judges, justices, officers, and ministers of the law whatsoever, in any court or courts of judicature, and there on my behalf to answer, defend, and reply unto all actions, causes, matters, and things whatsoever relating to the premises. Also to submit any matter in dis- pute to arbitration or otherwise, with full power to make and substitute one or more attorneys and my said attorney, and the same again at pleas- ure to revoke. And generally to say, do, act, transact, determine, accom- plish, and finish all matters and things whatsoever relating to the premises, as fully, amply, and effectually, to all intents and purposes, as I the said constituent, if present, ought or might personally, although the matter should require more special authority than is herein comprised, I the said constituent ratifying, allowing, and holding firm and valid, all and whatso- ever my said attorney or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. A CITIZEN OF THE UNITED STATES. 529 In witness whereof, I have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and {Signature.) (^Seal.) Signed, sealed, and delivered in presence of us, (163.) POWER OF ATTORNEY TO SELL AND DELIVER CHATTELS. Know all men by these presents, That I, the undersigned, for value received, do hereby irrevocably constitute and appoint to be my true and lawful attorney, for me and in my name and behalf to sell, transfer, and deliver unto or any other person or persons (here describe the things to be sold). And further, one or more persons under him to substitute with like power. In witness whereof, I have hereunto set my hand and seal, this day of _ 18 (J/Vitriesses.) (Signature.) (Seal.) (164.) POWER OF ATTORNEY GIVEN BY SELLER TO BUYER. KInow all men by these presents, That I for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer, unto (name of the buyer), the following articles, namely (describe the articles) ; and I do hereby con- stitute and appoint the said (the buyer) my true and lawful attorney irrevocable, for me and in my name and stead, but to my use, to sell, assign, transfer, and set over all or any part of the said (the goods) , and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute 'with like full power, hereby ratifying and confirming all that my said attorney or his substitute or substitutes shall lawfully do by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the day of one thousand eight hundred and (Signature.) (Seal.) Signed, sealed, and delivered in presence of (165.) POWER OF ATTORNEY TO SELL SHARES OF STOCK, WITH APPOINT- MENT BY ATTORNEY OF SUBSTITUTE. Know all men by these presents. That, for value received, I (name of the principal), of do hereby make, constitute, and appoint irrevocably, my true and lawful attorney (with power of sub- 84 530 • THE PROPERTY RIGHTS OF stitution), for and in my name and on my behalf , to sell, assign, and transfer unto (name of buyer) , share now standing in my name in the capital or joint stock of the And my said attorney is hereby fully empowered to make and pass all necessary acts for the said assignment and transfer. Witness my hand and seal, 186 (^Signature.) (Seal.) Signed, sealed, and delivered in the presence of FoK VALUE RECEIVED, I appoint, irrevocably (name of the substitute), as my substitute, with all the powers above given to me. Witness my hand and seal, 186 {Signature.) (^Seal.) Signed, sealed, and delivered in the presence of (166.) POWER OF ATTORNEY TO SUBSCRIBE FOR STOCK. Know all men by these presents. That I, the undersigned, do hereby irrevocably constitute and appoint to be my true and lawful attorney, for me and in my name and behalf to subscribe for shares in the capital stock of the And further, one or more persons under him to substitute with like power. In witness whereof, I have hereunto set my hand and seal, this day of 18 (^Witnesses present.) (^Signature.) (Seal.) (167.) PROXY, OR POWER OF ATTORNEY TO VOTE. Know all men by the3E presents, That I (name of the principal), of do hereby appoint to be my substitute and proxy for me and in my name and behalf to vote at any election of directors or other officers, and at any meeting of the stockholders of said company, as fully as I might or could were I personally present. In witness whereof, I have hereunto set my hand and seal, this day of 18 (Witnesses present.) (Signature.) (Seal.) (168.) PROXY, REVOKING ALL PREVIOUS PROXIES. Know all men by these presents, That I, the undersigned, stock- holder in the (name of the company), do hereby appoint my true and lawful attorney, with power of substitution, for me and in my name to vote at the meeting of the stockholders in said company, to be A CITIZEN OF TBE UNITED STATES. 531 held at or at any adjournment thereof, with all the powers I should possess if personally present, hereby revoking all previous proxies. 18 {Witness.') (Signature.) (169.) PROXY, WITH AFFroAVIT OF OWNERSHIP, IN USE IN NEW YORK. Know all men by these presents. That I, do hereby constitute and appoint my attorney and agent, for me and in my name, place, and stead to vote as my proxy at any election of directors of the according to the number of votes I should be entitled to vote if then personally present. In witness whereof, I have hereto set my hand and seal, this day of one thousand eight hundred and (Signature.) (Seal.) Signed, sealed, and delivered in presence of I do swear (or affirrn) that the shares on which my attorney and agent in the above proxy is authorized to vote do not belong, and are not hypothecated, to the said company, and that they are not hypothecated or pledged to any other corporation or person whatever; that such shares have not been transferred to me for the purpose of enabling me to vote thereon at the ensuing election, and that I have not contracted to sell or transfer them upon any condition, agreement, or understanding in relation to my manner of voting at the said election. (^Signature.) Sworn to this day of 18 , before me, (Signature.) (170.) POWER TO RECEIVE DIVIDEND. Know all men by these presents, That I, of do authorize, constitute, and appoint to receive from the (name of the company) the dividend now due to me on all stock standing to my name on the books of the said company, and receipt for the same; hereby ratifying and confirming all that may lawfully be done in the premises by virtue hereof. Witness my hand and seal, this day of 18 (Signature. ) (Seal.) Signed, sealed, and delivered in the presence of 532 THE PROPERTY RIGHTS OF CHAPTER XX. PAKTN^ERSHIP. SECTION I. WHAT A PARTNERSHIP IS. When two or more persons combine their property, labor, or skill, for the transaction of business for their common profit, they enter into partnership. Sometimes the word "finn" is used as sjmonymous with partnership ; sometimes, however, it means only the copartnership name. A single joint transaction, ont of which, considered by itself, neither profit nor loss arises, will not 'create a partnership. If a joint purchase be made, and each party then takes his distinct and several share of the goods, this is no partnership. Any persons competent to transact business on their own account may enter into partnership for that purpose. SECTION 11. HOW A PARTNERSHIP MAY BE FORIHED. No especial form or manner is necessary. It may be by oral agreement, or by a written agreement, which may have a seal or not. But the liability and authority of the partners begin with the actual formation of the partnership, and do not wait for the execu- tion of any articles. In general, if there be an agreement to enter into business, or into some particular transaction, together, and share the profits and losses, this constitutes a partnership, which is just as extensive as the business proposed to be done, and not more so. The parties may agree to share the profits in what proportion they choose ; but in the absence of any agreement, the law pre- sumes equal shares. They may agree as to any way of dividing the losses, or even that one or more partners alone shall sustain them all, without loss to the rest. And this agreement is valid as between themselves ; but it will not protect those partners who were to sustain no loss from responsibility to third parties, unless the third parties knew of this agreement between the partners, and gave credit accordingly. A CITIZEN OF THE UNITED STATES. 533 If A, B, & C, being partners, agree that A should not lose any- thing by their business, and a person knowing this bargain dealt ■with the firm on the credit of B & C, he could not call on A. But an agreement exempting partners from loss generally, or from loss beyond the amount invested, will only operate between the part^ ners, unless it can be shown that the third party not only knew the agreement, but contracted with the firm on the basis of this agree- ment. And, generally, stipulations in articles of copartnership limit- ing the power of a partner are not binding on third parties who are ignorant of them. Each partner is absolutely responsible to every creditor of the copartnership for the whole amount of the debt. And, if thereby obliged to suffer loss, his only remedy is against the other partners. Although partners may agree and provide as they will in their articles, a long neglect of these provisions will be regarded as a mutual waiver of them. Persons may be liable as partners to third parties or strangers, who are not partners as between themselves. Whether they are partners as to each other would generally be determined by the intention of the parties, as drawn from their contract, — whether oral or written, — under the ordinary rules of evidence and con- struction. But whether one is liable as a partner to a person who deals with the firm must depend in part upon his intention, but more upon his acts; for if by them he justifies those who deal with the firm in thinking him a partner in that business, he must bear the responsibility ; as if he declare that he has a joint in- terest in the property, or conducts the business of the firm as a partner, accepting bills, or suffers his name to be used upon cards, or in advertisements, or on signs, or in any similar manner. The declarations or acts of one person cannot, however, make another person liable as partner, without co-operation or consent, by word or act, on his part. The rule is this : that one who thus holds him- self out as a partner, when he really is not one, is responsible to a creditor who on these grounds believed him to be a partner ; but not to one who knew nothing of the facts, or who, knowing them, knew also that this person was not a partner. A secret partner is one who is actually a partner by partici- pation of profit, but is not avowed or known to be such ; and a dormant partner is one who takes no share in the conduct or con- trol of the business of the firm. Both of these are liable to creditors (even if the creditors did not know them to be members of the firm), on the ground of their interest and participation in the profits, which constitute, with the property of the firm, the funds to which cred- itors may look for payment. A nominal partner is one Who holds 534 THE PROPERTY RIGHTS OF himself out to the world as such, but is not so in fact. He is liable to creditors of the firm, on the ground that he justifies them in trusting the firm on his credit, and, indeed, invites them to do so, by declaring himself to be a partner. The principal test of membership in a mercantile firm is said to be the participation in the profits. Thus, if one lend money to be used in a business, for which he is to receive a share in the profits, this would make him a partner; and if he is to receive lawful interest, and, in addition thereto, a share of the profits, this would generally make him liable as a partner to a creditor of the firm. Sometimes a clerk or salesman, or a person otherwise employed for the firm, receives a share of the profits instead of wages. Formerly it was held, that if such person received any certain share, say " one-tenth part of the net annual profits," this made him liable as a partner; but if he received "a salary equal in amount to one-tenth of the net profits," this did not make him a partner. Now, the courts look more at the actual intention of the parties, and their actual ownership of an interest in the funds of the partnership, and are not governed by the mere phrase- ology used. If, in fact, he works for wages, although these wages are measured by the profits, he is no partner, and therefore not liable for the debts, as every partner is. Hence, factors and brokers for a commission on the profits, masters of vessels who engage for a share of the profits, or sea men employed on shares in whale-ships, are none _ of them partners. A partnership usually has but one business name ; but there does not seem to be any legal objection to the use of two names, especially for distinct business transactions; as A B & Co. for gen- eral business, and the name of A C & Co. for the purpose of making or indorsing negotiable paper, or for carrying on some particular business. SECTION III. HOW A PARTNERSHIP MAY BE DISSOLVED. If the articles between the partners do not contain an agree- ment that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a cer- tain time, this is binding. A CITIZEN OF THE UNITED STATES. 635 If either partner were to undertake to assign his interest, for the purpose of withdrawing from the firm, against the will of the partners, without good reason, and in fraud of his express agree- ment, a court of equity would interfere and prevent him. For the assignment of a partner's interest, or of his share of the profits, operates at once a dissolution of the partnership. , Such assignment may transfer to the assignee the whole in- terest of the assignor, but cannot give him a right to become a member of the firm. There seems to be an exception to this rule where the partnership is very numerous, and the manner of holding ^ares, by scrip or otherwise, indicates the original intention of making the shares transferable. Such a partnership is in effect a joint-stock company ; which form of association is not very common here, because incorporation is better, and is easily obtained. Death of a general or even of a special partner, operates a dissolution ; and the personal representatives of the deceased do not take bis place, unless there be in the articles an express pro- vision that they shall. And such provisions are construed as giving the heirs or personal representatives the right of electing whether to become partners or not. If either party is unable to do his duty to the partnership, as by reason of insanity or a long imprison- ment, or if he be guilty of material wrong-doing to the firm, — a court of equity will decree a dissolution. And if the original agreement were tainted with fraud, the court will declare it void from its beginning. Whenever a court of equity decrees a dissolution of the part- nership, it will also decree that an account be taken between the partners, if requested by either partner. And if necessary to do justice, it will decree a sale of the effects and a distribution of the proceeds, after a consideration of all the facts of the case and the whole condition of the firm. Such a decree may be made if a part- ner die or become bankrupt. If the whole interest of a copartner is levied upon and sold on execution, this makes a dissolution, and the purchaser becomes, — like every other assignee of a partner, — not a partner, but only a tenant in common (that is, a joint owner) with the other part- ners ; but if the levy and sale are only of a part, which may be severed from the rest, this may not operate a dissolution except as to that part. If one partner retires, this operates in law a dissolution, and the (omaining partners constitute in law a new firm, although in fact the remaining partners frequently continue and go on with their business, under the name of the old firm, with or without new members, as if it were the same firm. 536 TEE PROPERTY RIGHTS OF The partner retiring^ should withdraw his name from the firm, and give notice, by the usual public advertisement, of his retirement, and also, by personal notice, by letter or othervrise, to all who usually do business with the firm ; and after such notice, he is not responsible, even if his name be retained in the firm by the other partners, if this is done without his consent. Nor is he re- sponsible to any one who has in any way actual knowledge of his retirement. A secret or unknown partner is not liable for a debt contracted after his retirement, although he give no notice ; because his liability does not rest upon his giving his credit to the firm, but upon his being actually a partner. SECTION IV. THE PROPERTY OF THE PARTNERSHIP. A partnership may hold real estate as well as personal estate, and a partnership may be formed to trade in land, or to cultivate land. But the rules of law in respect to real estate, as in relation to title, conveyance, dower, inheritance, and the like, make some difierence. As far, however, as is compatible with these rules, it seems to be agreed that the real estate of the partnership is treated as if it were personal property, if it have been purchased Avith the partnership funds and for partncj-ship purposes. There is some difficulty in explaining this matter to those who are not acquainted with the peculiar law of real estate. Thus, no sale of land is valid except by deed : and only he who is thus a grantee under seal has a legal title. But a court of equity acknowl- edges and protects an equitable title in those who really possess all the interest in the land ; as partners do who have paid for it, though it stands in the name of one partner only. But a court of equity cannot disregard the laws of conveyance and record, and therefore says that this one partner is the only legal owner, but that he owns the land as trustee for the firm. And then they compel him to sell it, or otherwise dispose of it, as the interests of the firm or of their creditors require. So land thus purchased does not go to the heirs of the partner or partners in whose name it may stand, but is first subject to the debts of the firm, and then to the balance which may be due to either partner on winding up their afiairs. But when these debts and claims are adjustea, any surplus of the real estate will then descend as real estate, and not as personal estate. A CITIZEN OF THE UNITED STATES. 537 Improvements made with partnership funds on the real estate of a partner will be regarded as partnership property. The widow has her dower only after the above-mentioned debts and claims are adjusted. And while the legal title is protected, as it must be for the purpose of conveyance and other similar pur- poses, the person holding this legal title will be held as a trustee for the partnership if the partnership be entitled to the beneficiary interest. But a purchaser of partnership real property, without notice or knowledge from a partner holding the same by a legal title, is pro- tected against the other partners. If, however, the purchaser has such knowledge, the conveyance may be avoided as fraudulent, or he may be held as trustee, the land being in his hands chargeable with the debts and claims of the partnership. SECTION V. THE AUTHORITY OF EACH PARTNER, AND THE JOINT LIABILITY OF THE PARTNERSHIP. This authority is very great, because the law-merchant makes each partner an agent of the whole partnership, with full power to bind all its members and all its property, in transactions which fall within the usual business of the firm ; as loans, borrowing, sales, even of the whole stock, pledges, mortgages, or assignments ; and this last extends even to an honest and prudent assignment of the whole stock and personal property to trustees to pay partnership debts. It extends to the making or indorsing negotiable paper; and to transactions out of the usual business of the firm, if they arose from and were fairly connected with that business. Hot is any party dealing with a partner affected by his want of good faith towards the partnership, unless he colluded with the partner, and participated in his want of good faith, by fraud or gross negligence. But a holder of a note or bill signed or indorsed by a partner without authority has no claim against the partnership, if he knew or should have known the want of authority. A partner cannot, in general, bind the firm by a guaranty, a letter of credit, or a submission to arbitration, without authority, because these things do not belong generally and properly to com- mercial business. But any thing so done by a partner may be adopted and ratified by the partnership, and then it has the same force as if originally authorized. And this ratification may be formal and express, or consist only of acts which distinctly imply it ; such as assenting to and acting with reference to it, and espe- 538 THE PROPERTY RIGHTS OF cially receiving and holding the beneficial results of it ; as, for example, taking and holding money received from it. By the earlier and more stringent rules of law, a partner could not bind his copartners by an instrument under seal, unless he vras himself authorized under seal; and their subsequent acknowledg- ment of his authority did not cure the defect. Now, however, a partner may bind his firm by an instrument under seal, if it be in the name and for the use of the firm, and in the transaction of their usual business, provided the other copartners assent thereto before execution, or adopt and ratify the same afterwai-ds ; and they may assent or ratify by word as well as by seal ; or provided he could have made the same conveyance, or done the same act effectually, without a deed. And a deed executed by one partner in the pres- ence and with the assent of the other partners will bind them. A partnership has no seal at law, and can have none : only a person or a corporation can have a seal. Instruments are some- times executed, " A B & Co.," and a seal is afiixed to the name. This is, strictly speaking, no seal at all ; and if the instrument needs a seal to make it valid, as if it were a deed of land, it would, at law, be wholly void. But the courts in some of our States are somewhat lax on this subject, and might construe it as the seal of each one of the partners to give the instrument validity. A majority of the members cannot conclusively bind the minor- ity, unless in reference to the internal concerns of the firm ; as, for example, the salary or appointment of a clerk, the hiring or fitting- up of a counting-room, the manner of keeping accounts, and the like. But one member may, so far as he is concerned, arrest a negotiation which was only begun, and prevent a bargain which would be binding on him, by giving notice to the third party of his dissent and refusal in season to enable him to decline the bargain without detriment. Partners must act as such, to bind each other. Thus, if a part- ner makes a note, and signs it with his own name and his partner's name, as a joint and several note, it does not bind his partner, for the partnership gave him no authority to make such a note. If the name of one partner he also the name of the firm, — for John Smith and Henry Robinson may do business as partners under the name of "John Smith," — this name is not necessarily the name of the firm when used in a note or contract ; and if the partner whose name is used cames on mercantile business for himself, it will not be supposed to be used as the name of the firm, without suflicient proof One who is not a partnier will not have either the authority or the obligation of a partner cast upon him by an agreement of the A CITIZEN OF THE UNITED STATES. 539 firm to be governed by his advice. Nor shall one be charged as partner with others, iinless he has incurred the liability by his own voluntary act. The reception of a new member constitutes, in law, a new firm ; but the new firm may recognize the old debts, as by express agree- ment, or paying interest, or other evidence of adoption, and then the new firm is jointly liable for the old debt. But there must be some fact from which the assent of the new member to this adop- tion of the old debt may be inferred, for his liability is not to be presumed. A notice in legal proceedings, abandonment to insurers by one who was insured for himself and others, a notice to quit of one of joint lessors or lessees who are partners in trade, notice to one part- ner of the dishonor of a note or bill bearing the name of the firm, a release to one partner or by one partner, — will bind all the part- ners, and render them jointly liable. But a service of legal process should be made upon each partner personally. If money be lent to a partner for partnership purposes, it creates a partnership debt ; but not if lent expressly on the individual credit of the person borrowing ; and not if the borrowing partner receives it to enable him to pay his contribution to the capital of the firm. Though the money be not used for the firm, if it was borrowed by one partner on the credit of the firm, in a manner and under circumstances justifying the lender in trusting to that credit, it creates a partnership debt. And if a partner uses funds in his hands as trustee, for partnership purposes, the firm are certainly jointly bound, if it was done with their knowledge. And if it was done without their knowledge, and the partners are distinctly and directly benefited by the transaction, and retain the benefit, they will be liable as if they had authorized it. If in any case a person, knowing the existence of the firm, gave credit to a single partner only, then he can look only to that part- ner, and not to the firm, although the money was applied to and used for partnership purposes. But if the partner held himself out as borrowing for the firm, and the lender without any want of due care gave credit to the firm, and the transaction was a fair busi- ness transaction on the part of the lender, the firm will be liable, although the money is fraudulently appropriated by the partner to his own use. In the absence of evidence showing to whom the credit was given, the fact that money lent to one partner was applied to the use of the firm, will make the firm liable for the payment ; but not if the partner employed it as his contribution to increase the capital of the firm. 540 TBE PROPERTY RIGHTS OF ' If the purchaser of goods or the borrower of money have a dor- mant and secret partner, and the goods were bought or the money borrowed for partnership purposes, the seller or lender may look to both partners for payment, unless the seller or lender, knowing all the partners, gave credit to one only. The firm is liable only to one who deals with a partner in good faith. Thus, if one receives negotiable paper bearing the name of a firm, knowing that it is not in the business of the firm, and is given, for no consideration received by the firm, he cannot hold the firm. And if a creditor of one partner receive for his separate debt a partnership security, this would be a fraud, unless the part- ner had, or was supposed by the creditor to have, the authority of the rest. If he supposed the partner had this authority, he cannot hold the partnership if the partner had not the authoi-ity, unless the part- nership had caused him to believe it. And if the partnership secu- rity be transferred for two considerations, one of which is piivate and fraudulent, and the other is joint and honest, the partnership is bound for so much of it as is not tainted with fraud, and only for that. The partnership may be liable for injury caused by the criminal or wrongful acts of a partner, if these were done in the transaction of partnership business, and if it was the partnership which gave to the wrong-doer the means and opportunity of doing the wrong. But an illegal contract will not bind the copartners, for the parties enter- ing into it must be presumed to know its illegality; and the law enforces no bargain that is contrary to law. The acknowledgment of one who had been a partner, after the dissolution of the partnership, may take the debt out of the statute of limitations as to him, but not so as to restore the liability of all the partners without their assent. SECTION VI. REMEDIES OF PARTNERS AGAINST EACH OTHER. It is seldom that a partner can have a claim against another partner, as such, which can be examined and adjusted without an investigation into the accounts of the partnership, and, perhaps, a settlement of them. Courts of law have ordinarily no adequate means of doing this ; and therefore it is generally true that no part- ner can sue a copartner at law for any claim growing out of part- nership transactions and involving partnership interests. But the objection to a suit at law between partners goes no further than A CITIZEN OF TEE UNITED STATES. 541 the reason of it; and, therefore, one may sue his copartner upon his debt or agreement to do any act which is not so far a partnership matter as to involve the partnership accounts. If the accounts are finally adjusted, either partner may sue for a balance ; and so it would be if the accounts generally remained open, but a specific part of them were severed from the rest, and a balance found on that. The rule is generally laid down, that an action cannot be sustained by a partner against a partner for a bal- ance, unless there is an express promise to pay it. But such pi-om- ise would be inferred in all cases in which an account had been taken, and a balance admitted to be due. In general, any action at law between partners can be main- tained only when a rendering of judgment in this action will com- pletely terminate all partnership mattera, so that no further cause of action can grow out of them. What a court of law cannot do as to actions between partners a court of equity can ; and, generally, a court of equity has a full jurisdiction over all disputes and claims between partners, and may do whatever is necessary to settle them in conformity with justice. A partner may sue his copartner for money advanced before the partnership was formed, although the loan was made to promote the partnership. And for work done for the firm before he became a member of it, he may sue those who were members when he did the work. And he may sue a copartner on his note or bill, although the consideration was on partnership account ; but, in general, no action at law can be maintained by a partner against his partners for work and labor perforrned, or money expended for the partnership. A partner who pays more than Ms proportion of a debt of the partnership cannot demand specific contribution from his copartners, but must charge his payment to the firm. The reason is, that they may have claims against him on other accounts, and they must be all settled together to strike the balance. If one of a firm be a member also of another firm, the one firm cannot sue the other; for the same person cannot be plaintifi" and defendant of record. A cannot sue A; and therefore A, B, & C cannot sue C, D, & A. In all these cases an adequate remedy may be found in a court of equity. If a firm have a negotiable note which it cannot sue, because one of its own firm is liable upon it and must be made defendant, it can indorse the note over, and the indorsee may sue it in his own name, as we have before stated. (See Section 6, Chapter XVIII.) The partners are entitled to perfect good faith from each copart- ner ; and a court of equity will interfere to enforce this. N"o part- 642 THE PROPERTY RIGHTS OF ner will be permitted to treat privately, and for his own benefit alone, for a renewal of a lease, or to transfer to himself of any benefit or interest properly belonging to the firm. And so careful is a com-t of equity in this respect, that it will not permit a copartner, by his private contract or arrangement, to subject himself to a bias or interest which might be injurious to the firm, and conflict with his duty to them, but will declare void any contract of this kind. SECTION VII. RIGHTS OF THE FIRM AGAINST THIRD PARTIES. If a partner sells the goods of the firm in Ms own name, the firm may sue for the price. But the rights of one who deals in good faith with a copartner, as with him alone, are so far regarded, that he may set off any claim, or make use of any other defences against the suit of the firm, which he could have made had the person with whom he dealt sued alone. Therefore, if A honestly bought goods of a firm from a partner whom he supposed to be sole owner of them, and paid him the price, the firm cannot recover this price from the buyer, although the seller sold the goods fraudulently, and cheated the firm out of the money, but must charge the price to the selling partner. A guaranty to a copartner, if for the use and benefit of the firm, gives to them a right of action. A new firm, created by some change in the membership of an old firm, is entitled to the benefit of a guaranty given to the old firm, even if sealed, only when it shall distinctly appear that the instru- ment was intended to have that effect, and extend to the new firm. SECTION vni. RIGHTS OF CREDITORS IN RESPECT TO FCNDS. The property of a partnership is bound to pay the partnership debts; and, therefore, a creditor of one copartner has no claim to the partnership funds until the partnership debts are paid. If there be then a surplus, he may have that copartner's interest therein, in pay- ment of his private debt. If a private creditor attaches partnership property, or in any way seeks to appropriate it to his private debt, the partnership debts being unpaid, he cannot hold it, either at law or in equity. Such attachment or appropriation is wholly subject to the paramount claims of the partnership creditors, and is wholly defeated by the A CITIZEN OF THE UNITED STATES. 543 insolvency of the partnership, although the partnership creditors have not brought any actions for their debts. Hence, if a creditor of A attaches his interest in the property of A, B, & Co., and a creditor of A, B, & Co. attaches the same prop- erty, the first attachment is postponed to the second ; that is, it has no effect until the debt of the second creditor is fully satisfied, and then it is good for the surplus of property. If, however, one partner is dormant and unknown, the creditor of the other at- taching the stock is not postponed to the creditor who discovers the dormant partner and sues him with the other, unless the first attaching creditor's claim has no reference to the partner- ship business, and that of the second attaching creditor has such reference. The partnership creditors are restrained from appropriating the private property of the copartners until the claims of their private creditors are satisfied in courts of equity. And some re- cent adjudications indicate that the rule will become established at law. I think the law ought to be, and that it is now tending to become, this. A pai'tnership is a kind of body by itself, somewhat like a corporation. It has its own funds and its own debts. The individual members may also have each his own funds and his own debts. The funds of the partnership should first be applied to the debts of the partnership ; and, if there be any surplus, the members have it, and their creditors get it. So the private funds of each member should first be applied exclusively to the payment of that person's private debts; and when they are wholly paid, the surplus should go to the partnership creditors, because each partner is responsible for the partnership debts. This rule prevails on the continent of Europe veiy generally. It is now q[uite certain that the levy of a private creditor of one copartner upon partnership property can give him only what that copartner has ; that is, not a separate personal possession of any part or share of the stock or property, but an undivided right or interest in the whole, subject to the payment of debts and the settlement of accounts, including also the right to demand an account. As to how such levy and sale of the interest of one copartner shall be made by the sherifi", there is much diversity both of practice and of authority. Upon principle, we think the sheriff can neither seize nor transfer by sale either the whole stock or any specific portion of it. He should, we think, without any actual seizure, sell all the interest of the defendant partner in the stock and property of the partnership ; much in the same way in which he would seU 544 THE PROPERTY RIGHTS OF bis right to redeem a mortgage, or any other incorporeal right, sub- ject to attachment. The purchaser would then have a right to demand an account and settlement, and a transfer to himself of any balance or property to which the copartner whom he sued would have been entitled. Where the trustee process, or process of foreign attachment, is in use, the better way would be for the sheriff to return a general attachment of all the interest of the debtor in the partnership property, and summon the other partners as the trustees of the debtor. It must be stated, however, that the rules of law in regard to the liability of partnership property for the private debts of partners, and as to how any such liability may be enforced, are, at present, somewhat obscure and uncertain. SECTION IX. THE EFFECTS OF DISSOLUTION. If the dissolution is caused by the death of any partner, the whole property goes to the surviving partner or partners. They hold it, however, not as their own, but only for the purpose of settle- ment ; and therefore they have, in relation to it, all the power which is necessary for that purpose, and no more. If they carry on the business with the partnership funds, they do so at their own risk ; and the representatives of the deceased may require their share of the capital, and choose between calling on them, in addition, for interest, or for a share of the profits which the surviving partners have made. The survivors are not partners but tenants in common (joint owners) with the representatives of the deceased of the stock or prop- erty in possession ; and have all necessary rights to settle the affairs of the concern and pay its debts. After a dissolution, however caused, one who had been a partner has no authority to make new contracts in the name of the firm, and cannot make or indorse notes or bills with the name of the firm, even if he be expressly authorized to settle the affairs of the firm. There must be a distinct authority to sign for the others who were formerly partners. A parol author- ity will be sufficient, even if the general terms of the partnership had been reduced to writing. It is common where a partnership is dissolved by mutual con- sent, to provide that some one of the partners shall settle up the affairs of the concern, collect and pay debts, and the like. But this will not prevent any person from paying to any partner a debt due A CITIZEN OF THE UNITED STATES. 645 to the firm ; and, if such payment be made in good faith, the release or discharge of the partner is effectual. If all the dehts were assigned and transferred to any person, as his property, any debtor who had notice of this would be bound to make payment to this person alone ; and, if he paid anybody else, he would be obliged to pay the money over again. It is £rec[uently provided that one partner shall take all the property and pay all the debts ; but this agreement, though valid between the partners, has no effect upon the rights of third parties against the other partners ; for they have a valid claim against all the partners, of which they cannot be divested without their con- sent. This consent of the creditor may be inferred, but not from slight evidence ; thus, not from receiving the single partner's note as a collateral security, nor from receiving interest from him on the joint debt, nor from a mere change in the head of the account, charging the single partner and not the firm. Still, as the creditor certainly can assent to this arrangement, and accept the indebtedness of one partner instead of that of the firm, so it must be equally clear that Buch assent and intention will bind him, if distinctly proved by cir- cumstances or by any evidence. SKCTION X. MMITED PARTNERSHIP. These have been introduced into some of our States, by statutes, which differ somewhat in their provisions. Genei"ally, they require, first, one or more general partners, whose names shall be known ; secondly, special partners, who do not appear as members, nor pos- sess the powers or discharge the duties of actual partners ; thirdly, the sum to be contributed by the special partners shall be actually paid in ; lastly, all these arrangements, with such other information as may be needed for the security of the public, must be verified under oath, signatures of all the parties, and acknowledgment before a magistrate, and correctly published. When these requisites are complied with, the special partners may lose all they have put in, but cannot be held to any further responsibility. But any neglect of them, or any material mistake in regard to them, even on the part of the printer of the advertisement, wholly destroys their effect ; and then the special partner is liable for the whole debt, precisely like a general partner. In a New York case, the amount contributed by the special partner was, by mistake of the printer, stated at $5,000, instead of 35 546 TEE PROPERTY RIGHTS OF $2,000, and it was held that the associates were liable as general partners, although the plaintiflF did not show that he was actually misled by the error. In another New York case, it was held that an assignment of the partnership property, providing for the payment of a debt due to the special partner, ratably with the other creditors of the firm, or before all the other creditors are satisfied in full for their debts, is void as against the creditors ; but it would be valid as against the assignor and those creditors who think proper to affirm it. FORMS AITNEXED TO THIS CHAPTEE. (171.) Articles of copartnership between two tradesmen. (172.) Shorter form of articles of copartnership. (173.) Certificate of a limited partnership, with' acknowledgment and oath. (171.) ARTICLES OF COPARTNERSHIP BETWEEN TWO TRADESMEN. Articles op agreement, Had, made, concluded, and agreed upon, this day of a.d. between of trader, and of trader. First of all, the said and have agreed, and by these presents do agree, to become copartners together in the art or trade of and all things thereto belonging, and also in buying, sell- ing, vending, and retailing all sorts of wares, goods, and commodities belonging to the said trade of which said copartnership, it is agreed, shall continue from for and during and unto the full end and term of years, from thence next ensuing, and fully to be complete and ended. And to that end and purpose he the said hath the day of date of these presents, delivered in, as stock, the sum of and he the said the sum of to be used, laid "out, and employed in common trade between them, for the management of the said trade of to their utmost benefit and advantage. And it is hereby agreed between the said parties, and the said copartners, each for himself respectively, and for his own particular part, and for his executors and administrators, that each doth covenant, promise, and agree, to and with the other of them, his executors and administrators, by these presents, in manner and form following (that is to say), that they the said copartners shall not nor wUl, at anytime hereafter, use, exercise, or follow the trade of aforesaid, or any other trade whatsoever, during the said term, to their private benefit and advan- tage; but shall and will, from time to time, and at all times, during the said term (i£ they shall so long live), do their and each of their best and utmost endeavors, in and by all means possible, to the utmost of their skill and power, for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell, and merchandise, with the stock aforesaid, and A CITIZEN OF THE UNITED STATES. 547 the increase thereof in the trade of aforesaid, •without any sinister intentions or fraudulent endeavors whatsoever. And also that they the said copartners shall and -will, from time to time, and at all times hereafter, during the said term, pay, bear, and discharge, equally between them, the rent of the shop, which they the said copartners shall rent or hire, for the joint exercising or managing of the trade aforesaid. And that all such gain, profit, and increase as shall come, grow, or arise for or by reason of the said trade, or joint business as aforesaid, shall be from time to time, during the said term, equally and proportionably divided between them the said copartners, share and share alike. And also that all such losses as shall happen in the said joint trade, by bad debts, ill commodities, or otherwise without fraud or covin, shall be paid and borne equally and proportionably between them. And further, it is agreed by and between the said copartners, that there shall be had and kept from time to time, and at all times, during the said term and joint business and copartnership together as aforesaid, perfect, just, and true books of accounts, wherein each of the said copartners shall duly enter and set down, as well all money by him received, paid, expended, and laid out, in and about the management of the said trade, as also all wares, goods, commodities, and merchandises, by them or either of them bought and sold by reason or means or upon account of the said copartnership, and all other matters and things whatsoever, to the said joint trade, and the management thereof, in any wise belonging or appertaining, which said books shall be used in common between the said copartners, so that either of them may have free access thereto without any interruption of the other. And also that they the said copartners, once in three months, or oftener if need shall require, upon the reasonable request of one of them, shall make, yield, and render, each to the other, or to the executors or administrators of the other, a true, just, and perfect account of all profits and increase, by them or either of them made, and of all losses by them or either of them sustained, and also of all payments, receipts, and disbursements whatsoever, by them or either of them made, or received, and of all other things by them or either of them acted, done, or suffered in the said copartnership and joint business as aforesaid; and the same account being so made, shall and will clear, adjust, pay, and deUver, each unto the other, at the time of making such account, their equal shares of the profits so made as aforesaid; and at the end of the said term of or other sooner determination of these presents (be it by the death of one of the said partners or otherwise), they the said copartners, each to the other, or in case of the death of either of them, the surviving party to the executors or administrators of the party deceased, shall and will make a true, just, and final account of all things as aforesaid, and divide the profits afore- said, and in all things well and truly adjust the same, and that also upon the making of such final account, all and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, whether consisting of money, wares, debts, shall be equally parted and divided between them the said copartners, their executors or administrators, share and share alike. In witness whekeof, &c. (^Signatures.) 548 TBE PROPERTY RIGHTS OF Various Covenants and Clauses which, may he introduced in Articles of Copartnership, according to circumstances. NOT TO TEUST ANT ONE TiTHOM THE COPAKTNBR SHALL POEBID. And that neither of the said parties shall sell or credit any goods or merchandise belonging to the said joint trade, to any person or persons, after notice in ■writing from the other of the said parties, that such person or persons are not to be credited or trusted. NOT TO KELEASE ANT DEBT WITHOUT CONSENT, ETC. And that neither of the said parties shall, without the consent of the other, release or compound any debt or demand, due or coming to them on account of their said copartnership, except for so much as shall actually be received, and brought into the stock or cash account of the said partner- ship. NOT TO BE BOUND, OK INDOKSfi BILLS, ETC., POR ANT ONE WITHOUT CONSENT, ETC. And that neither of the said parties shall, during this copartnership, without the consent of the other, enter into any deed, covenant, bond, or judgment, or become bound as bail or surety, or give any note, or accept or indorse any bill of exchange for himself and partner, without the con- sent of the other first had and obtained, with or for any person what- soever. NEITHBE PAETT TO ASSIGN HIS INTEREST, ETC. And it is agreed between the said parties, that neither of the said parties shall, without the consent of the other, obtained in writing, sell or assign his share or interest in the said joint trade, to any person or per- sona whatsoever. PEINCIPAL CLERK TO BE RECEIVER OP MONETS, ETC. That the principal clerk for the time being shall be the general receiver of all .the money belonging to the said joint trade, and shall thereout pay all demands ordered by the said parties, and shall from time to time pay the surplus cash to such banker as the said partners shall nominate. PAETIES TO DRAW QUARTERLT, ETC. That it shall be lawful for each of them to take out of the cash of the joint stoet the sum of quarterly, to his own use, the same to be charged on account, and neither of them shall take any further sum for his own separate use, without the consent of the other in writing; and any such further sum, taken with such consent, shall draw interest after the rate of per cent, and shall be payable, together with the interest due, within days after notice in writing given by the other of the said parties. A CITIZEN OF THE UNITED STATES. 549 (172.) SHOETER FORM OF ARTICLES OF COPARTNERSHIP. Articles of agreement, Made the day of one thousand eight hundred and between (the names and resi- dence of the two parties), as follows: The said parties above named have agreed to become copartners in business, and by these presents do agree to be copartners together under and by the name or firm of in the buying, selling, and vending all sorts of goods, wares, and merchan- dise to the said business belonging, and to occupy the their copartnership to commence on the day of and to continue and to that end and pui-pose the said (here state the contributions of each of the parties), to be used and employed in common between them for the support and management of the said business, to their mutual benefit and advantage. And it is agreed by and between the parties to these presents, that at all times during the continuance of their copart- nership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell, and merchandise with their joint stock, and the increase thereof, in the business aforesaid. And also that they shall and will at all times during the said copartnership bear, pay, and dis- charge equally between them all rents and other expenses that may be required for the support and management of the said business; and that all gains, profit, and increase that shall come, grow, or arise from or by means of their said business, shall be divided between them (state whether equally, or in what proportions) and all loss that shall happen to their said joint business, by ill commodities, bad debts, or otherwise, shall be borne and paid between them. And it is agreed by and between the said parties that there shall be had and kept at all times during the continuance of their copartnership, perfect, just, and true books of account, wherein each of the said copart- ners shall enter and set down, as well all money by them or either of them received, paid, laid out, and expended in and about the said business, as also all goods, wares, commodities, and merchandise, by them or either of them, bought or sold by reason or on account of the said business, and all other matters and things whatsoever to the said business and the manage- ment thereof in any wise belonging; which said books shall be used in common between the said copartners, so that either of them may have access thereto, without any interruption or hinderance of the other. And also the said copartners, once in or oftener if necessary, shall make, yield, and render, each to the other, a true, just, and perfect inven- tory and account of all profits and increase by them, or either of them, made, and of all losses by them, or either of them, sustained; and also all payments, receipts, disbursements, and all other things by them made, received, disbursed, acted, done, or suffered in this said copartnership and business; and the same account so made shall and will clear, adjust, pay, and deliver, each to the other, at the time, their just share of the profits so made as aforesaid. 550 THE PROPERTY RIGHTS OF And the said parlies hereby mutaally covenant and agree to and mth each other, that, during the continuance of the said copartnership, neither of them shall nor will indorse any note, or otherwise become surety for any person or persons whomsoever, without the consent of the other of the said copartners. And at the end, or other sooner determination of their copart- nership, the said copartners, each to the other, shall and will make a true, just, and final account of all things relating to their said business, and in all things truly adjust the same; and all and every the stock and stocks^ as well as the gains and increase thereof, which shall appear to be remain- ing, either in money, goods, wares, fixtures, debts, or otherwise, shall be divided between them. In witness whekeof, &c. {^Signatwes.) (173.) CERTIFICATE OF A LIMITED PARTNERSHIP, WITH ACKNOWLEDGMENT AND OATH. This is to certify, That the undersigned have, pursuant to the pro- visions of the statute of the State of formed a limited part- nership, under the name or firm of that the general nature of the business to be transacted is {describe the business), and that is the general partner and is the special partner , and that the said {the special partner') hath contributed the sum of dollars as capital towards the common stock, and that the ^aid partnership is to commence on the day of and is to terminate on the day of 18 Dated this day of one thousand eight hundred and {Signatures.) County op ss. On the day of one thousand eight hundred and before me came to be the individuals described in and who executed the above certificate, and they severally acknowledged that they executed the same. {Signature.) County op ss. the general partner named in the above certificate, being duly sworn, doth depose and say, that the sum specified in' the said certificate to have been contributed by the special partner to the common stock has been actually and in good faith paid in cash. Sworn this day of 18 , before me, {Signature.) In some of the States, the oath should be made by the general partner; and it would always be safe for all the partners, general and special, to take the oath, and be included in the certificate. A CITIZEN OF TEE UNITED STATES. 551 CHAPTER XXL AEBITEATIOIS". SECTION I. OF THE SUBMISSION AND AWAKD. By the submission (or reference) is meant the submission of the question or questions to arbitrators. The law favors arbitration in many respects as a peaceable and inexpensive mode of settling difficulties. Parties may agree to refer a question by an oral agreement, or by a written agreement. The form is not essential. But it is always best to reduce the agreement to writing, and to express it carefully. But parties may, in many of our States, go before a magistrate and agree to refer in the manner pointed out by the statute. In all of them a case may be taken out of court and submitted to referees under an order of court. The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the submission. The authority given to the arbitrators should not be exceeded; and the precise question submitted to them, and neither more nor less, should be answered. Neither can the award affect strangers (or those who are not parties to it) ; and, if one part of it is that a stranger shall do some act, it is not only of no force as to the stranger, but of no force as to the parties, if this unauthorized part of the award cannot be taken away without affecting the rest of the award. Nor can it require that one of the parties should make a payment, or do any similar act, to a stranger. But if the stranger is mentioned in an award only as agent of one of the parties, which he actually is, or as trustee, or as in any way paying for, or receiving for, one of the parties, this does not invalidate the award. And in favor of awards, it has been said that this will be supposed where the con- trary is not indicated. If the award embrace matters not included in the submission, it is fatal. If, however, the portion of the award which exceeds the sabmission can be separated from the rest without affecting the merits of the award, it may be rejected, and the rest will stand ; Otherwise the whole is void. If the submission specify the particu- 552 THE PROPERTY RIGHTS OF lars to which it refers, or if, after general ■words, it make specific exceptions, its words must be strictly followed. If these words are very general, they will be construed liberally, but yet without extending them beyond their fair meaning. On the other hand, all questions submitted must be decided, unless the sub- mission provides otherwise ; and either party may object to an award, that it omits the decision of some qiiestion submitted ; but the objection is invalid if it be shown that the party objecting him- self withheld that question from the arbitrators. Nor is it necessary that the award embrace all the topics which might be considered within the terms of a general submission. It is enough if it pass upon those questions brought before the arbitrators, and they are so far distinct and independent that the omission of others leaves no uncertainty in the award. If the award does not embrace all of the matters within the submission which were bi'ought to the notice of the arbitrators, it is altogether void. In the next place, an award must be certain ; that is, it must be so expressed that no re:isonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. For the very purpose of the submis- sion, and the end for which the law favors arbitration, is the final settlement of all questions and disputes ; and this is inconsistent with uncertainty. In the next place, the award must be possible ; for an award requiring that to be done which cannot be done is senseless and use- less. But the impossibility which vitiates an award is one which belongs to the nature of the thing, and not to the accidental dis- ability of the pai-ty at the time. Thus, if he be ordered to pay money on a day that is past, this is void ; so if he be required to give up a deed which he neither has nor may expect to have ; but if he be directed to pay money, the award is good, although he has no monejr, for it creates a valid debt against him. Nor can a party avoid an award on the ground of an impossibility created by him- self, after the award, or indeed beforehand, if he created it for the purpose of evading an expected award. This impossibility may be actual, or it may be that created by law ; for an award which requires that a party should do What the law forbids him to do is void, either in the whole, or else for so much as is thus against the law, if that illegal part can be severed from the rest. An award must be reasonable ; if it be of things in themselves of no value or advantage to the parties, or out of all proportion to the justice and requirements of the case, or if it undertake to deter- mine for the parties what they should determine for themselves, as, for instance, that the parties should intermarry, it is void. A CITIZEN OF THE UNITED STATES. 553 Lastly, the award must be final and conclusive. This necessity springs also from the very purpose for which the law favors arbitra- tion ; namely, the settlement and closing of disputes. It is not a valid objection to an award, that it is upon a condition, if the con- dition be clear and certain, consistent with the rest of the award, in itself reasonable, and such that there could be no doubt whether it were performed or not, or what were the rights or obligations de- pendent upon it. An award may be open to any or all of these objections in part, without being necessarily void in the whole. So much of it as is thus faulty is void ; but if this can be severed distinctly from the residue, leaving a substantial, definite, and unobjectionable award behind, this may be done, and the award then will take effect. It is therefore void in the whole, because bad in part, only where this part cannot be severed from the residue ; or where, if it be severed and amended, leaving the residue in force, one of the parties will be held to an obligation imposed upon him, but deprived of the advantage or compensation which it was intended that he should have. Generally, in the construction of awards, they are favored and enforced by the courts, wherever this can propei'ly be done. If the submission be in the most general terms, and the award equally so, covering " all demands and questions " between the par- ties, either party may still show that a particular demand included in the award either did not exist, or was not known to exist when the submission was entered into, or that it was not brought before the notice of the arbitrators, or considered by them ; and then the award will not be permitted to affect this demand. If, by an award, money is to be paid in satisfaction of a debt, this implies an award of a release on the other side, and makes this release a condition to the payment. There is no especial form of an award necessary in this country. If the submission requires that it should be sealed, it must be so. And if the submission was made under a statute, or under a rule of court, the requirements of the statute or the rule should be followed. But even here mere formal inaccuracies would seldom be permitted to vitiate or avoid the reward. If the submission contains other directions or conditions, as that it should be delivered to the parties in writing, or to each of the parties, such directions must be substantially followed. Thus, in the latter case, it has been held that it is not enough that a copy be delivered to one of the parties on each side, but each individual party must have one. It may happen, where an award is offered in defence, or as the ground of an action, that it is open to no objection whatever for 554 TEE PROPERTY RIGHTS OF any thing whicli it contains or which it omits ; and yet it may be set aside for impropriety or irregularity in the conduct of the arbitra- tors, or in the proceedings before them. Awards are thus set asida if " procured by corruption or undue means." This rule rests, in- deed, on the common principle that fraud vitiates and avoids every transaction. So, too, it may well be set aside if it be apparent on its face that the arbitrator has made a mateiial mistake of fact or of law. It must, however, be rather a strong case in which the court would receive evidence of a mere mistake, either in fact or in law, which did not appear in the award, and was not supposed to spring from or indicate corruption. Other instances of irregularity are the omission to examine witnesses ; or an examination of them when the parties were not present, and their absence was for good cause ; or a concealment by either of the parties of material circumstances : for this would be fraud. So if the arbitrators, in case of disagreement, were author- ized to choose an umpire, but drew lots which of them should choose him. But it has been held enough that each arbitrator named an umpire, and lots were drawn to decide which of these two should be taken, because it might be considered that both of these men were agreed upon. And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly or impliedly by attending before him, with a fall knowledge of the manner of the appointment, this covers the irreg- ularity. section ii. aHE revocation of a submission to arbitrators. It is an ancient and well-established rule, that either party may revoke his submission at any time before the award is made ; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award. And, generally, this power exists until the award is made. In this country, our courts have always excepted from this rule submissions made by order or rule of court; for a kind of juris- diction is held to attach to arbitrators under a rule, and the sub- mission is quite irrevocable, except for such causes as make it necessarily inoperative. There is a strong reason why a submission by order of court, or before a magistrate, should be preferred where it can be had, from the fact above stated, that the law permits any party who, finds an A CITIZEN OF THE UNITED STATES. 555 award is going against him to revoke his submission or reference when he will, before the award is made; provided the award was only by agreement out of court, or not before a magistrate. In some of our States, the statutes authorizing and regulating arbitra- tion provide for the revocation of the submission. It should he stated, however, that, as an agreement to submit is a valid contract, the promise of each party being the consideration for the promise of the other, a revocation of the agreement or of the submission is a breach of the contract, and the other party has his claim for damages; and damages would generally include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way. If either party exercise this power of revocation, he must give notice in some way, directly or indirectly, to the other party ; and until such notice, the revocation is inoperative. Bankruptcy or insolvency of either or both parties does not necessarily operate as a revocation, unless the terms of the agree- ment to refer, or the provisions of the insolvent law, require it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally, at least, no further power. The death of either party before the award is made vacates the submission, if that were made out of court, unless it provides in terms for the continuance and procedure of the arbitration, if such an event occur. But a submission under a rule of court is not re- voked or annulled even by the death of a party. So the death or refusal or inability of an arbitrator to act would annul a submission out of court, unless provided for in the agreement ; but not one under a rule of court, unless for especial reasons, satisfactory to the court ; which would make an appointment of a substitute if it saw fit to continue the reference. It may he well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, have any further control over it. If the submission provides for any method of delivering the award, this should be followed. If not, it is common for the referees to deliver the award to the prevailing party or his attorney, on pay- ment by him of the fees of arbitration. Then the prevailing party looks to the losing party for the whole, or a part, or none of the costs, as the award may determine. The award should he sealed, and addressed to all the parties ; and it should not be opened except in presence of all the parties, or of their attorneys, or with the consent of those absent indorsed on b&6 TEE PROPERTY RIGHTS OF the award. If the submission is under a rule of court, it should be returned to court by the arbitrators, or by the counsel receiving it, sealed, and opened only in court, or before the clerk, or with the written consent of parties. The submission, or agreement to refer, may he made by exchange of bonds, each party executing and delivering a bond to the other party. This would be a formal proceeding. But, as has been already said, no especial form is necessary ; and often a very simple one, like that below, would suffice. (174.) SIMPLE AGREEMENT TO REFER. Ksfow ALL MEN, That we, of and of do hereby promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between us (or any specific question or claim, describing if) to the arbitra- ment and determination of (here name the arbitrators') , whose decision and award shall be final, binding, and conclusive on us; (add, if there are more arbitrators than one, and it is intended that they may choose an umpire) and, in case of disagreement between the said arbitrators, they may choose an umpire, whose award shall be final and conclusive; (or add, if there be more than two arbitrators) and, in case of disagreement, the decision and award of a majority of said arbitrators shall be final and conclusive. In witness whekeof, &c. (Signatures.) (175.) ARBITRATION BOND, ONE OR MORE ARBITRATORS. Know all men bt these presents, That I (one of the parties), am held and firmly bound unto (the other party) , in the sum of doUars, lawful money of the United States of America, to be paid to the said (the other party), executors, administrators, or assigns; for which payment, well and truly to be made, I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of one thousand eight hundred and The condition or the above obligation is such, That if the s^bove bounden shall well and truly submit to the decision of (the referee), named, selected, and chosen arbitrator as well by and on the part and behalf of the said as of the said between whom a controversy exists, to hear all the proofs and allegations of the parties of and concerning (here set forth the claims or questions referred) and all matters relating thereto, and that the award of the said arbitrator A CITIZEN OF THE UNITED STATES. 557 be made in writing, subscribed by him (fir them"), and attested by a sub- scribing witness, ready to be delivered to the said parties on or beforethe day of next. But before proceeding to take any testimony therein, the arbitrator shall be sworn " faithfully and fairly to hear and examine the matters in controversy between the parties to these presents, and to make a just award, according to the best of his (or their) understanding." And the said p&,rties to these presents do hereby agree that judgment in the case (in question) shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy in that behalf, between them, shall be finally concluded. Then the above obligation to be void; other- wise to remain in full force and virtue. (Signature.') (Seal.) Sealed and delivered in presence of [To make the contract complete, the other party should execute and deliver a counterpart to this bond.] (176.) AWARD OF ARBITRATORS. To ALL TO WHOM THB8K PRESENTS SHALL COMK, We (nOmeS of (he arbitrators), to whom was submitted as arbitrators the matters in con- troversy existing between as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the day of one thousand eight hundred and more fully appears. Now, THEREFOKB, KNOW YE, That We the arbitrators mentioned in the said bonds, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing; that is to say, the said (here follows the award). In witness whereof, have hereunto subscribed these presents, this day of one thousand eight hundred and (Signatures.) In the presence of 558 TEE PROPERTY RIGHTS OF CHAPTER XXII. THE CAERIAGE OF GOODS A1^T> PASSEN"GBES. SECTION I. A PRIVATE CARRIER. One who carries goods for another is either a private carrier or a common carrier. The law makes an important distinction between them. A private carrier is one who carries for others once, or some- times, but who does not pursue the business of carrying as his usual and professed occupation. The contract between him and the owner of the goods which he carries is one of service, and is governed by the ordinary rules of law. Each party is bound to perform his share of the contract. Such a carrier must receive, care for, carry, and deliver the goods, in such wise as he bargains to do. If he carries the goods for hire, whether actually paid or due, he is bound to use ordinary diligence and care ; by which the law means such care as a man of ordinary capacity would take of his own property under similar circumstances. If any loss or injury occur to the goods while in his charge, from the want of such care or diligence on his part, he is responsible. But if the loss be chargeable as much to the fault of the owner .as of the carrier, he is not liable. The owner must show the want of care or diligence on the part of the private carrier, to make him liable ; but sUght evidence tending that way would suffice to throw upon him the burden of accounting satisfactorily for the loss. And if there is such negligence on the part of the carrier, or of a servant for whom he is responsible, the carrier is liable, although the. loss be caused primarily by a defect in the thing carried. If he carries the goods without any compensation, paid or prom- ised, he is, in the language of the law, a gratuitous bailee, or man- datary : he is now bound only to slight care ; which is such care as every person, not insane or fatuous, would take of his own prop- erty. For the want of this care, which would be gross negligence, he is responsible, but not for ordinary negligence. We sum up what may be said of the private carrier in the remark, that the general rules which regulate contracts and mntual A CITIZEN OF THE UNITED STATES. 559 obligations apply to the duties and the rights of a private carrier, with little or no qualification. But it is otherwise with a common carrier. « SECTION II. THE COMMON CARRIER. The law in relation to the rights, the dnties, and the responsibili- ties of a common earner "is quite peculiar. The reasons for it are discernible, but it rests mainly upon established usage and custom. And as these usages have changed considerably in modern times, this law has undergone important modifications. He is a common carrier " who undertakes, for hire, to transport the goods of such as choose to employ him from some known and definite place or places to other known and definite place or places." He is one who undertakes the carriage of goods as a business; and it is mainly this which distinguishes him from the private carrier. The rights and responsibilities of the common carrier may be briefly stated thus : He is bound to take the goods of all who ofier, if he be a carrier of goods, and the persons of all who ofier, if he be a carrier of passengers ; and to take due care and make due transport and delivery of them. He has a lien on the goods which he carries, and on the baggage of passengers, for his com- pensation. He is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss hap- pens fi"om the act of God, or from the public enemy. These three rules will be considered in the next section. The important thing to be remembered is, that a private carrier is not liable for injury to persons, or loss of or injury to goods, with- out fault or negligence on his part ; but a common carrier is liable, without any fault or negligence on his part. Truckmen or draymen, porters, expressmen, and others who undertake the carriage of goods for all applicants from one city or town to another, or fi'om one part of a city or town to another, are chargeable as common carriers. So, proprietors of stage-coaches are chargeable as common carriers of passengers, and of the baggage of passengers ; or of the baggage of others, if they so advertise themselves. So are hackney-coachmen within their accustomed range. If drivers of stages or omnibuses commonly carry and receive pay for goods or parcels which are not the baggage of passengers, and are held out or advertised, or generally known, as so carrying them, they are common carriers of goods, and the proprietors are* liable for the loss of such parcels, although neither they nor the 560 THE PROPERTY RIGHTS OF drivers were in fault. But if there is no such habit or usage, and the driver receives such a parcel to be carried somewhere, and is paid for it, the driver carries it as a private carrier, and not as a common carrier, and is chargeable only for negligence or fault. And if the line of carriages is established for passengers, and the driver does not account for what is paid him for occasional parcels, but takes it as his own perquisite, the proprietors are not answer- able even for the driver's fault or negligence, unless circumstances in some way bring the fault home to them. In this country, in recent times, the business of carrying goods and passengers is almost monopolized by what are called "express- men, by railroads, or by lines of steam-packets along our coasts, or upon our navigable streams or lakes. All these are undoubtedly common carriers ; and although their peculiar method of carrying on this business is new, there can be no doubt of their being, to all intents and purposes, common carriers. Ordinary sailing-vessels are sometimes said to be common car- riers. We should be disposed to restrict this term, however, to regular packets ; or, at most, to call by this name general freighting ships. It is not, however, necessary to consider this question, as water-borne goods are now almost always carried under bills of lading, which determine the relations and respective rights of the parties. The law of bills of lading is stated in the next section. The boatmen on our rivers and canals are common carriers ; and ferrymen are common carriers of passengers by their oiBce, and may become common cai-riers of goods by taking up that business. A steamboat usually employed as a carrier may do something else, as tow a vessel out of a harbor, or the like ; and the character of com- mon carrier does not attach to this especial employment, and carry with it its severe liabilities. Therefore, for a loss occurring to a ship in her charge while so employed, the owner of the steamer is not liable without negligence on his part, or on the part of those whom he employs. The same person may be a common carrier, and also hold other offices or relations. He may be a warehouseman, a whai-finger, or a forwarding merchant. The peculiar liabilities of the common carrier do not attach, to either of these offices or employments. Thus, a warehouseman is liable for loss of the goods which he takes for storage, only in case of his own negligence : he is not, as a com- mon carrier is said to be, an insurer of the goods. The question then arises, when the liability of such a person is that of a ware- houseman, and when it is that of a carrier. If a carrier receives goods to be stored until he can carry them, — a canal-boatman, for example, — or if, at the end of the journey. A CITIZEN OF THE UNITED STATES. 561 he stores them for a time, for the safety of the goods or the con- venience of the owner, while thus stored he is liable only as warehouseman. But if he puts them into his store or office only for a short time, and for his own convenience, either at the begin- ning or end of the transit (or journey), they are there in his hands as carrier. Where these relations seem to tmite and mingle in one person, it may be said to be the general rule, that, wherever the deposit, in whatever place or building, is secondary and subordinate to the carriage of the goods, which is therefore the chief thing, the party taking the goods is then a carrier, and is liable as such ; and other- wise, he is a depositary only of some kind. If, therefore, goods are delivered to a canier, or at his depot or receivifig-room, with direc- tions not to carry them until further orders, he is only a depositary, and not a carrier, until those orders are received ; but when they are received, he becomes a carrier ; and if the goods are afterwards lost or injured before their removal, he is liable as a common car- rier, without negligence or fault on his part. SECTION III. BILLS OF LADING. The rights and obligations of the ship-owner and the shipper are stated generally in an instrument of which the origin is lost in its antiquity, and which is now in universal use among commercial nations, with little substantial variety of form. It is called the Bill .of Lading. It should contain the names of the consignor, of the con- signee, of the vessel, of the master, of the place of departure, and of the place of destinatipn ; also the price of the freight, with primage and other charges, if any there be, and, either in the body of the bill or in the margin, the marks and numbers of the things shipped, with sufficient precision to designate and identify them. It should be signed by the master of the ship, who, by the strict maritime law, has no authority to sign a bill of lading until the goods are actually on board. There is some relaxation of this rule in practice, but it should be avoided. Usually one copy is retained by the master, and three copies are given to the shipper ; one of them he usually retains, another he sends to the consignee with the goods, and the other he sends to the consignee by some other conveyance. The delivery of the goods promised in the bill is to the consignee, or his assigns ; and the consignee may designate his assigns by writing on the back of the bill, " Deliver the within-named goods to A B," and signing this order ; or the consignee may indorse the 36 562 THE PROPERTY RIGHTS OF bill with his name only in blank, and any one who acquires an honest title to the goods and to the bill may write over the signa- ture an order of delivery to himself. The consignee has this power, if such be the usage, even if the word " assigns" be omitted. Such indorsement not only gives the indorsee a right to demand the goods, but makes him the owner of the goods. As the bill of lading is evidence against the ship-owner as to the reception of the goods, and their quantity and quality, it is common to say " contents unknown," or " said to contain," &c. But without any words of this kind, the bill of lading is not conclusive against the ship-owner in favor of the shipper, because he may show that its statements were erroneous through fraud or mistake. But the ship- owner or master is bound much more strongly by the words of the bill of lading, in favor of a third party, who has bought the goods for value and in good faith, on the credit of the bill of lading. In a case which occurred in New York, the court said that, as between the shipper of the goods and the owner of the vessel, a bill of lading may be explained or corrected as far as it is a receipt, that is, as to the quantity of the goods shipped, and the like ; but as between the owner of the vessel and an assignee of the bill, for a valuable con- sideration, paid on the sti-ength of the bill of lading, it may not be explained or corrected; because the master, by signing the bill, authorizes the purchaser to believe the goods are what the bill says they are. Eeceipts in the nature of a bill of lading, and sometimes so called, are in common use by our expressmen and other common carriers by land ; and the law of bills of lading would apply to such receipts, excepting so far as the difference between a maritime bill of lading and a land bUl of lading made a modification of the law necessary. * SECTION IV. THE OBLIGATION OF THE COMMON CARRIER TO RECEITE AND CARRY GOODS OR PASSENGERSi He cannot refuse to receive and carry goods offered, without good cause ; for, by his openly announcing himself in any way as engaged in this business, he makes an offer to the public which becomes a kind of contract as to any one who accepts it. He may demand his compensation, however; and, if it be refused, he may refuse to carry the goods ; nor is he bound to carry them if security be offered to him, but not the money. But if the freight-money be not demanded, the owner of the goods, if he is able, ready, and willing to pay it, has all his rights, although he does not make a A CITIZEN OF THE UNITED STATES. 563 formal tender «f the money. A carrier may refuse if his means of carriage are already fully employed. But, in a case where a rail- way company, being common carriers, had issued excursion-tickets for a journey, it was held that they were not excused from carrying passengers according to their contract, upon the ground that there was no room for them in their conveyance ; and that in order to avail themselves of this defence, they should make their contract conditional upon there being room. If the common earner cannot carry the goods without danger to them, or to himself or other goods ; or without extraordinary inconvenience ; or if they are not such goods as it is his regular business to cany, — he is ex- cused for not carrying them. He is always entitled to his usual charge ; but not to extraordinary compensation, unless for extraor- dinary service. The common carrier of goods is boxuid to receive them in. a suitable way, and at suitable times and places. If he has an office or station, he must have proper persons there, and proper means of security. During the transit, and at all stopping-places, due care must be taken of all goods ; and that means the kind and measure of care appropriate for goods of that description. If he have notice, by writing on the article or otherwise, of the need of peculiar care, — as, " Glass, with great care," or " This side uppermost," or " To be kept dry," — he is bound to comply with such directions, sup- posing them not to impose unnecessary care or labor. If he carry passengers, he must receive all who offer, unless he has some special and sufficient reason for refusing. In a case tried before the Supreme Judicial Court of Massa- chusetts, it was held, that if an innkeeper who has frequently entered a railroad depot and annoyed passengers by soliciting them to go to his inn receives notice from the superintendent of the depot that he must do so no more, and he nevertheless repeatedly enters the depot for the same purpose, and afterwards obtains a ticket for a passage in the c^s, with an actual intention of entering the cars as a passenger, and goes into the depot on his way to the cars, and the superintendent, believing that he has entered the depot to solicit passengers, orders him to ^o out, and he does not exhibit his ticket, nor give notice of his real intention, but presses forward towards the cars, and the superintendent and his assistants therefore forcibly remove him from the depot, using no more force than is necessary for that purpose, such removal is justifiable, and not an indictable assault and battery. A common carrier is bound to carry his passengers over the whole route, and at a proper speed, or supply proper means of trans- port ; to demand only a reasonable or usual compensatioh ; to notify 564 THE PROPERTY RIGHTS OF his passengers of any peculiar dangers ; to treat all alike, unless thei*e be actual and sufficient reason for the distinction, as in the filthy appearance, dangerous condition, or misconduct of a passenger ; and to behave to all with civility and decorum. He must also have proper carriages, and keep them in good con- dition, and not overload them; and suitable horses and drivers; stop at the usual places, with proper intervals for rest or food ; take the proper route ; and drive at proper speed ; and leave the passengers at the usual stopping-places, or wherever he agrees to. In none of these things can he depart from what is usual and proper at his own pleasure. And if by any breach of these duties a passenger is injured, the carrier is responsible. So if he puts his passengers in peril, and one of them be hurt by an effijrt to escape, as in jumping ofij it is no defence for the carrier to show that he would have been safe if he had remained. In one case, it was held that a common carrier who had received a pickpocket as a passenger on board his vessel, and taken his fare, could not put him on shore so long as he was not guilty of any im- propriety. But this may be doubted. The common earner must certainly employ competent and well-behaved persons for all duties ; and for failure in any of the particulars of his duties and obligations he is responsible not only to the extent of any damage caused there- by, but also, in many cases, for pain and injury to the feelings. He is also bound to deliver to each passenger all his baggage at the end of his journey ; and is held liable if he delivers it to a wrong party on a forged order, and without personal default. Lastly, he must make dne delivery of the goods at the proper time, in the proper way, and at the proper place, and to the proper person ; and this person should be some one who was authorized by the owner or sender to receive the goods. If a party authorized to receive the goods refase, or is unable, to do so, the carrier must keep, them for the owner, and with due care ; but now under the liability of a warehouseman, and not of a carrier : that is, he is now liable only for fault of some kind. So the carrier must keep the goods for the owner, if he has good reason to believe that the consignee is dishonest, and will defraud the owner of his property. As to the time when goods should be delivered, it must be within the proper hours for business, when they can be suitably stored ; or if the goods are delivered to the sender himself or at his house, then at some suitable and convenient hour. There must he no unnecessary delay, and the goods must be delivered aa soon after a detention as may be with due diligence. A CITIZEN OF THE UNITED STATES. 565 As to the way and tlie place at wMch the goods slionld be delivered, much must depend upon the nature of the goods, and much also upon the usage in regard to them, if such usage exists. The goods should be so left, and with such notice, as to secure the early, convenient, and safe reception of them by the person en- titled to have them. Something also must depend, on this point, on the mode of conveyance. A man may carry a parcel into the house, and deliver it to the owner or his servant ; a wagon or cart can go only to the gate, or into the yard, and there deliver wliat it carries. A vessel can go only to one wharf or another; and is bound to go to that which is reasonably convenient to the con- signee, or to one that was agreed upon ; but a vessel is not always- bound to comply with the requirements of the consignee as to the very wharf the goods should be left at, but may leave the goods at any safe, convenient, and accessible wharf at which such goods are usually left. Where the goods are not delivered to the owner personally, or to his agent, immediate notice should be given to the owner. The carrier is generally obliged to give notice of the delivery of goods ; and if the owner has in any way designated how the goods may be delivered to himself, he is bound to obey this direction. The notice must be prompt and distinct. If the goods are delivered at an unsuitable or unauthorized place, no notice will make this a good delivery. Railroads terminate at their station ; and although goods might be sent by wagons to the house or store of consignees, this is not done, as it is considered that the railroad carrier has finished his transit at his own terminus. Usually the consignee of goods sent by railroad has notice from the consignor when to expect them ; and this is so common that it is seldom necessary, in fact, for the agents of the railroad to give notice to the consignee. But this should be given wher^ it is necessary ; and should be given as promptly, directly, and specifically as may be necessary for the pur- pose of the notice. A railroad company may be compared to owners of ships in this respect, that neither can take the cars or the ships farther than the station or the wharf, and therefore may deliver the goods there. But a carrier by water is bound to give notice that the goods are on the wharf, and is not exonerated as carrier until he gives such notice ; whereas, a railroad company is not bound to give notice. The rea- son of the difference is this : the consignee of goods sent by water cannot know when they will arrive ; but when goods are sent by rail, the time of their arrival may be known with sufficient accuracy. 566 THE PROPERTY RIGHTS OF It may happen that some third party may claim the goods under a title adverse to that of the consignor or consignee. If the carrier refiise to deliver them to this third party, and it turns out that the claimant had a legal right to demand them, the carrier might be liable in damages to him. But the carrier may and should demand full and clear evidence of the claimant's title ; and if the evidence be not satisfactory he may demand security and indemnity. If the evidence or the indemnity be withheld, he certainly should not be held answerable for any thing beyond that amount which the goods themselves would satisfy, for he is in no fault. If he delivers the goods to such claimant, proof that the claimant had good title is an adequate defence against any suit by the consignor or consignee for non-delivery. SECTION V. THE LIEN OF THE COMMON CAKRIER. The legal meaning of this word, as we have said before when we have had occasion to use the word in preceding chapters, is the right of holding or detaining property until some charge against it, or some claim upon the owner on account of it, is satisfied. The common carrier has this right against all the goods he car- ries, for his compensation. While he holds them for this purpose, he is not liable for loss or injuiy to them as a common carrier ; that is, he is not liable unless the injury happen «from his own fault. He may not only hold the goods for his compensation, but may recover this out of them, by any of the usual means in which a lien upon personal chattels is made productive. That is, he holds them just as if they were pledged to him by the owner as a security for the debt. Therefore, if the debt be not paid in a reasonable time after it is due and demanded, the carrier may have a decree of a court of equity for their sale ; or may sell them himself at auction, retaining his pay from the proceeds, and paying over the remainder. But to make this course justifiable and safe, the carrier must wait a reasonable time, and give full notice of his intention, so that the owner may have a convenient opportunity to redeem the goods ; and there must be proper advertisement of the sale, and every usiial pre- caution taken to insure a favorable sale ; and the carrier must not himself buy the goods, and must act in all respects with entirO honesty. A CITIZEN OF THE UNITED STATES. 567 SECTION VI. THE LIABILITY OF THE COMMON CARRIER. This is perfectly well established as a rule of law, although it is very exceptional and peculiar. It is sometimes said to arise from the public carrier being a kind of public officer. But the true reason is the confidence which is necessarily reposed in him, the power he has over the goods intrusted to him, the ease with which he may defraud the owner of them and yet make it appear that he was not in fault, and the difficulty which the owner might have in making out proof of his default. This reason it is important to re- member, because it helps us to construe and apply the rules of law on this subject. Thus, the rule is that the common carrier is liable for any loss or injury to goods under his charge, unless it be caused by the act of God or by the public enemy. The rule is intended to hold the common carrier responsible wherever it waa possible that he caused the loss, either by negligence or design. Hence, the act of God means some act in which neither the carrier himself, nor any other man, had any direct and immediate agency. It| for example, a house in which the goods are at night is struck by lightning, or blown over by a tempest, or washed away by inundation, the carrier is not liable. This is an act of God, although man's agency interferes in causing the loss ; for without that agency, the goods would not have been there. But no man could have directly caused the loss. On the other hand, if the building was set on fii'e by an incendiary at midnight, and the rapid spread of the flames made it absolutely impossible to rescue the goods, this might be an inevitable accident if the carrier were wholly innocent, but it would also be possible that the incendiary was in collusion with the carrier for the purpose of concealing his theft ; and therefore the carriCT would be liable for such a loss, however innocent. As a general rule, the common carrier is always liable for loss by fire, unless it be caused by lightning, an accidental fire not being considered an act of God, or a peril of the sea ; and this rule has been applied to steamboats and other vessels. So, it may be true that, after the lightning, the tempest, or inundation, the carrier was negligent, and so lost the goods, which might have been, saved by proper efforts, or that he took the opportunity to steal them. If this could be shown, the carrier would of course be liable ; but the law wilf not suppose this without proof, if the first and main cause were such that the carrier could not have been guilty in respect to it. So, a common carrier would be liable for a loss caused by a rob- bery, however sudden, unexpected, and irresistible, or by a theft. 568 TUE PROPERTY RIGHTS OF however wise and full his precautions, and however subtle and ingenious the theft, although either of these might seem to be un- avoidable by any means of safety which it would be at all reasonable to require. The general principles of agency extend to common carriers, and make them liable for the acts of their agents, done while in the discharge of the agency or employment. So, the knowledge of his agent is the knowledge of the carrier, if the agent be authorized expressly, or by the nature of his employment, to receive this notice or knowledge. But an agent for a common carrier may act for himself, — as a stage-coachman in carrying parcels, for which he is paid personally and does not account with his employer, — and then the employer, as we have said, is not liable, unless the owner of the goods believed the stage-coachman carried the goods for his em- ployer, and was justified by the facts and apparent circumstances in BO believing. A carrier may be liable beyond Ms own route. It is very com- mon for carriers, who share between them the parts of a long route, to unite in the business and the profits, and then all are liable for a loss on any part of the route. If they are not so united in fact, but say they are so, or say what indicates that they are so, they justify a sender in supposing they are united, and then they are equally liable. If a carrier takes goods to carry only as far as he goes, and then engages to send them forward by another carrier, he is liable as car- rier to the end of his own route ; he is liable also if he neglects to send the goods on in a proper manner ; but he is not liable for what may happen to them afterwards. SECTION VII. THK CARRIER OF PASSENGERS. The carriers of passengers are under a more limited liability than the carriers of goods. This is now well settled. The reason is, that they have not the same control over passengers as over goods ; can- not fasten, thenx down, and use other means of securing them. But while the liability of the carrier of passengers is thus mitigated, it is still stringent and extreme. No proof of care will excuse the carrier if he loses goods committed to him. But proof of the utn^st care will excuse him for injury done to passengers ; for the carrier of passengers is liable for injury to them, unless he can show that he took all possible care, — giving always a reasonable construction to this phrase ; and in the case of railroad companies there is authority A CITIZEN OF TBE UNITED STATES. 569 for using the words in almost their literal meaning, — that is, for holding them liable for all injury to passengers which could have been possibly avoided. SECTION vin. A NOTICE BY THE CARRIER RESPECTING HIS LIABILITY. The common carrier has a right to make a special agreement with the senders of goods, which shall materially modify, or even wholly prevent, his liability for accidental loss or injury to the goods. The question is, What constitutes such a bargain? A mere notice that the carrier is not responsible, or his refusal to be respon- sible, although brought home to the knowledge of the other party, does not necessarily constitute an agreement. The reason is this : the sender has a right to insist upon sending his goods, and the passenger has a right to insist upon going himself with customary baggage, leaving the carrier to his legal responsibilitj' ; and the car- rier is bound to take them on these terms. If, therefore, the sender or the passenger, after receiving such notice, only sends or goes in silence, and without expressing any assent, especially if the notice be given at such time or under such circumstances as would make it inconvenient for the sender npt to send, or for the passenger not to go, then the law will not presume from his sending or going an assent to the carrier's terms. But the assent may be expressed by words, or made manifest by acts ; and it is in each case a question of evidence for the jury whether there was such an agreement. But a notice by the carrier, which only limits and defines his liability to a reasonable extent, without taking it away, as one which states what kind of goods he will carry, and what he will not ; or to what amount only he will be liable for passengers' baggage, without special notice ; or what information he will require, if certain arti- cles, as jewels or gold, are carried; or what increased rates must be paid for such things, — any notice of this kind, if in itself reasona- ble and just, will bind the party receiving it. No party will be aflfeoted by any notice, — neither the carrier, nor a sender of goods, nor a passenger, — unless a knowledge of it can be brought home to him. In a case in Pennsylvania, where the notice was in the English language, and the passenger was a German who did not understand English, it was held that the car- rier must prove that the passenger had actual knowledge of the limitation in the notice. 570 THE PROPERTY RIGHTS OF But the knowledge may be brought home to him by indirect erideHCBi As by showing that it was stated on a receipt given to him, or on a ticket sold him, or in a newspaper which he read, or even that it was a matter of usage, and generally known. This question is one of fact, which the jury will determine upon all the evidence, under the direction of the court. And if the notice is ambiguous, and may have two meanings, they will be directed to give it the meaning which is against the carrier, because it was his business to make it plain and certain. Any fraud towards the carrier, as a fraudulent disregard of a notice, or an effort to cast on him a responsibility he is not obliged to assume, or to make his liability seem to be greater than it really is, will extinguish the liabiUty of the carrier so fer as it is affected by such a fraud. If a carrier gives notice which he is authorized to give, the party receiving it is bound by it, and the carrier is under no obli- gation to make a special inquiry or investigation to see that the notice is complied with, but may assume that this is done. It should, however, be remarked that such notice affects the lia* bility of the common carrier only so far as it is peculiar to him ; that is, his liability for a loss which occurs without his agency or fault ; for he is just as liable as he would be without any notice for a loss or injury caused by his own negligence or default. Perhaps a common carrier might make a valid bargain which would protect him against every thing but his own wilful or fraudu' lent misconduct. But no bargain could be valid which would pro- tect him against this. SECTION IX. THE CARRIER'S LIABILITY FOR GOODS CARRIED BY PASSENGERS. A carrier of goods knows what goods, or rather what parcels and packages, he receives and is responsible for. A carrier of pas- sengers is responsible for the goods they carry with them as bag- gage ; what that is, the carrier does not always know j and he is responsible only to the extent of what might be fairly and naturally carried as baggage. This must always be a question of fact, to be settled as such by the jury, upon all the evidence, and under the direction of the court. But there can be no precise and definite standard. A traveller on a long journey needs more money and more baggage than on a short one ; one going to some places and for some purposes needs more than one going to other places or for other purposes. A CITIZEN OF THE UNITED STATES. 571 In New York it was decided that baggage does not properly include money in a trank, or any articles usually carried about the person. And in another New York case, it ■was held that, where the baggage of a passenger consists of an ordinaiy travelling-trunk, in which there is a large sum of money, such money is not consid- ered as included under the term baggage, so as to render the carrier responsible for it. But generally a passenger may carry, as baggage, money not exceeding an amount ordinarily carried for travelling expenses. So in Massachusetts it was held that common carriers are responsible for money bona fide included in the baggage of a passenger, for travelling expenses and personal use, to an amount not exceeding what a prudent person might deem proper and neces- sary for the purpose. In Pennsylvania, carriers have been held responsible for ladies' trunks containing apparel and jewels. And in Illinois, a common carrier of passengers has been held liable for the loss of a pocket- pistol, and a pair of duelling-pistols, contained in the carpet-bag of a passenger, which was stolen out of the possession of the carrier. But in Tennessee, it has been held that "a silver watch, worth about thirty-five dollars, also medicines, handcuffs, locks, &c., worth about twenty dollars," were not included in the term bag- gage, and that the carrier was not responsible for their loss. In - Ohio, it has been held that a gold watch, of the value of ninety-five dollars, was a part of the traveller's baggage, and his ti-unk a proper place to carry it in. In another New York case, it has been held that the owners of steamboats were liable as common carriers for the baggage of passengers ; but, to subject them to damages for loss thereof it must be strictly baggage,- — that is, such articles of neces- sity and personal convenience as are usually carried by travellers. And it was accordingly held, in that case, that the carrier was not liable for the loss of a trunk containing valuable merchandise and nothing else, although it did not appear that the plaintiff had any other trunk with him. But in a case in Pennsylvania, where the plaintiff was a carpenter moving to the State of Ohio, and his trunk contained carpenters' tools to the value of fifty-five dollars, which the jury found to be the reasonable tools of a carpenter, it was held that he was entitled to recover for them as baggage. There is some diversity, and perhaps some uncertainty, in the application of the rule ; but the rule itself is well settled, and a reasonable construction and application of it must always be made; and, for this pui"pose, the passenger himself, and all the circum- stances of the case, must be considered. The purpose of the rule is to prevent the carrier from becoming liable by the fraud of the passenger, or by conduct which would 572 THE PROPERTY RIGHTS OF have the eflTect of fraud ; for this would be the case if a passenger should caiTy merchandise by way of baggage, and thus make the carrier of passengers a carrier of goods without knowing it and without being paid for it. Generally, a commoa carrier of passengers, by stage, packet, steamer, or cars, carries the moderate and reasonable baggage of a passenger, without being paid specifically for it. But the law con- siders a payment for this as so far included in the payment of the fare as to form a sufficient ground for tlie carrier's liability to the extent above stated. The carrier is only liable for the goods or baggage delivered to him and placed under his care. Hence, if a sender of goods send his own servant with them, and intrust them to him and not to the carrier, the carrier is not responsible. So, if a passenger keeps his baggage, or any part of it, on his person, or in his own hands, or within his own sight and immediate control, instead of delivering it to the carrier or his servants, the carrier is not liable, as carrier, for any loss or injury which may happen to it ; that is, not without actual default in the matter. Thus, in an action brought in New York to charge a railroad company, as common carriers, for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen ; and it was held that the defendants were not liable. But if the baggage of a passenger is delivered to a common carrier, or his servant, he is lia- ble for it in the same way and to the same extent as he is for goods which he carries. In this country the rules of evidence permit the traveller to main- tain his action against the carrier by proving, by his own testimony, the contents of a lost trunk or box, and their value. And the testi- mony of the wife of the owner is similarly admissible. But it is always limited to such things — in quantity, quality, kind, and value — as might reasonably be supposed to be carried in such a trunk or valise. The rule, with this limitation, seems reasonable and safe, and is quite generally adopted. In Massachusetts it was distinctly denied by the Supreme Court, but was afterwards estab- lished by statute. The common carrier of goods or of passengers is liable to third parties for any injury done to them by the negligence or default of the carrier, or of his servants. And it would seem that he is liable even for the wilful wrong-doing of his servants, if it was committed while in his employ, and in the management of the conveyance under his control, although the wrong was done in direct opposition A CITIZEN OF THE UNITED STATES. 573 to his express commands. So he is for injury to property by the wayside, caused by his fault. But the negligence of the party suffer- ing the injury, if it was material and contributed to the injury, is a good defence fgr the carrier ; unless malice on the carrier's part can be shown. Where the party injured is in fault, the common carrier has still been held liable,' if that fault was made possible and injurious through the fault of the carrier. If passengers are carried gratuitously, that is, without pay, the common carrier is still liable for injury caused by his negligence. Whether a railroad company is responsible for fire set to build- ings or property along the road, without negligence on its part, has been much considered in this countiy. In some of our States they are made so liable by statute provision. And this fact, together with the general principles of liability for injury done, would seem to lead to the conclusion that they are not liable, unless in fault, or unless made liable by statute. We annex to this chapter the Forms of receipts in the nature of a bill of lading, in common use by our steam packets and by express companies. Such a paper given and received would constitute a contract. (177.) STEAM PACKET COMPANY. Marks and Numbers. Received fhom the following articles, being marked and numbered as in the margin, in apparent good order, the con- tents and value unknown, to be transported from to on one of the company's steamers, and to be delivered on their wharf in in like good order and condition, the dangers of the sea, of fire on board or on wharf, collision, and all other accidents excepted. Dated at 186 \ For the company. 674 THE PROPERTY RIGHTS OF (178.) Duplioate. EXPKESS COMPANY. FAST FREIGHT LINE. 18 Received prom the following packages, in apparent good order, contents and value unknown : — EXPRESS COMPAlSrY. Advanced Charges, $ Marked and numbered as in the D'ble 1st class, cents per 100 lbs. margin, to be forwarded by raiboad and delivered at upon 1st class, cents per 100 lbs. payment of freight therefor, as noted in the margin, subject to the condi- 2d class, cents per 100 lbs. tions and rules on the back hereof, and those of the several railroads over 3d class, cents per 100 lbs. which the property is transported, which constitute a part of this con- 4th class, cents per 100 lbs. tract. AS PER CLASSIFICATION OH BACK. Agent. On the back of this receipt is a minute and very fall classifica- tion of all articles likely to be ofiered for transportation, followed by the CONDITIOKS AND RULES. The destination, name of the consignee, and weight of all articles of freight must be plainly and distinctly marked, or no responsibility will be taken for their miscarriage or loss; and when designed to be forwarded, after transportation on the route, a written order must be given, mth the particular line of conveyance marked on the goods, if any such be preferred or desired. The companies will not hold themselves liable for the safe carriage or custody of any articles of freight, unless receipted for by an authorized agent; and no agent of the line is authorized to receive, or agree to trans- port, any freight which is not thus receipted for. No responsibility will be admitted, under any circumstances, to a greater amount upon any single article of freight than $200, unless upon notice given of such amount, and a special agreement therefor. Specie, drafts, bank-bills, and other articles of great intrinsic or representative value, will A CITIZEN. OF TEE UNITED STATES. 575 only be taken upon a representation of their value, and by a special agree- ment assented to by the superintendent of the receiving road. The companies will not hold themselves liable at all for injuries to any articles of freight during the course of transportation, arising from the weather, or accidental delays, or natural tendency to decay. Nor will their guaranty of special despatch cover cases of imavoidable or extraordinary casualties or storms, or delays occasioned by low water and ice; and may be stored at the risk and expense of the owner. Nor will they hold them- selves liable, as common carriers, for such articles, after their arrival at their place of destination at the company's warehouses or depots. Carriages and sleighs, eggs, furniture, looking-glasses, glass and crockery ware, machinery, mineral acids, piano-fortes, stoves and castings, sweet potatoes, wrought marble, all liquids put up in glass or earthen- ware, fruit, and live animals, will only be taken at the owner's risk of fracture or injury during the course of transportation, loading and unload- ing, unless specially agreed to the contrary. Gunpowder, friction matches, and like combustibles will not be re- ceived on any terms; and all persons procuring the reception of such freight, by fraud or concealment, wiU be held responsible for any damage which may arise from it while in the custody of the company. It is further stipulated and agreed, that goods shipped to points west of shall be subject to a change in classification, and cor- responding change of rates beyond those points. Cases or packages of boots and shoes, and of other articles Uable to peculation or fraudulent abstraction, must be strapped with iron or wood, or otherwise securely protected, or the companies will not be liable for diminution 'of the original contents; and the companies will hold the freighter, in all cases, to bear the loss arising from improper packing. It is also agreed between the parties that the said companies, and the railroads and steamboats with which they connect, shall not be held accountable for any deficiency in packages, if receipted for to them in good order. All articles of freight arriving at their places of destination must be taken away within twenty-four hours after being unladen from the cars, each company reserving the right of charging storage on the same, or placing the same in store at the risk and expense of the owner, if they see fit, after lapse of that time. 576 THE PROPERTY RIGHTS OF CHAPTER XXIII. FIEE INSURANCE. SECTION I. THE TJSUAI. SUBJECT AND FORM OF THIS INSURANCE. This kind of insurance is sometimes made to indemnify against the loss by fire of ships in port ; more often of warehouses, and mercantile property stored in them ; or of personal property in stores or factories, in dwelling-houses or barns, as merchandise, furniture, books, and plate, or pictures, or live-stock. But the most common application of this mode of insurance is to dwelling- houses. It may he effected by any individual who is capable of making a legal contract. In fact, however, it is always, or nearly always, in this country, and we suppose elsewhere, made by companies. There are stock companies, in which certain persons own the capital and take all the profits by way of dividends; and mutual companies, in which every one who is insured becomes thereby a member, and the net profits, or a certain proportion of them, are divided among all the members in such manner as the charter or by-laws of the company may direct. Sometimes both kinds are united, in which case there is a capital stock provided, which is a permanent guaranty fund over and above the premiums received, and a certain part or proportion of the net profits is paid by way of dividend upon this fund, and the residue divided among the insured. Of late years, the number of mutual fire-insurance companies has greatly increased in this country, and much the largest amount , of insurance against fire is efiected by them. The principal reason for this is, undoubtedly, their greater cheapness, the premiums required by them being, in general, much less than in the stock ofllices. For example, if the insurance is efiected for seven years, which is a common period, an amount or percentage is charged, about the same as that charged by the stock companies, or a little more. Only a small part of this is taken in cash ; for the rest a premium note or bond is given, promising to pay whatever part of the amount may be needed for losses which shall occur during the period for which the note is given. More than this, therefore, tho insured cannot be bound to pay, and it frequently happens that no A CITIZEN OF TEE UNITED STATES. 577 assessment whatever is demandecl ; and sometimes, where the company is well established, and does a large business upon sound principles, a part of the money paid by him is refunded when the insurance expires, or credited to him on the renewal of the policy, if such be his wish. The disadvantage of these mutual companies is, that the pre- miums paid and premium notes constitute the whole capital or fund out of which losses are to be paid for. To make this more secure, it is provided by the charter of some companies that they shall have a lien on the land itself on which any insured building stands, to the amount of the premium. But while this adds very much to the trustworthiness of the premium notes, and so to the availability of the capital, it is, with some persons, an objection that their land is thus subjected to a lien or incumbrance. There is another point of difference which recommends the stock company rather than the mutual company ; it is, that the stock company will generally insure more nearly the full value of the property insured, while the mutual companies are generally re- strained by their charters from insuring more than a certain pro- portion, namely, from one-half to three-fourths, of the assessed value of the property. It would follow, therefore, that one insured by a mutual company cannot be fully indemnified against loss by fire. USAGE. The method and operation of fire insurance have become quite uniform throughout this country; and any company may appeal to the usage of other companies to answer questions which have arisen under its own policy ; only, however, within certain rules, and under some well-defined restrictions. In the first place, usage may be resorted to for the purpose of explaining that which needs explanation, but never to contradict that which is clearly expressed in the contract. And no usage can be admitted even to explain a contract, unless the usage be so well established, and so well known, that it may reasonably be supposed that the parties entered into the contract with reference to it. And not only the terms of the contract must bp duly regarded, but those of the charter or act of incorporation. In regard to the execution of a fire policy, and what is neces- sary to constitute such execution, we say that delivery is not strictly necessary, and a signed memorandum may be sufficient, or, indeed, an oral bargain only, and that this insurance may be effected by cor- respondence, and that the contract is completed when there is a proposition and assent. 37 578 THE PROPERTY RIGHTS 6F If proposals are made on either side by letter, and accepted by the other party, also by letter, this is a valid contract of insurance as soon as the party accepting has mailed his letter to that effect, if he have not previously received notice of a withdrawal of the proposals. It has been held in an action on a fire policy, that a memoran- dum made on the application-book of the company by the pres- ident, and signed by him, was not binding, where the party to be insured wished the policy to be delayed until a different adjustment of the terms could be settled, and, after some delay, was notified by the company to call and settle the business or the company would not be bound, and he did not call. The court held that there was here no consummated agreement. A subsequent adoption or rati- fication of a policy made by an agent is equivalent, either in a fire or marine policy, to the making originally of the contract. SECTION II. THE CONSTRUCTION OF POMCIES AGAINST FIRE. It is sufficient if the words of the policy describe the persons, the location, and the property, with so much distinctness that the court and jury have no difiiculty in determining their identity with a cer- tainty which prevents any real and substantial doubt. In the construction of this as of other contracts, the intention of the parties is a very important and influential guide; but it must be the intention as expressed ; for otherwise, a contract which was not made would be substituted for that which was made ; and evi- dence from without the contract would be permitted to vary and to contradict it. Thus, where stock in trade, household furniture, linen, wearing-apparel, and plate were insured in a policy, the court held that the term " linen " must be confined to " household linen," and would not include linen drapery goods purchased on speculation. But in a case where the policy required that the houses, buildings, or other places where goods are deposited and kept, shall be truly and accurately described, and the place was described as the dwelling- house of the insured, whereas he occupied only one room in it as a lodger, this description was held sufficient. It was held in another case that the insurance by an innkeeper against fire of his " interest in the inn and offices " does not cover the loss of profits during the repair of the damaged premises. And in another, the words " stock in trade," when used in a policy of in- surance in reference to the business of a mechanic, as a baker, were A CITIZEN OF THE UNITED STATES. 579 held to include not only the materials used by him, but the tools, fixtures, and implements necessary for the carrying on of his biisi- ness ; and the words in question were held to have a broader appli- cation to the business of mechanics than to that of merchants. A policy upon wearing-apparel, household furniture, and the stock of a grocery, covers linen sheets and shirts actually laid in for fiinily use, and such as were laid in for sale or traffic in the usual way in the stoi'e ; but not such as, being smuggled, were concealed and intended for secret sale. So, if the designation of the insured be common to many persons, the intention of the parties must decide for whom it is made. What- ever is written on any part of the sheet containing the policj', or even on a separate paper, if referred to or signed by the parties as a part of the policy, is thereby made a part of it. But things said by either party while making their bargain, or written on other paper, and not so referred to or signed, form no part of it. Alterations may be made at any time by consent. But a ma- terial alteration by either party, without the consent of the other, renders the contract void ; although it was made honestly, in the hope or belief of its being assented to. A court of equity will gen- erally correct a material mistake of fact. A policy may be assigned, unless this is prohibited by the policy itself, and the assignee may sue in the name of the assignor. If the loss is made by the policy payable " to order" or " to bearer," it will then be negotiable by indorsement or delivery ; but it is not certain that the transfei-ee can even then sue in his own name. In New York and some other States, not only these 'assignees, but ther assignees of debts or contracts, may sue in their own names. If the insured transfers the property, unaccompanied by a trans- fer of the policy with consent of the insurer, this discharges the policy, unless it was expressly made for the benefit of whoever should be owner at the time of the loss. There is usually a clause to the eflfect that the policy is void if assigned without the consent of the insurers. But this does not apply to an assignment by force of law, as in a case of insolvency, or in a case of death. And after a. loss has occurred, the claim against the insurers is always assignable like any other debt. And a seller who remains in possession of the property as trustee for the purchaser, or a mortgagor retaining pos- session, may retain the policy, and preserve his rights. It is a general rule with our mutual insurance companies that every one who is insured becomes a member of the company. And it follows, necessarily, that every insured party is bound by all the laws and rules of the company, as by laws and rules of his own making. 580 TEE PROPERTY RIGHTS OF APPLICATIONS. The mutual fire-insurance companies, by a law or rule wMch is perhaps universal, require that an application shall be made in writ- ing; and this written application is after a peculiar form, which is prescribed by the rules. It always contains certain definite state- ments, which relate to those matters which affect the risk of fire importantly. In each form of application sundry questions are put, which are quite numerous and specific, and are those which experi- ence has suggested as best calculated to elicit all the information needed by the insurers, for the purpose of estimating accurately the value of the risk they undertake. Specific answers must be given to all these questions. And this application, with all these statements, questions, and answers, is expressly referred to in the policy, and made a part of the contract. It is common to state in the printed part of the formal applica- tion that it is made on such and such conditions ; and these usually follow those statements which are deemed the most material in estimating the risk. These would be considered as express condi- tions, and therefore the substantial truth of all of them is a cortdi- tion precedent to any right of indemnity in the insured party. By the legal phrase condition precedent is meant a condition which must be fully complied with before the contract can take effect. Hence, if any of these statements are false, the policy will be void. Sometimes there is no distinct application in writing, but the policy itself states the facts relied upon. For this purpose it con- tains many blanks, which are filled up according to the circum- stances of each case". It may happen that what is written in these places may be inconsistent with what is printed ; and then it is a general rule that what is written prevails, as that is more immedi- ately and specifically the act of the parties, and may be supposed to express their precise purpose better than the printed phrases which were prepared without especial reference to any particular case. But this rule would not be applied where it would obviously operate injustice. Policies of fire insurance, especially of mutual companies, often contain a scale of premiums, calculated upon different classes of buildings, of stocks in trade, or other property, in conformity with what is thought to be the greater or less risk of fire in each case. This is a matter of special importance ; and if a statement were made by an applicant which put his building or property into a class of which the risk and premium were less than those for the A CITIZEN OF THE UNITED STATES. 581 class to which tlie building or property actually belonged, and in that way an insurance was effected at such less premium, the policy would undoubtedly be void, even if the false statement were made innocently. When certain trades or occupations, or certain uses of buildings, or kinds and classes of property, are enumerated as "hazardous," or otherwise specified as peculiai-ly exposed to risk, the rule, The expression of one thing excludes what is not expressed, is applied, and sometimes with severity. This is better illustrated by marine insurance. Thus, in a case in New York, precisely in point, dried fish were enumerated in the memorandum clause as free from average, and " all other articles perishable in their own nature." It was held that the naming of one description of fish implied that other fish were not intended ; and that the subsequent words, "all other articles perishable in their own nature," were not applicable, and did not repel this implication. The same rule would be ap- plied, for the same reason and in the same way, to cases of fire insurance. If the printed conditions represent one class of buildings, or goods, or property, as more hazardous than another, it would not be competent for the insured, whose property was of that kind, to prove by other testimony that it was not more hazardous in fact. More- 'over, a description of the property insured, as it is a description for a contract on time, is held to amount to an agreement that the property shall continue within the class where it is put, or at least shall not enter into another that is declared to be more hazardous, during the operation of the policy. There must, however, be a rational, and perhaps a liberal, construction of this rule. Thus, it does not apply where a single article, or one or two, are kept in a store as a part of the stock of goods, although that article, as cotton in bales, is among those enumerated as hazardous. So if the " storing of spirituous liquors " is prohibited, the keeping of wine or brandy in a private house for consumption, or even for sale by retail to boarders, would not discharge the insurers. In New York it was held that where oils and turpentine, which were classed among hazardous or extra-hazardous articles, were introduced for the purpose of repairing and painting the dwelling insured, and the dwelling was burned while being so repaired, the insurers were liable. Bat if the building is generally appropriated to a more hazardous occupation than the proposals or the policy indicate, or if the jury find that the introduction of these goods materially increased the actual risk, evidence would be received as to the intention of the parties to the contract ; and the true meaning of the contract and the intent of the parties would be 582 THE PROPERTY RIGHTS OF considered. Thus, where the "storing" of certain goods was pro- hibited, as " hazardous," it was held . that having a pipe or two of such articles in the cellar, from which smaller vessels in the store were replenished, did not come within the meaning of the word " storing " in the policy, any more than would the keeping of such articles for home consumption in a dwelling-house insured by a sim- ilar policy. So a description of a house as " at present occupied as a dwelling-house, but to be hereafter occupied as a tavern, and privileged as such," is only permission that it should be a tavern, and creates no obligation .to occupy and keep it as a tavern on the part of the insured. But if the language is, " to be occupied as so or so, but not " in some other certain way, this restriction is a part of the bargain ; and, if the building is occupied in the way prohibited, the insurers are discharged. So if the premises are described as a " private residence," the insurance is not avoided by the fact that the occupants moved out of the house, leaving it vacant, and not the " residence " of any one, unless the jury find that the risk was thereby materially increased. But where the property was represented as a " tavern barn," and the insured permitted its occupation as a livery-stable, the policy was held to be discharged, although the keeper of the livery-stable was removable at the pleasure of the insured. Where a building in- sured by a company was represented, at the time of effecting the insurance, as connected with another building on one side only, and before the loss happened it became connected on two sides, the policy was held not to be avoided unless the risk thereby became greater. The general subject of alterations of property under insurance against fire is not without difficulty. On the whole, however, mere alterations, although expensive and important, do not necessarily and of themselves avoid the insurance or discharge the insurers; but they have this effect if they are found by the jury to increase the risk materially, or if they are specifically prohibited in the policy. Still other questions may arise where material alterations are made, all of which are not easily disposed of The following are instances : Suppose one gets his dwelling-house insured for seven years, truly describing it as having a shingled roof. After two or three years he determines to take off the shingles, but says nothing to the insurers about it. If he now puts on slates, or a metallic covering which does not require soldering,' he does not increase the risk ; nor is the work of putting on the new covering hazai'dous, and we see no grounds for its having any effect on the policy. But suppose the new metallic covering is secured by soldering. This ia A CITIZEN OF THE UNITED STATES. 583 certainly a hazardous operation. And if the building takes fire in consequence of this operation, the insurers are certainly dis- charged. If the operation is conducted safely through, and the work is entirely finished, we consider it clear that this greater hazard for a time has no ejffect whatever on the policy after that time, and after all the greater hazard has expired. But let us suppose tliat while this operation is going forward, and the house is thereby certainly exposed to an increase of risk, the house is set on fire by an incen- diary, — without the slightest reference to this alteration, — and burns down. It is not, perhaps, settled, either by authority or prac- tice, whether the insurers are or are not discharged. I am, how- ever, of opinion that the principles of insurance would lead to the conclusion that, if the house be burned from a perfectly independ- ent cause, during an increase of risk incurred for good cause and in good faith, the insurers are not thereby discharged. It is, how- ever, certain that it is always prudent to obtain the consent of the insurers to any proposed alteration. If such consent be asked, and refused, we do not see that the insurers stand on any better footing, or the insured on any worse one ; and if the alterations are made and a loss occurs, we should say that the insurers would not, gen- erally at least, be discharged because of their refusal, unless they would have been discharged if the alteration had been made with- out their knowledge. For if they had a right to object or refuse, it could only be because the contract in effect prohibited this altera- tion ; and then their refusal was not wanted for their defence. And if they have no right to refuse, they can acquire no lights by the refusal. If the alteration be of a permanent character, and causes a mate- rial increase of the danger of fire, then it is a substantial breach of contract ; and we should hold that the insurers were discharged as soon as the alteration wag made, and indeed as soon as the making of it, or preparations for it, as scaffolding or carpenter's work, mate- rially increased the risk. And they are discharged equally whether the fire be caused by the alteration, or by the work done, or by some wholly independent matter. The insured may make reasonable repairs without especial leave, and the insurers are liable, although the fire take place while the repairs are going on ; and even if.it be caused by the repairs. It may be added, that our fire policies now in use frequently give the insured the right of keeping the property in repair. The failuro of the insured to repair a defect in the building, arising after the contract is made, does not prevent the insured from recovering un- less he was guilty of gross negligence. 584 THE PROPERTY RIGHTS OF SECTION III. THE INTEREST OF THE INSURED. Any legal interest is sufficient. And if it be equitable in the sense that a court of equity will recognize and protect it, that is sufficient ; but a merely moral or expectant interest is not enough. So, one who has made only an oral bargain with another to pur- chase the other's house, cannot insure it ; but if there be a valid contract in law, or if by writing or by part performance it is en- forceable in a court of equity, the purchaser may insure. So, if a debtor assign his property to pay his debts, he has an insurable interest in it until the debts are paid, or until the property be sold. A partner may have an insurable interest in a building pur- chased with partnership funds, although it stands upon land owned by the other partner. A mortgagor may insure the whole value of his property, even after the possession has passed to the mortgagee, if the equity of redemption be not wholly gone. So he may if his equity of. redemption is seized on execution, or even sold, so long as he may still redeem. And in case of loss he recovers the whole value of the building, if he be insured on it to that amount. A mortgagor and a mortgagee may both insure the same property, and neither need specify his interest, but simply call it his property. The mortgagee has an interest only equal to his debt, and founded upon it ; and if the debt be paid, the interest ceases, and the policy is discharged ; and he can recover no more than the amount of his debt. It has been held that if a mortgagor is bound by his contract' with the mortgagee to keep the premises insured for the benefit of the mortgagee, and does keep them insured, but in his own name, the mortgagee has an equitable interest in or lien upon the proceeds of the policj''. One who holds property only in right of his wife may insure the property, even if his wife be only a joint tenant. And a tenant for years, or from year to year, may insure his interest, but would recover only the value of his interest, and not the value of the whole property. We have said that, generally, any one having any legal inter- est in property may insure it as his own. But there is one impor- tant exception to or modification of this rule. By the charters of many of our mutual insurance companies the company has a. lien, to the amount of the premium note, on all property insured. It is obvious, therefore, that no such description can be given, or no such A CITIZEN OF THE UNITED STATES. 585 language used, as ■would induce the company to suppose they had a lien when they could not have one, or would in any way deceive them as to the validity or value of their lien. In all such cases, all incumbrances must be stated, and the title or interest of the insured fully stated in all those particulars in which it affects the lien. A trustee, agent, or consignee may insure the property in Ms hands against fire. Generally, the consignee is not bound to insure against fire, but may, at his discretion. He may insure, expressly, his own interest in them for advances, or the owner's interest. It has been held that a consignee may, by virtue of his implied interest and authority, insure, in his own name, goods ip bis posses- sion against fire, to their full value, and recover for the benefit of the owner. But if the interest be not expressed, the policy will be construed as not covering the interest of the owners, if, upon a fair construction of the words and facts, it seems to have been the intention of the parties only to secure the consignee's interest. And an insurance against fire upon merchandise in a warehouse, " for account of whom it may concern," protects only such inter- ests as were intended to be insured at the time of effeeting the insurance. It is now common for a commission-mereliant to cover in one policy, in his own name, all the goods of the various owners who have consigned goods to him. It has been held that the words « goods held on commission," in fire policies, have an effect equiv- alent to the words " for whom it may concern," in marine policies, and that they would cover all the goods held on commission which the insured intended to insure. A person having a lien on a building under a State law has an insurable interest in the building. A consignee of goods, sent to him, hut not received, may in- sure his own interest in them. So, any bailee (which means any person to whom property has been delivered for any purpose) who has a legal interest in the chattels which he holds, although this be temporary and qualified, may insure the goods against fire. Thus a common carrier by land, who has a lien on the goods, and is answer- able for them if lost by fire (unless it be caused by the act of God or the public enemy), may insure the goods to their full value against fire. The insurers must know whom they insure; for they may have a choice of persons, and it is important to them to know whether they are to depend on the care and honesty of this man or of that man. The insured must so describe the owner as not to deceive them on this point, and so he must the kind of ownership. 586 THE PROPERTY RIGHTS OF Thus, if he aver an entire interest in himself, he cannot support this by showing a joint interest with another. So, too, there must be actual authority to make the insurance. This may be express, or implied in some cases, as it seems to be implied with the consignee, or the carrier, and perhaps, generally, with any one who has an actual possession of, interest in, and lien on, the property. But a tenant in common does not derive from his cotenancy authority to insure for his cotenant; nor could a mas- ter of a ship, or a ship's-husband, merely as such, insure the owner's interest against fire, without authority to do so. SECTION IV DOUBLE INSURANCE. By this the party originally insured becomes again insured. If, by a double insurance, the insured could protect himself over and over again, he might recover many indemnities for one loss. This cannot be permitted ; not only because it is opposed to the first prin- ciples of insurance, but because it would tempt to fraud, and make it very easy. In this country, fire policies usually contain express and exact provisions on this subject. They vary somewhat ; but, generally, they require that any other insurance must be stated by the insured, and indorsed on the policy ; and it is a frequent condition that each office shall in that case pay only a ratable proportion of a loss ; and it is often added that, if such other insurance be not so stated and indorsed, the insured shall not recover on the policy. And it has been held that such a condition applies to a subsequent as well as to a prior insurance, or to an insurance of any part of the prop- erty covered by the other policy. Nor will a court of equity relieve, if sufficient notice and indorsement have not been made. But it has been held that a valid notice might be given to an agent of the company, who was authorized to receive applications and survey property proposed for insurance. In some instances, the charter of the company provides that any policy made by it shall be avoided by any double in- surance of which notice is not given, and to which the consent of the company is not obtained, and expressed by their indorsement in the policy. But this would not apply to a non-notice by an insured of an insurance effected by the seller on the house which the insured had bought, if this policy were not assigned to the buyer. A CITIZEN OF THE UNITED STATES. 587 SECTION V. WAKRANTY AND REPRESENTATION. A warranty is a part of the contract; it must be distinctly expressed, and written either in or on the policy, or on a paper attached to the policy, or, as has been held, on a separate paper dis- tinctly referred to and described as a part of the policy. Then it ojierates as a condition precedent, that is, as a condition of the policy, which, if it be not performed, the policy never takes effect ; therefore, if it be not performed, there is no valid contract ; nor can the non-pei-formance be helped by evidence that the thing warranted was less material than was supposed, or, indeed, not material at all. It may be a warranty of the present time, or, as it is called, affirmative ; or of the future, and then it is promissory. And it may be, although of the present and affirmative, a continuing warranty, rendering the policy liable to avoidance by a non-continuance of the thing which is warranted to exist. "Whether it is thus con- tinuing or not must evidently be determined by the nature of the thing warranted. A warranty that the roof of a house is slated, or that there are only so many iire-places or stoves, would, generally at least, be regarded as continuing ; but a warranty that the building was five hundred feet from any other building would not cause the avoidance of the policy if a neighbor should afterwards put up a house within one hundred feet, without any act or privity of the insured. We have seen that statements made on a separate paper may be so referred to as to make them a part of the policy. And it is usual to refer in this way to the written application of the insured, and to all the written statements, descriptions, and answers to ques- tions, which he makes for the purpose of obtaining insurance. But a fair and rational, and, in some cases, a liberal construction, will be given to such statements. An indorsement made upon the policy before it is executed and delivered would take effect as a part of it. It is quite certain that the word "warranty" need not be used, if the language is such as to import unequivocally the same meaning. A statement may be introduced into the policy itself, and be con- strued not as a warranty, but merely as a license or permission of the insurers that premises may be occupied in a certain way, or Eome other fact occur without prejudice to the insurance. A representation, in the law of insurance, differs from a war- ranty, in that it is not a part of the contract. If made after the si'min'T of the policy or the completion of the contract, it cannot, of 588 THE PROPERTY RIGHTS OF course, aflfect it. If made before the contract, and with a view to effecting insurance, it is no part of the contract; but if it be fraudu- lent, it makes the contract void. And if it be false, and known to be false by him who makes it, it is his fraud. To have this effect, however, it must be material ; and there is no better test or standard for this than the question, whether the contract would have been made, and in its present form or on its actual terms, if this state- ment had not been made and believed by the insurers. If the answer is, that the contract would not have been made if this statement had not been made, it is material ; otherwise, not. The general rule is, that the statements in the application on a separate sheet have the effect only of representations, and do not avoid the policy unless void in a material point, or unless the policy makes them specially a part of itself, and gives them the effect of war- ranties. A representation may be more certainly and precisely proved if in writing ; but it will have its whole force and effect if only oral. In some instances, by the terms of the policies, any misrepresen- tations or concealments avoid the policy. And it is held that the parties have a right to make such a bargain, and that it is binding upon them ; and the effect of it would seem to be to give to rep- resentations the force and influence of warranties. If a warranty is broken, however innocently, it avoids all poli- cies, whether material or not; but a misrepresentation does not avoid the policy, unless it is material and fraudulent. And this difference between a warranty and a representation is very im- portant. Concealment is the converse of misrepresentation. The insured is bound to state all that he knows himself, and all that it imports the insurer to know, for the purpose of estimating accurately the. risk he assumes. A suppression of the truth has the same effect as an expression of what is false. And the rule as to materiality and as to a substantial compliance is the same. Even the rumor of an attempt to set fire to a neighboring bnild- ino- should be communicated; because the insurer should be in- formed of any unusual fact, or any circumstance relating to the building materially enhancing the risk. Insurers must be understood as knowing all those matters of common information, that are as much within their reach as in that of the insured ; and these need not be especially stated. But any special circumstance, as a great number of fires in the neighbor- hood, and the probability or belief that incendiaries were at work, should certainly be communicated ; and silence on such a point — especially if the place of business of the insurers was at a consid- A CITIZEN OF TBE UNITED STATES. 589 erable distance from the premises — would operate as a fraud, and avoid the policy. And any questions asked must be answered, and all answers must be as full and precise as the question requires. If there were a provision in the policy that a certain fact, if existing, must be stated, silence in reference to it would avoid the policy, however immaterial the fact. For concealment in an answer to a specific question can seldom or never be justified by showing that it was not material. Thus, in general, nothing need be said about title ; but if it be inquired about, full and accurate answers must be made. Where the insurance company has, by the terms of the policy, a lien upon or interest in the premises insured to secure the premium note, here it is obvious that any concealment of incumbrance or defect of title would operate as a fraud, and defeat the policy. But in all such cases it is probable that specific questions are put respect- ing the estate and title of the' insured. It is often required that all buildings standing within a certain distance of the property insured shall be stated ; but this might not always be considered as applicable to personal and movable prop- erty. Still, an insurance of chattels, described as in a certain place or building, would be held to amount to a warranty that they should remain there ; or rather it would not cover them if removed into another place or building, unless, by some appropriate phraseology, the parties expressed their intention that the insured was to be pro- tected as to this property wherever it might be situated. It is not uncommon to insure goods that are in course of transit, against fire; but then it is usual to name the places from which and to which the goods are passing. SECTION VI. THE RISK INCURRED BY THE INSURERS. At the time of the insurance the property must be in existence, and not on fire, and not at that moment exposed to a dangerous fire in the immediate neighborhood ; because the insurance assumes that no unusual risk exists at that time. The risk taken is that of fire. And therefore the insurers are not chargeable if the property be destroyed or injured by the indi- rect efiect of excessive heat ; or by any efiect which stops short of ignition or combustion, when there is no fire. Where, however, an extraordinary fire occurs, the insurers are clearly liable for the efiects of it, as where furniture or pictures are injured by the heat, although they do not actually ignite. 590 THE PROPERTY RIGHTS OF They are liable for the injury from water used to extinguish the fire; and for injury to or loss of goods caused by their removal from immediate danger of fire ; but not if removed from a mere apprehension from a distant fire, even if it be reasonable ; and not if the loss or ijijury might have been avoided by even so much care as is usually ^ven in times of such excitement and confusion. In some instances the policies require that the insured should use all possible diligence to preserve their goods ; and such a clause would strengthen the claim for injury caused by an endeavor to save them by removal. So the insurers are liable for injury or loss sustained by the blowing up of buildings to arrest the progress of a fire. Lightning is not fire ; and if property be destroyed by lightning, the insurers are not liable, unless there was also ignition, or unless the policy expressly insures against lightning. Loss by an explosion of gunpowder is a loss by fire ; a loss by an explosion caused by steam is not a loss by fire. Whether, when the negligence of the insured or his servants is to be considered as the sole or direct cause of the fire or loss, the insurers can be held, has been somewhat considered. And as this is the most common and universal danger, and the very one which induces most persons to insure, there has been some disposition to Bay that no measure or kind of mere negligence can operate as a defence. And in effect this is almost the law. But if the loss be caused by negligence of the insured himself, of so extreme and gross a character that it is hardly possible to avoid the conclusion of fraud, the defence might be a good one, although there were no direct proof of fraud. That the fire was caused by the insanity of the insured should be no defence. SECTION VII. VALUATION. Valuation does not often enter into a fire policy, and especially not in a policy made. by any of those mutual companies, who now do a very large part of the insurance of this country. And seldom is a building valued when insured by a stock company. If a loss happens, whether it be total or partial, the insurers are bound to pay only so much of the sum insured as will indemnify the assured. But, as care is always taken — and sometimes required by law — not to insure upon any house its whole value, it seldom happens, and, if the proper previous precautions are taken, should never hap- pen, that any question of value arises in a (5ise of a total destruction of a building by fire. A CITIZEN OF THE UNITED STATES. 591 But mutual companies are usually for1)idden by their charter to insure more than a ceitain proportion of the value of a building; and this requires a valuation in the policy, which is conclusive, for some purposes, against both parties. Of course, the insurers can never be held to pay more than the sum insured. And if their char- ter or by-laws permit a company to insure only a certain proportion of the value, as three-fourths, — on the one hand, if the company insure more than that proportion, as $3,500 on property valued at 14,000, they are held to pay only $3,000, and the assured cannot show that the building was really worth more than $4,000 ; and, on the other hand, the valuation, if not fraudulent, is conclnsive against the insurers if the building is destroyed ; and therefore they cannot show, in defence, that the building was worth less. I know nothing to prevent the parties from making a valued policy, if they see fit to do so, although this has been questioned. It is not uncommon for companies who insure chattels — as plate, pictures, statuary, books, or the like — to agree on what shall be the value in case of loss. Sometimes the policy reserves to the insurers the right to have the valuation made anew by evidence, in case of loss. Then if a jury find a less valuation, the insurers pay the same proportion of the new value which they had insured of the former valuation. The value which the insurers on goods must pay is their value at the time of the loss. And it has been held that a fair sale at auction, of what is left in good order, with due precaution, will be taken to settle that value after the fire, provided the insurers have reasonable notice or knowledge that the auction is to take place. The valuation determines the amount which the insurers must pay only in case of total destruction. If the building is injured by fire, but not destroyed, the insurers may either repair it, or pay the cost of repairing it. SECTION vni. ALIENATION. Policies against fire are personal contracts between the insured and the insurers, and do not pass to any other party, without the express consent of the insurers. It is essential to the validity and efficacy of this contract that the insured have an interest in the property when he is insured, and also when the loss takes place ; for otherwise it is not his loss, and he can have no claim for indemnity. If, therefore, he alienates the W'hole of his interest in the property before the loss, he has no claim ; 592 THE PROPERTY RIGHTS OF and if he alienates a part, retaining a partial interest, he has only a partial and proportionate claim. After a loss has occurred, the right of the insured to indemnity is vested and fixed; and this right may be assigned for value, so as to give an equitable claim to the assignee, without the consent of the insurers. Policies against fire usually coritain a provision that an assignment of the property, or of the policy, shall avoid the policy. But this does not apply to an assignment of the claim after a loss. A dissolution of the partnership before loss, and a division of the goods, so that each partner owned distinct portions, was held to be in violation of a condition against " any transfer or change of title in the property insured." A conveyance by one insured, intended to secure a debt, would be treated in a court of equity as a mortgage, and therefore it would not terminate the interest of the insured. A contract to convey is not an alienation. Nor is a conditional sale, where the condition must precede the sale, and is not yet performed. Nor is a mort- gage, not even after breach, and perhaps entry for a breach, and not until foreclosure. Nor selling and immediately taking back. In some policies, however, alienation by mortgage is directly pro- hibited. If several estates are insured in one policy, and one or more are aliened (or conveyed away), the policy is void as to those only which are aliened. If many owners are insured in one policy, a transfer by one or more to strangers, without the act or concurrence of the other owners, will avoid the policy for only so much as is thus transferred. In practice, care should be taken to have aU such transfers regu- larly made and notified to the insurers, and their consent obtained, and duly indorsed or certified, and all the rules or usages of the insurers in this respect complied with. SECTION IX. ICOTICE AND PROOF, Where the policy requires a certificate of the loss, the produc- tion of it is a condition precedent to any claim for payment. And it must be such a certificate as is required ; but a substantial com- pliance with its requirements is suflScient. So, too, if the notice is to be given forthwith, there must be no unreasonable or unnecessary delay. And all the circumst&nces of the case are considered, in determining whether there was or was not due diligence. "Where a A CITIZEN OF TEE UNITED STATES. 593 certificate is required to be furnished " as soon as possible," it is still sufficient if it be furnished within a reasonable time. But where the fire took place in November, and the account of loss was not furnished till the March following, it was held not to be a com- pliance with the conditions. Generally, this is a question for the As premises insured against fire may be supposed always open to the inspection of the agents of the insurers, a general notice of the fire will be enough. SECTION X. ADJUSTMENT AND LOSS. Insurers against fire are not held to pay for loss of profits, gains of business, or other indirect and remote consequences of a loss by fire. "We do not know, however, why pi"ofits may not be expressly insured against fire where it is not forbidden by or inconsistent with the charter of the insurers. There is one wide difference between the principle of adjustment of a marine policy and of a fire policy. In the former, if a pi-opor- tion only of the value is insured, the insured is considered as bis own insurer for the residue, and only an equal proportion of the loss is paid. Thus, if, on a ship valued at $10,000, $5,000 be in- sured, and there is a loss of one-half, the insurers pay only one-half of the sum they insure, just as if some other insurer had insured the other $5,000. But in a fire policy, the insurers pay in all cases the whole amount which is lost by fire, provided only that it does not exceed the amount which they insui-e. Most of the fire policies used in this country give the insurers the right of rebuilding or repairing premises destroyed or injured by fire, instead of paying the amount of the loss. If, under this power, the insurers rebuild the house insured at a less cost than the amount they insure, this does not exhaust their liability; they are now insurers of the new building for the difference between its cost and the amount they have insured. And if the new building burns down or is injured while the policy continues, the insured may claim so much as, added to the cost already incurred, shall equal the sum for which he was insured. It may be important to add, that, under our common mutual policies, the insured will also be liable for assessments for losses after the destruction of his building by fire, during the whole teiTO of the policy. The jury, to whom the whole question of damages is given, are to inquire into the greater value of a proposed new building, or of 38 594 THE PROPERTY RIGHTS OF a repaired building, and assess only such damages as shall give the insured complete indemnity. Where insurers reserve a right to replace articles destroyed, if the insured refuse to permit them to examine and inventory the goods that they might judge what it was expedient for them to do, such conduct on the part of the insured would be strong evidence to the jury to prove an overstatement of loss. I have not thought it would be useful to give forms of va,rious policies. Applicants never make them, as they are always furnished by the insurance companies ; each one having its own form, and using no other. But the following forms, of immediate notice of loss, of a later and fuller statement under oath with a magistrate's certificate, and assignments of policies, may be found useful. They must be all adapted, in pi-actioe, to the peculiar circumstances of each case. (179.) TO THE FIRE INSURANCE COMPANY. Take notice, That on the day of inst. (or last) , a Are broke out in the building No. in Street, in the city of (or otherwise describe the location), whereon I am insured by your policy. No. the sum of dollars. I have not yet learned, and do not know, in what way the fire was caused; but, as soon as I am able, I will give you further information on the subject. (If the insured or Ins agent knows, or has reasonable cause for supposing, how the fire was caught, he should say so, and state what particulars' he can.) The house was wholly (or partially) destroyed by fire; and I shall claim a payment from you under your policy. Written and sent this day of in the year (Signature.) (Seal.) Witness to the signature and sending. (Signature of witness.) Some insurance companies, and, indeed, the express provisions of some policies, require that a sworn statement of the facts and cir- cumstances of the loss, and the particulars of the claim, be given to the insurance company, with the certificate of a magistrate. I do not know that this course might not be always prudent. The form in which it is done must vary in each case, and be adapted to the peculiarities of that case. But the following foi-m will generally be a safe guide : — A CITIZEN OF THE UNITED STATES. 596 (180.) TO THE INSURANCE COMPANY. Whereas, The said Insurance Company, by their policy numbered and dated on the day of in the year caused me to be insured in the sum of dollars against loss or damage by fire to the following-described building; that is to say {here describe or designate the building sufficiently to shoto clearly where and what it was, taking the description from the policy, but not copying it at length). Now, I, the said {name of the assured), having been solemnly sworn, do depose and say, — 1. That on the day of now last past, between the h GUI'S of and a fire broke out in said building, whereby the same was greatly damaged (or destroyed) , and the said fire was, accord- ing to my best knowledge and belief, caused by {here set forth the causes so far as they are known, or supposed on reasonable grounds) , and I aver that the said fire was not caused by me, or by my design and concurrence, or with any previous knowledge on my part, or in any manner attributable to me or to my agency, direct or indirect. 2. That I was interested in the said property in the following manner; that is to say (here say whether the insured owned the property himself, or was a tenant of it, or a landlord, or mortgagor, or mortgagee, or trustee, or how otherwise he was interested). 3. That there was no other insurance against fire of the said property (or, if there was any other, state what it was) . 4. That the occupants of the building at the time of the fire were, so far as is known to me, the following persons (set forth the names of the occupants, the parts of the building occupied by each one, and the purpose for which it was occupied) . 5. That the actual value of the building in dollars at the time of the fire was, according to my best belief and judgment, dollars. (If the property was personal, as goods, furniture, or the like, say, as may appear by the schedule annexed). 6. That the whole of said value was lost by the fire; and being more than the sum insured thereon, I now claim of said insurance company said sum of dollars. (Or if the building was injured, and not de- stroyed, then say that so much of the value — stating the amount — of said building was lost by the fxe, inasmuch as the building, if repaired, cannot be restored to as good a condition as before, for a less amount than that sum.) Witness my hand at this day of in the year (Signature.) (Certificate to be appended to the foregoing.) State of ) [-88. County or ) * I (name of the magistrate), a justice of the peace in and for said county (or what else may be his office), dwelling near to the property above men- 596 THE PROPERTY RIGHTS OF tioned, in the to-wn (or city) of have investigated the circum- stances attending the said fire, and arnpersonally acquainted with the said (name of insured), whose character is good; and I believe that the above statement to which the said (name of insured') has made oath in my pres- ence is true; that the loss cannot be imputed to fraud or misconduct on his part; and that he has suffered by the fire a loss of dollars. I am not in any way interested in the said property, or in the said policy, or any claim under the same. In witness of all which I have hereunto set my hand and my seal (of office, if he lias an official seal), a,t this day of in the year (Signature of magistrate.) (Seal.) (181.) ASSIGNMENT OF A POLICY TO BE INDORSED THEREON. I (name of the insured), insured by the within policy, in consideration of a dollar paid to me by (name of the assignee) , and for other good con- siderations, do hereby assign and transfer to the said (name of the assignee) this policy, together with all the right, title, interest, and claim which I now have or hereafter may have in, to, or under the same. Witness my hand, this day of in the year (Signature.) (Witness.) It is always best to write this assignment on the policy itself; but it may sometimes happen that this is not convenient or possi- ble, the insured who wishes to make the assignment not having the policy within his possession or easy reach. Then the assured may use the following form : — (182.) Whereas, The Insurance Company, by their policy, num- bered and dated on day of in the year caused me to be insured against loss or damage by fire on a certain build- ing, being (desipinaie the building by location or otherwise) , ia the sum of dollars. Now, I, the said (name of the insured), in considera- tion of one dollar paid to me by (name of the assignee), and for other good considerations, have transferred and assigned, and do by these presents transfer and assign, unto the said (name of the assignee) , the said policy of insurance, and all the right, title, interest, or claim which I now have or ever may have in, to, or under the same, and in and to any sum of money which now is or shall ever be payable thereon. Witness my hand, this . day of in the year (Signature.) (Witness.) A CITIZEN OF THE UNITED STATES. 597 If the policy be on goods, or vary in other respects, then the assignment must be made to conform to the facts. It is always best to get the assent of the insurance company to the transfer before it is made. And always the assignment, when made, should be exhibited without loss of time, to them or to their agent authorized to give their assent, and this assent to the assign- ment be obtained and written upon the policy, or, if that cannot conveniently be, on the assignment, and in the books of the insur- ance company. CHAPTER XXIV. LIFE INSUEANCB. SECTION I. THE PURPOSE AND METHOD OF tIFE INSURANCE. If A insures B a certain sum payable at B's death to B's repre- sentatives, we have only the insurer and insured, as in other cases of insurance. But if A insures B a sum payable to B or his repre- sentatives on the death of C, although C is often said to be insured, this is not quite accurate ; more properly, B is the insured party and C is the life-insured. Life insurance is usually effected in this country in a way quite similar to that of fire insurance by our mutual companies. That is, an application must be first made by the insured ; and to this appli- cation queries are annexed by the insurers, which inquire, with great minuteness and detail, into every thing which can affect the proba- bility of life. These must be answered fully; and if the insurer be other than the life-insured, there are usually questions for each of them. There are also, in some cases, questions which should be answered by the physician of the life-insured, and others to be answered by his fiiends or relatives ; or other means are provided to have the evidence of the physician and friepds. These questions are not precisely the same in the forms given out by any two companies ; and we do not speak of them in detail here. The rules as to the obligation of answering them, and as to the sufficiency of the answers, must be the same in life insurance that we have already stated in the chapter on fire insurance ; or, rather, must rest upon the same principles. And the same rules and pi-in- ciples of construction therein set forth would doubtless be applied 598 THE PROPERTY RIGHTS OF to the question whether a contract had been made, or at what time it went into effect. It may be said generally, that it is prudent to add to the answers to these questions, " according to my best knowledge and belief." Then the insurers would beheld, although the answer was erroneous, if it was made in good faith. SECTION n. THE PREMIUM. If the insurance be for one year only, or less, the premium is usually paid in money, or by a note, at once. If for more than a year, it is usually payable annually. But it is common to provide or agree that the annual payment may be made quarterly, with interest from the day when the whole is due. Notes are usually given ; but if not, the whole amount would be considered due. If A, whose premium of $100 is payable for 1856 on the first day of January, then pays $25, and is to pay the rest quarterly, but dies on the 1st of February, the $75 due, with interest from the 1st of January, would be deducted from the sum insured. If the policy provides that the risk shall "terminate in case the premium charged shall not be paid in advance on or before the day at noon on which the same shall become due and payable," and the day of payment falls on Sunday, the premium is not payable until Monday, although the assured dies on Sunday afternoon. Frovisiou is sometimes made that a part of the premium shall be paid in money, and a part in notes, which are not called in unless needed to pay losses. The greater the accommodation thus allowed, the more convenient it is obviously to the insured, but the less certain will he be of the ultimate payment of the policy, because, in the same degree, the fundibr the payment consists only of such notes, and not of payments actually made and invested. There is a great diversity among the life insurance companies in this respect. But even the strictest, or those which require that all the premiums shall be paid in money, usually provide also that an amount may rem.ain overdue, without prejudice, which does not exceed a oei'tain proportion — say one-half or one-third — of the money actually paid in on the policy. This is considered, under all ordinary circumstances, safe for the company, because every policy is worth as much as this to the company. Or, in other words, it would always be profitable for the company to obtain a discharge of its obligation on a policy, by repaying the insured so small a proportion of what has been received from him. A CITIZEN OF THE UNITED STATES. 599 Taking a note would certainly be a waiver of immediate pay- ment, if not itself a payment. The premiums, after the first, must be paid on the days on which they fall due. If no hour be mentioned, then it is believed that the insured would have the whole day, even to midnight. It is possible, however, that he might be restricted to the usual hours of business, and perhaps even to those in which the office of the insurers is open for business. Practically, the utmost care is requisite on the part of the assured to pay his premium as soon as it is due ; and it is a wise precaution to pay it a little before. This is the only proper and safe course. But we believe it to be not unusual for the insurers to accept the premium if offered them a few days after, and continue the policy as if it were paid in season, provided no change in the risk has occurred in the mean time ; but this should not be trusted to without an express agreement, if it can be avoided. Sometimes the rules of the company, and in some States the statutes, provide that, if a policy be defeated by a non-payment of the premium, the insured does not lose all that he has paid ; but a certain proportion of the value which the policy J,hen had shall be paid to him. The time of the death is sometimes very important. If the policy be for a definite period, it must be shown that the death occurs within it. If there were an insurance on a man's life for a year, and some short time before the expiration of the term he received a mortal wound, of which he died one day after the year, the insurer would not be liable. And the terms of the policy may possibly make it necessary to determine which of two persons lived longest; as if a sum were insured on the joint lives of two persons, to be paid to the representatives of the survivor. SECTION III. THE RESTRICTIONS AND EXCEPTIONS IN LIFE POLICIES. Our policies usually contain certain restrictions or limitations as to place, the life-insured (he whose life is insured for his own or another's benefit) not being permitted to go beyond certain limits, or to certain places. But there is nothing to prevent a bargain permitting the life-insured to pass beyond these bounds, either in consideration of new and further payments, or of the common pre- mium. So certain trades or occupations, as of persons engaged in making gunpowder, or of engineers or firemen about steam-engines, 600 THE PROPERTY RIGHTS OF are considered extra-hazardous, and as therefore prohibited, or re- quiring an extra premium. The exception, however, which has created most discussion is that which makes death by suicide an avoidance of the policy. The clause respecting duelling is plain enough ; and no one can die in a duel without his own fault. But it is otherwise with regard to self- inflicted death. This may be voluntary and wrongful, or the result of insanity and disease, for which the suffering party should not be held responsible. The general principles of the law of contracts, and of the law of insurance particularly, would lead to the conclusion that " death by his own hands," but without the concurrence of a responsible will or mind, would not discharge the insurers, without a positive provision to that effect. We should put such a death on the same footing with one resulting from a mere accident, brought about by the agency, but without the intent, of the life-insured. As if poison were sent or given to him by mistake for medicine, and he swallowed it under the same mistake. Much question has been made when a man may he believed to be dead, simply because nothing is known about him, or has been known for a long period. But there is not and cannot be any other presumption of law on the subject than that, after a certain period of absence and silence, there is a presumption of death ; and seven years has been mentioned in England and in this country as this period, and even sanctioned by legislation in New York. But all questions of this kind we regard as pure questions of fact. Which- ever party rests his case upon the death or the life of a certain person, at a certain time, must satisfy the jury upon this point by such evidence as may be admissible and sufficient. SECTION IV. THE INTEREST OF THE INSURED. Every one insured in any way must have an interest in thp subject-matter of the insurance. A person may effect insurance on his own life in the name of a creditor, for a sum beyond the amount of the debt, the balance to inure to his family ; and the policy will be valid for the whole amount insured. Any one may insure his own life ; but if the insured and the life-insured are not the same, that is, if the insured be insured on some other life than his own, interest must be shown. A father has an insurable interest in the life of his minor son. And the general rule is, that any substantial pecuniary interest is A CITIZEN OF TEE UNITED STATES. 601 sufficient, although not strictly legal nor definite. This has been held in the case of a sister dependent on a brother for support ; and the rule would be held to apply not only to all relations, but where there was no relationship, if there were a positive and real dependence ; that is, any one may insure a sum on the life of any other person on whom he or she really depends for support or for comfort. And, generally, it is said to be enough, if, according to the ordinary course of events, pecuniary loss or disadvantage will naturally and probably result from the death of the one whose life is insured. So an existing debt gives the creditor an insurable interest in the life of a debtor. But if the debt be not founded on a legal consideration, it does not sustain the policy. And if the debt be paid before the death of the debtor, the insurers are discharged. SECTION V. THE ASSIGNMENT OF A LIFE POLICY. Life policies are assignable at law, and are very frec^ueutly assigned in practice. And the assignee of a policy is entitled on the death of the party insured to i-eeover the full sum insured, with- out reference to the amount of the consideration paid by him for the assignment. A large proportion of the policies which are effected are made for the purpose of assignment ; that is, for tlie purpose of enabling the insured to give this additional security to his cred- itor. If there are rules of the company which relate to an assign- ment of it, or if the terms of the policy do so, they are binding on the parties. On the one hand, an assignment would operate as a dischai'ge of the insurers, provided a rule or expressed provision gave this effect to the assignment ; and, on the other, if the agree- ment were that the policy should continue in favor of the assignee, even after an act which discharged- it as to the insured him- self, — as, for example, his suicide, — the insurers would be bound j?y it- It is an important question, what constitutes an assignment. The general answer must be, any act distinctly importing an as- signment has that effect. And, therefore, a delivery and deposit of the policy for the purpose of assignment will operate as such, with- out a formal written assignment. So will any transaction which gives to a creditor of the insured a right to payment out of the insurance. It seems, however, that delivery is necessary. And where an assignment was indorsed on the policy, and notice given to the 602 THE PROPERTY RIGHTS OF insurer, but the policy remained in the possession of the insured, it was held that there -was no assignment. Where, however, the assignment is by a separate deed, which is duly executed and delivered, this is an assignment of the policy, without actual de- livery of the policy itself. SECTION VI. WARRANTY, REPRESENTATION, AN1> CONCEALMENT. The general principles ou this subject are the same which we have already stated in reference to fire insurance. la life policies, however, the questions which must be answered are so minute, and cover so much ground, that difficulty seldom, arises except in rela- tion to the answers. One advisable precaution is for the answerer to discriminate carefully between what he knows and what he believes. If he says simply "yes" or "no," or gives an equivalent answer, this is in most cases a strict warranty, and avoids the policy if there be any material mistake in the reply. But where the an- swerer adds the words, " to the best of my knowledge and belief," he warrants only the fact of his belief, or, in other words, nothing but his own entire honesty. The cases which turn upon the answers to the questions are very numerous ; but they necessarily rest upon the especial facts of each case, and hardly permit that general rules should be drawn from them. Some, however, may be stated. The first is, that perfect good feith should be observed. The want of it taints a policy at once ; and the presence of it goes far to protect one. Thus, where the life-insured was beginning to be insane, but was wholly unconscious of it, the policy was not vitiated by the concealment, although two doctors in attendance upon him knew how the case stood. Most of the policies of the present day provide that the policy is made on the faith that the statements in the application for in- surance are true, and if they shall be found in any respect untrue, the policies shall be avoided. Then the stipulations are considereTl as warranties, and if untrue, even in a point immaterial to the risk, avoid the policies. There is a warranty, or statement, usually making a part of nearly all life policies; it is, that the life-insured is in good health. But this does not mean perfect health, or freedom from all symp- toms or seeds of disease. It means reasonably good health; and loose as this definition or rule may be, it would be difficult to give any other. And if a jury, on the whole, are satisfied that the A CITIZEN OF THE UNITED STATES. 603 constitution of one warranted to be " in good health " is radically impaired, and the life made unusually precarious, there is a breach of the warranty, although no specific disease is shown which must have that effect. On the other hand, this warranty is not broken by the presence of a disease which does not usually tend to shorten life (in one English case dyspepsia was said to be such a disease), unless it were organic, or had increased to that extreme degree as to be of itself dangerous. Consumption is the disease which is most feared in this country, as well as in England. And the questions which relate to the symp- toms of it, as spitting of blood, cough, and the like, are exceedingly minute. But here also there must be a reasonable construction of the answers. Thus, if spitting of blood be positively denied, there may be no fixlsification in fact, though literally speaking the life- insured may have spit blood many times, as when a tooth was drawn, or from some accident. If' there be an action on the policy, and the insurers rest their defence on any falsification of this kind, the question usually put to the jury is : Was the party affected by any of these or similar symptoms, in such wise that they indicated a disorder tending to shorten life ? And any symptom of this kind, however slight, — as a drop or two of blood having ever flowed from inflamed or congested lungs, — should be stated. Statements materially untrue on these points avoid the jjolicy, although the insured, at the time of his application, did not be- lieve that he had any pulmonary disease, and the statement made by him was not intentionally false, but, according to his belief, true. The insurers almost always ask who is the physician of the life- insured, that they may make inquiries of him if they see fit. And his name must be stated fully and accurately. It is not enough to give the name of the usual attendant ; but every physician really consulted should be named, and every one consulted as a physician, although he is an irregular practitioner or quack. If the warranty be that the life-insured is a person of sober and temperate habits, it has been held, in an action on such a pohcy, that the jury are not to inquire whether his habits of drinking are such as might injure his health ; for if he has any " habits of drink- ing," this would discharge the insurers, because they have a perfect right to say that they will insure only those who are temperate. But it may be answered, that although the insurers have this right, and there may be good reasons why this should be the general prac- tice, yet unless they use the word "abstiiience," or something equiv- alent, they have no right to say that any one is not " temperate " who does not drink enough to affect his health ; for as, generally, all intemperance must affect health injuriously, if there be no such 604 THE PROPERTY RIGHTS OF injury, the presumption would be that there was no intemperance ; and there is clearly a broad distinction between temperance and total abstinence. An answer, "not subject to fits," is not necessarily falsified by the fact that the life-insured has had one or more iits. But if the question had been, " Have you ever had fits ? " then it is said that any fit of any kind, and however long before, must be stated. But if a man had a fit when a young child, and forgot to mention it, or considered it wholly unimportant, and it had nothing to do with his state of health, it would hardly be held a falsification which would avoid the policy. As there is always a general question as to any facts affect- ing health not particularly inquired of, a concealment of such a fact goes to a jury, who are to judge whether the fact was material, and whether the concealment were honest. As when a life-insured was a prisoner for debt, and so without the benefit of air and recreation, and this was not told ; and where a woman whose life was insured had become the mother of a child under disgraceful circumstances some years before, and this fact was concealed, — the plaintifis were non-suited, and lost the case. If the policy, and the papers annexed or connected, put no limits on the location of the life-insured, he may go where he will. But if, when applying for insurance, he intends going to a place of peculiar danger, and this intention is wholly withheld, it would be a fraudulent concealment. If facts be erroneously but honestly misrepresented, and the insurers, when making the policy, knew the truth, the error does not affect the policy. Nor does the non-statement of a fact which diminishes the risk. If upon a proposal for a life insurance, and an agreement thereon, a policy be drawn up by the insurers, and presented to the insured, and accepted by them, which differs from the terms of the agreement, and varies the rights of the parties concerned, equity will interfere and deal with the case on the footing of this agree- ment, and not of the policy. But not if it be shown by evidence and circumstances that it was intended by the insurers to vary the agreement, and propose a different policy to the insured, and that this was understood by the insured, and the policy so ac- cepted. A CITIZEN OF THE UNITED STATES. 605 SECTION VII. INSURANCE AGAINST ACCIDENT, BISEASE, AND DISHONESTY OF SERVANTS. Of late years, all of these forms of insurance have come into practice, but not so long or so extensively as to require that we should speak of them at length. In general, it must be true that the principles already stated, as those of insurance against fire or death, must apply to these other — and indeed to all other — forms of insurance, excepting so far as they may be qualified by the nature of the contract. From one interesting case which has occurred in England, it seems that, when an application is made for insurance or guaranty against the fraud or misconduct of an agent, questions are proposed as we should expect, which are calculated to call forth all the various facts illustrative of the character of the agent, and all which could assist in estimating the probability of his fidelity and discre- tion. But a declaration of the applicant as to the course or conduct he was to pursue was distinguished from a warranty. He may re- cover on the policy, although he changes his course, provided the declaration was honest when made, and the change of conduct was also in good faith. In this case the application was for insurance of the fidelity of the secretary of an institution. There was a question as to when, and how often, the accounts of the secretary would be balanced and closed ; and the applicant answered that these accounts would be examined by the financial committee once a fortnight. A loss ensued from the dishonesty of the secretary ; and it appeared to have been made possible by the neglect of the committee or the directors to examine his accounts in the manner stated in the policy. But the insurers were held, on the ground that there was no warranty. CHAPTER XXV. BANKKUPTCY. The Constitution of the United States authorizes Congress to establish " uniform laws on the subject of bankruptcies throughout the United States." In 1800, a bankrupt law was passed, limited to five years ; but it was repealed before it had been in operation three 606 THE PROPERTY RIGHTS OF years. In 1841, another bankrupt law was passed, and was repealed eighteen months afterwards. In March, 1867, another bankrupt law was passed, entitled " An act to establish 'a uniform system of bank- ruptcy throughout the United States." Several amendatory acts were passed, of which much the most important was that of 22 June, 1874. This act provides so carefully that fraud shall be prevented and justice done in all cases, and seems to be so generally useful and acceptable, that I think it will probably be permanent, and, without being repealed, will be amended from time to time as new exigencies arise, and as experience shows the need of new or different provi- sions. I now give an abstract of all the sections, excepting those of the greatest and most frequent practical importance, and these I give in full. Section 1. Makes the several District Courts of the United States Courts of Bankruptcy, with full jurisdiction over all cases which come before them, and arose within their districts. Sect. 2. The several Circuit Courts of the United States shall have a general superintendence and jurisdiction of all cases and questions arising under this act. Sect, 3. Concerns the appointment of registers in bankruptcy, the manner of the appointment, and who they may be. Sect. 4. Describes the powers and duties of registers, and their fees. Sect. 5. Provides for the proceedings before the registers, the removal of registers by the judge of the District Court, and the fill- ing of the vacancy. Sect. 6. That the register of the parties concerned may take the opinion of the judge of the District Court in cases or upon ques- tions where that is desired. Sect. 7. Provides for the attendance of parties and witnesses when and where summoned, and for the punishment of perjury. Sects. 8, 9, and 10. Relate to appeals from the District Court to the Circuit Court, and from the Circuit Court to the Supreme Court if the matter in dispute exceeds $2,000. And gives the Supreme Court jJower to provide rules, orders, and forms for practice under this act. Sect. 11. States how a person wishing to be made a bankrupt may proceed, and what he must do. This section I give in full. VOLUNTARY BANKKUPTCT. — COMMENCEMENT OF rEOCEEDINGS. Sect. 11. And be it further enacted. That if any person residing within the jurisdiction of the United States, owing debts provable under this act exceeding the amount of three hundred dollars, shall apply by petition ad- A CITIZEN' OF THE UNITED STATES. 607 dressed to the judge of the judicial district in which such debtor has resided or carried on business for the six months next immediately preceding the time of filing such petition, or for the longest period during such six months, setting forth his place of residence, his inability to pay all his debts in full, his willingness to surrender all his estate and effects for the benefit of his creditors, and his desire to obtain the benefit of this act, and shall annex to his petition a schedule, verified by oath before the court, or Jiefore a register in bankruptcy, or before one of the commissioners of the Circuit Court of the United States, containing a full and true statement of all his debts, and, as far as possible, to whom due, with the place of residence of each creditor, if known to the debtor, and, if not known, the fact to be so stated, and the sum to each creditor, also the nature of each debt or de- mand, whether founded on written security, obligation, contract, or other- wise, and also the true cause and consideration of such indebtedness in each case, and the place where such indebtedness accrued, and a statement of any existing mortgage, pledge, lien, judgment, or collateral or other security given for the payment of the same; and shall also annex to his petition an accurate inventory, verified in like manner, of all his estate, both real and personal, assignable under this act, describing the same, and stating where it is situated, and whether there are any, and, if so, what in- cumbrances thereon, the filing of such petition shall be an act of bank- ruptcy, and such petitioner shall be adjudged a bankrupt: Provided, That all citizens of the United States, petitioning to be declared bankrupt, shall, in filing such petition, and before any proceedings thereon, take and subscribe an oath of allegiance and fidelity to the United States, which oath shall be filed and recorded with the proceedings in bankruptcy. And the judge of the District Courts, or, if there be no opposing party, any register of said court, to be designated by the judge, shall forthwith, if he be satisfied that the debts due from the petitioner exceed three hundred dollars, issue a warrant, to be signed by such judge or register, directed to the marshal of said district, authorizing him forthwith, as messenger, to publish notices in such newspapers as the warrant specifies ; to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him, in addition, by the debtor, and to give such personal or other notice to any persons concerned as the warrant specifies; but whenever the creditors of the bankrupt are so numerous as to make any notice now required by law to them, by mail or otherwise, a great and disproportionate expense to the estate, the court may, in lieu thereof, in its discretion, order such notice to be given by publication in a newspaper or newspapers, to all such creditors whose claims, as reported, do not exceed the sums, respectively, of fifty dollars; which notice shaU state, — First, That a warrant in bankruptcy has been issued against the estate of the debtor. Second, That the payment of any debts and the delivery of any prop- erty belonging to such debtor to him or for his use, and the transfer of any property by him, are forbidden by law. Third, That a meeting of the creditors of the debtor, giving the names, residences, and amounts, so far as known, to prove their debts and choose 608 THE PROPERTY RIGHTS OF one or more assignees of his estate, -will be held at a court of bankruptcy, to be holden at a time and place designated in the warrant, not less than ten nor more than ninety days after the issuing of the same. Sect. 12. Provides for the meetings of creditors, called under the preceding section. Sects. 13 and 14. Provide for the election or appointment, the duties, authority, and conduct of the assignee ; determine what prop- erty shall be exempted, and what property must be transferred to the assignee. These sections I give in full. ASSIGNMENTS AND ASSIGNEES. Sect. 13. And he it further enacted. That the creditors shall, at the first meeting held after due notice from the messenger, in presence of a register designated by the court, choose one or more assignees of the estate of the debtor; the choice to be made of/ the greater part in value and in number of the creditors who have proved their debts. If no choice is made by the creditors at said meeting, the judge, or, if there be no opposing in- terest, the register, shall appoint one or more assignees. If an assignee, so chosen or appointed, fails within five days to express in wilting his accept- ance of the trust, the judge or register may fill the vacancy. All elections or appointments of assignees shall be subject to the approval of the judge; and when in his judgment it is for any cause needful or expedient, he may appoint additional assignees, or order a new election. The judge at any time may, and, upon the request in writing of any creditor who has proved his claim, shall require the assignee to give good and sufficient bond to the United States, with a condition for the faithful performance and dis- charge of his duties; the bond shall be approved by the judge or register by his indorsement thereon, shall be filed with the record of the case, and inure to the benefit of all creditors proving their claims, and may be prose- cuted in the name and for the benefit of any injured party. If the assignee fails to give the bond within such time as the judge orders, not exceeding ten days after notice to him of such order, the judge shall remove him, and appoint another in his place. Sect. 14. And he it furtlier enacted, That as soon as said assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bantrupt, with all his deeds, books, and papers relating thereto, and such assignment shall relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings : Provided, howeoer. That there shall be excepted from the operation of the provisions of this section the necessary household and kitchen furniture, and such other articles and necessaries of A CITIZEN OF THE UNITED STATES. 609 such ban^krupt as the said assignee shall designate and set apart, having reference in the amount to the family, condition, and circumstances of the •bankrupt, but altogether not to exceed in value, in any case, the sum of five hundred dollars; and also the wearing apparel of such bankrupt, and that of his wife and children, and the uniform, arms, and equipments of any person who is or has been a soldier in the miUtia or in the service of the United States, and such other property as now is, or hereafter shall be, exempted from attachment or seizure, or levy on execution by the laws of the United States, and such other property not included in the foregoing exceptions as is exempted from levy and sale upon execution or other pro- cess, or order of any court, by the laws of the State in which the bankrupt has his domicile at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such State exemp- tion laws in force in the year eighteen hundred and seventy-one. Pro- vided, That the foregoing exception shall operate as a limitation upon the conveyance of the property of the bankrupt to his assignees, and in no case shall the property hereby excepted pass to the assignees, or the title of the bankrupt thereto be impau-ed or affected by any of the provisions of this act; and the determination of the assignee in the matter shall, on ex- ception taken, be subject to the final decision of the said court ; And pro- vided, further, That no mortgage of any vessel or of any other goods or chattels, made as security for any debt or debts, in good faith and for present considerations, and otherwise valid, and duly recorded, pursuant to any statute of the United States, or of any State, shall be invalidated or affected hereby; and all the property conveyed by the bankrupt in fraud of his creditors; all rights in equity, clioses in action, patents, and patent rights and copyrights; all debts due him, or any person for his use, and all liens and securities therefor; and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person arising from contract or from the unlawful taking or detention or of injury to the property of the bankrupt; and all his rights of redeeming such property or estate, with the like right, title, power, and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bankrupt might or could have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appoint- ment of his assignee, be at once vested in such assignee; and he may sue for and recover the said estate, debts, and effects, and may prosecute and defend all suits at law or in equity, pending at the time, of the adjudica- tion of bankruptcy, in which such bankrupt is a party in his own name, in the same hianner and with the like effect as they might have been presented or defended by such bankrupt; and a copy, duly certified by the clerk of the court under the seal thereof, of the assignment made by the judTB or register, as the case may be, to him as assignee, shall be conclusive "evidence of his title as such assignee to take, hold, sue for, and recover the property of the bankrupt, as hereinbefore mentioned; but no property held by the bankrupt in trust shall pass by such assign- ment No person shaU be entitled to maintain an action against an assic^nee in bankruptcy for any thing done by him as such assignee, without previously giving him twenty days' notice of such action, speci- 610 THE PROPERTY RIGHTS OF lying the cause thereof, to the end that suet assignee may have an oppor- tunity of tendering amends, should he see fit to do so. No person shall be entitled, as against the assignee, to withhold from him possession of any books of account of the bankrupt, or claim any lien thereon ; and no suit in which the assignee is a party shall be abated by his death or removal from office, but the same may be prosecuted and defended by his successors, or by the suiTiving or remaining assignee, as the case may be. The assignee shall have authority, under the order and direction of the court, to redeem or discharge any mortgage or conditional contract, or pledge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the condition thereof, or to sell the same subject to such mortgage, lien, or other incumbrances. The debtor shall also, at the request of the assignee, and at the expense of the estate, make and execute any instruments, deeds, and writings which may be proper, to enable the assignee to possess himself fully of all the assets of the bankrupt. The assignee shall immediately give notice of his ap- pointment by publication, at least once a week for three successive weeks, in such newspapers as shall, for that purpose, be designated by the court, due regard being had to their general circulation in the district or in that portion of the district in which the bankrupt and his creditors shall reside, and shall, within six months, cause the assignment to him to be recorded in every registry of deeds or other office within the United States where a conveyance of any lands owned by the bankrupt ought by law to be re- corded; and the record of such assignment, or a duly certified copy thereof, shall be evidence thereof in all courts. The court may, in its discretion, on sufficient cause shown, and upon notice and hearing, direct the receiver or assignee to take possession of the property, and carry on the business of the debtor, or any part thereof, under the direction of the court, when, in its judgment, the interest of the estate as well as of the creditors will be promoted thereby, but not for a period exceeding nine months from the time the debtor shall have been declared a bankrupt. Provided, That such order shall not be made until the court shall be satis- fled that it is approved by a majority in value of the creditors. Sect. 15. Gives some further direction to the assignee, as to de- manding, receiving, and selling the property. Sect. 16. Gives directions in relation to suits by the assignee to recover debts or other effects assigned to him. Sect. 17. Gives direction as to the investment by the assignee of the estate of the bankrupt ; and gives him power to submit disputed demands against debtors to the estate, to arbitration, or to compound and settle them. Sect. 18. Provides for death, resignation, or removal of the assignee, and filling the vacancy ; and states the general duties of assignees. Sect. 19. Relates to the debts of the bankrupt, payable at the time of, bankruptcy ; and also his debts payable at a future time. This section I give in full. A CITIZEN OF THE UNITED STATES. 611 Sect. 19. And he it further enacted, That all debts due and payable from the bankrupt at the time of the adjudication of bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of contract, may be proved against the estate of the bankrupt All demands against the bank- rupt for or on account of any goods or chattels wrongfully taken, converted, or withheld by him, may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest. If the bank- rupt shall be bound as drawer, indorser, surety, bail, or guarantor upon any bill, bond, note, or any other specialty or contract, or for any debt of another person, and his liability shall not have become absolute until after the adjudication of bankruptcy, the creditor may prove the same after sueh liability shall have become fixed, and before the final dividend shall have been declared. In all cases of contingent debts and contingent liabilities contracted by the bankrupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contingency shall happeh before the order for the final dividend ; or he may at any time apply to the court to have the present value of the debt'or liability ascertained and liqui- dated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertained. Any person liable as bail, surety, guarantor, or otherwise for the bankrupt, who shall have paid the debt or any part thereof in discharge of the whole^ shall be entitled to prove such debt, or to stand in the place of the creditor if he shall have proved the same, although such payments shall have been made after the proceedings in bankruptcy were commenced. And any person so liable for the bankrupt, and who has not paid the whole of said debt, but is still liable for the same or any part thereof, may, if the cred- itor shall fail or omit to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the rules, and subject to such regulations and limitations as may be established by such rules. Where the bankrupt is liable to pay rent, or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof up to the time of the bankruptcy, as if the same grew due fronv day to day, and not at such fixed and stated periods. If any bankrupt shall be liable for unliquidated damages arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, con- verted or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed against the estate. Sect. 20. Relates to mutual debts and set-offs ; that the balance shall be struck. Sect. 21. Prohibits a creditor who proves his debt from bring- ing any action against the bankrupt, unless a discharge has been refused or withheld. 612 THE PROPERTY RIGHTS OF Sect. 32 Provides for proof of debts of the creditors of the bankrupts, whether individuals or corporations. It must be by oath or solemn affirmation, and other and further evidence if it be required. This proof may be made before a commissioner, and sent by him to the assignee. Debts or claims not duly and suffi- ciently proved are to be rejected. Sect. 23. Provides for proof of debts before assignee is chosen ; declares no creditor who has received any preference or advantage from the bankrupt shall receive any dividend unless he sun-enders the preference or advantage, of whatever kind it may be, to the assignee. Sect. 24. Provides for appeal from District Court to Circuit Court from a decision rejecting his claim. Sect. 25. Court may order perishable property, or property to which right is disputed, to be sold. Sect. 28. Relates to the attendance of bankrupts, and the exam- ination of them, and their diSties and rights. This section I give in full. Sect. 26. And he it further enacted, That the court may, on the appli- cation of the assignee in bankruptcy, or of any creditor, or without any application, at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination on oath, upon all matters relating to the disposal or condition of his property, to his trade and dealings with others, aiid his accounts concerning the same, to all debts due to or claimed from him, and to all other matters concerning his property and estate and the due settlement thereof according to law, which examination shall be in writing, and shall be signed by the bankrupt and be filed with the other proceedings ; and the court may, in like manner, require the attendance of any other person as a witness, and if such person shall .fail to attend, on being summoned thereto, the court may compel his attendance by war- rant directed to the marshal, commanding him to arrest such person, and bring him forthwith before the court, or before a register in bankruptcy, for examination as such witness. If the bankrupt is imprisoned, absent, or disabled from attendance, the court may order him to be produced by the jailer, or any officer in whoSe custody he may be, or may direct the examination to be had, taken, and certified, at such time and place and in such manner as the court may deem proper, and with hke effect as if such examination had been in court. The bankrupt shall at all times, until his discharge, be subject to_the order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do and per- form all acts required by the court touching the assigned property or estate, and to enable the assignee to demand, recover, and receive all the property and estate assigned, wherever situated ; and for neglect or refusal to obey any order of the court, such bankrupt may be committed and punished as for a contempt of court. If the bankrupt is without the district, and un- A CITIZEN OF THE UNITED STATES. 613 able to return and personally attend at any of the times, or do any of the acts which may be specified or required pursuant to this section, and if it appears that such absence was not caused by wilful default, and if, as soon as may be after the removal of such impediment, he offers to attend and submit to the order of the court in all respects, he shall be permitted so to do, with like effect as if he had not been in default. He shall also be at liberty, from time to time, upon oath, to amend and correct his schedule of creditors and property, so that the same shall confoi-m to the facts. For good cause shown, the wife o/any bankrupt may be required to attend before the court, to the end that she may be examined as a witness ; and if such wife do not attend at the time and placa specified in the order, the bankrupt shall not be entitled to a discharge unless he shall prove to the satisfaction of the court that he was unable to procure the attendance of his wife. No bankrupt shall be liable to arrest during the pendency of the proceedings in bankruptcy in any civil action, unless the same is founded on some debt or claim from which his discharge or bankruptcy would not release him. In all causes and trials arising or ordered under this act, the alleged bankrupt, and any party thereto, shall be a competent witness. Sect. 37. Relates to the distribution of the bankrupt's estate. This section I give in full. THE DISTBIBtrTION OF THE BANKRUPT'S ESTATE. Sect. 27. And he it further enacted, That all creditors whose debts are duly proved and allowed shall be entitled to share in the bankrupt's prop- erty and estate pro rata, without any priority or preference whatever, except that wages due from him to any operative, or clerk, or house- servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the adjudication of bankruptcy, shall be entitled to priority, and shall be first paid in full: Provided, That any debt proved by any person liable as bail, surety, guarantor, or otherwise, for the bankrupt, shall not be paid to the person so proving the same until satisfactory evidence shall be produced of the payment of such debt by such person so liable, and the share to which such debt would be entitled may be paid into court, or otherwise held for the benefit of the party enti- tled thereto, as the court may direct. At the expiration of three months from the date of the adjudication of bankruptcy in any case, or as much earlier as the court may direct, the court, upon the request of the assignee, shall call a general meeting of the creditors, of which due notice shall be given, and the assignee shall then report, and exhibit to the court and to the creditors just and true accounts of all his receipts and payments, veri- fied by his oath, and he shall produce and file vouchers for all payments for which vouchers shall be required by any rule of the court ; he shall also submit the schedule of the bankrupt's creditors and property as amended, duly verified by the bankrupt, and a statement of the whole estate of the bankrupt as then ascertained, of the property recovered and of the property outstanding, specifying the cause of its being outstanding, also what debts or claims are yet undetermined, and stating what sum «14 THE PROPERTY RIGHTS OF remains in his hands. At such meeting the majority in value of the cred- itors present shall determine -whether any and what part of the net pro- ceeds of the estate, after deducting and retaining a sum sufficient to provide for all undetermined claims, ■which, hy reason of the distant residence of the creditor, or for other sufficient reason, have not been proved, and for other expenses and contingencies, shall be divided among the creditors ; but unless at least one-half in value of the creditors shall attend such meeting, either in person or by attorney, it shall be the duty of the assignee so to determine. In case a dividend is ordered, the register shall, within ten days after such meeting, prepare a list of creditors entitled to dividend, and shall calculate and set opposite to the name of each creditor who has proved his claim the dividend to which he is entitled out of the net pro- ceeds of the estate set apart for dividend, and shall forward by mail to every creditor a statement of the dividend to which he is entitled, and such creditor shall be paid by the assignee in such manner as the court may direct. Sect. 28. Belates to subsequent meetings of the creditors, divi- dends, compensation of assignee, and order of dividend and payment from bankrupt's estate. This section I give in full. Sect. 28. And he it further enacted. That the hke proceedings shall be had at the expiration of the next three months, or earlier, if practicable, and a third meeting of creditors shall then be called by the court, and a final dividend then declared, unless any action at law or suit in equity be pending, or unless some other estate or effects of the debtor after- wards come to the hands of the assignee, in which ca'&e the assignee shall, as soon as may be, convert such estate or effects into money, and within two months after the same shall be so converted, the same shall be divided in manner aforesaid. Further dividends shall be made in hke manner as often as occasion requires; and after the third meeting of cred- itors, no further meeting shall be called, unless ordered by the court. If at any time there shall be in the hands of the assignee any outstanding debts or other property, due or belonging to the estate, which cannot be collected and received by the assignee without unreasonable or inconvenient delay or expense, the assignee may, under the direction of the court, sell and assign such debts or other property in such manner as the court shall order. No dividend already declared shall be disturbed by reason of debts being subsequently proved ; but the creditors proving such debts shall be entitled to a dividend equal to those already received by the other creditors before any further payment is made to the latter. Pre- paratory to the final dividend, the assignee shall submit his account to the court, and file the same, and give notice to the creditors of such filing, and shall also give notice that he will apply for a settlement of his account, and for a discharge from all hability as assignee, at a time to be specified in such notice; and at such time the court shall audit and pass the accounts of the assignee, and such assignee shall, if required by the court, be ex- amined as to the truth of such account, and, if found correct, he shall thereby be discharged from all liability as assignee to any creditor of the A CITIZEN OF THE UNITED STATES. 616 bankrupt. The court shall thereupon order a dividend of the estate and effects, or of such part thereof as it sees fit, among such of the creditors as have proved their claims, in proportion to the respective amount of their said debts. In addition to all expenses necessarily incurred by him in the execution of his trust, in any case, the assignee shall be entitled to an allowance for his services in such case, on all moneys received and paid out by him therein, for any sum not exceeding one thousand dollars, five per centum thereon; for any larger sum, not exceeding five thousand dollars, two and a half per centum on the excess over one thousand dollars ; and for any larger sum, one per centum on the excess over five thousand dol- lars; and if, at anytime, there shall not be in his hands a suflieient amount of money to defray the necessary expenses required for the further execu- tion of his trust, he shall not be obliged to proceed therein until the neces- sary funds are advanced or satisfactorily secured to him. If, by accident, mistake, or other cause, without fault of the assignee, either or both of the said second and third meetings should not be held within the times limited, the court may, upon motion of an interested party, order such meetings, ■with like effect as to the vahdity of the proceedings as if the meeting had been duly held. In the order for a dividend, under this section, the fol- lowing claims shall be entitled to priority or prefei-ence, and to be first paid in full in the following order : — First, The fees, costs, and expenses of suits, and the several proceed- ings in bankruptcy under this act, and for the custody of property, as herein provided. Second, All debts due to the United States, and all taxes and assess- ments under the laws thereof. Third, All debts due to the State in which the proceedings in bank- ruptcy are pending, and all taxes and assessments made under the laws of such State. Fourth, Wages due to any oper3,tive, clerk, or house-servant, to an amount not exdteeding fifty dollars, for labor performed within six months next preceding the first publication of the notice of proceedings in bank- ruptcy. Fifth, All debts due to any persons who, by the laws of the United States, are or may be entitled to a priority or preference, in like man- ner as if this act had not been passed : Always provided, That nothing contained in this act shall interfere with the assessment and collection of taxes by the authority of the United States or any State. Sects. 29, 30, 31, 32, 33, and 34. Eelate to the discharge of the bankrupt, and its effect. These sections I give in full. THE BANKEUPt's DISCHARGE AND ITS EFFECT. Sect. 29. And he it further enacted. That at any time after the expira- tion of six months from the adjudication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and 616 THE PROPERTY RIGHTS OF ■within one year from the adjudication of hankruptey, the bankrupt may apply to the court for a discharge from his debts, and the court shall there- upon order notice to be given by mail to all creditors who have proved their debts, and hy publication at least once a week in such newspapers as the com-t shall designate, due regard being had to the general circulation of the same in the district, or in that portion of the district in wh'ch the bankrupt and his creditors shall reside, to appear on a day appointed for that purpose, and show cause why a discharge should not be granted to the bankrupt. No discharge shall be granted, or, if granted, be- valid, if the bankrupt has wilfully sworn falsely in his affidavit annexed to his petition, schedule, or inventory, or upon any examination in the course of the pro- ceedings in bankruptcy, in relation to any material fact concerning his estate or his debts, or to any other material fact ; or if he has concealed any part of his estate or effects, or any books or writings relating thereto, or if he has been guilty of any fraud or negligence in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, excepting such prop- erty as he is permitted to retain under the provisions of this act, or if he has caused, permitted, or suffered any loss, waste, or destruction thereof; or if, within four months before the commencement of such pro- ceedings, he has procured his lands, goods, money, or chattels to be attached, sequestered, or seized on execution; or if, since the passage of this act, he has destroyed, mutilated, altered, or falsified any of his books, documents, papers, writings, or securities, or has made or been privy to the making of any false or fraudulent entry in any book of ac- count or other document, with intent to defraud his creditors; or has removed or caused to be removed any part of his property from the dis- trict, with intent to defraud his creditors; or if he has given any fraud- ulent preference contrary to the provisions of this act, or made any fraudulent payment^ gift, transfer, conveyance, or assignment of any part of his property, or has lost any part thereof in gaming, or "has admitted a false or fictitious debt against his estate ; or if, having knowledge that any person has proved such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowledge; or if, being a merchant or tradesman, he has not, subsequently to the passage of this act, kept proper books of account; or if he, or any person in his behalf, has procured the assent of any creditor to the discharge, or influenced the action of any creditor at any stage of the proceedings, by any pecuniary consideration or obligation; or if he has, in contemplation of becoming bankrupt, made any pledge, payment, transfer, assignment, or conveyance of any part of his property, directly or indirectly, absolutely or condition- ally, for the purpose of preferring any creditor or person having a claim, against him, or who is or may be under liability for. him, or for the pur- pose of preventing the property from coming into the hands of the assignee, or of being distributed under this act in satisfaction of his debts; or if he has been convicted of any misdemeanor under this act, or has been guilty of any fraud whatever contrary to the true intent of this act; and befoio any discharge is granted, the bankrupt shall take and subscribe an oath to the effect that he has not done, suffered, or been privy to any act, matteri A CITIZEN OF THE UNITED STATES. 617 or thing specified in this act as a ground for withholding such discharge, or as invalidating such discharge if granted. Sect. 30. And he it further enacted, That no person who shall have been discharged under this act, and shall afterwards become bankrupt, on his own application, shall be again entitled to a discharge whose estate is insuf- ficient to pay seventy per centum of the debts proved against it, unless the assent in writing of three-fourths in value of his creditors who have proved their claims is filed at or before the time of application for discharge ; but a bankrupt who shall prove to the satisfaction of the court that he has paid all the debts owing by him at the time of any previous bankruptcy, or who has been voluntarily released therefrom by his creditors, shall be entitled to a discharge in the same manner and with the same effect as if he had not previously been bankrupt. Sbct. 31. And it is further enacted. That any creditor opposing the dis- charge, of any bankruptcy ma.y^le a specification in writing of the grounds of his opposition, and the court may, in its discretion, order any question of fact so presented to he tried at a stated session of the District Court. Sect. 32. And he it further enacted, That if it shall appear to the court that the bankrupt has in all things conformed to his duty under this act, and that he is entitled, under the provisions thereof, to receive a discharge, the court shall grant him a discharge from all his debts, except as bereia- after provided, and shall give him a certificate thereof under the seal of the court, in substance as follows : — District Court of the United States. District of Whereas has been duly adjudged a bankrupt under the act of Congress establishing a uniform system of bankruptcy throughout the United States, and ap- pears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court that said be for ever discharged from all debts and claims which by said act are made provable against his estate, and which existed on the day of on which day the petition for adjudication was filed by (or against) him; excepting such debts, if any, as are by said act excepted from the operation of a discharge in bankruptcy. Given under my hand and the seal of the court at in the said district, this day of a.d. (Seal.) ' Judge. Sect. 33. And he it further enacted. That no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act; but the debt may be proved, and the dividend thereon shall be a pay- ment on account of said debt; and no discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or other- wise. And in cases of voluntary hankruptcy, no discharge shall be granted to a debtor whose assets shall not be equal to thirty per centum of the claims proved against his estate, upon which he shall be liable as principal debtor, without the assent of at least one-fourth of his creditors in num- ber, and one-third in value. 618 THE PROPERTY RIGHTS OF Sect. 34. And be it further enacted. That a discharge duly granted under this act shall, -with the exceptions aforesaid, release the bankrupt from all debts, claims, liabilities, and demands ■which were or might have been proved against his estate in bankruptcy, and may be pleaded, by a simple averment that on the day of its date such discharge was granted to him, setting the same forth in hcec verba, as a full and complete bar to all suits brought on any such debts, claims, liabilities, or demands, and the certificate shall be conclusive evidence in favor of such bankrupt of the fact and the regularity of such discharge: Always provided, That any creditor or creditors of said bankrupt, whose debt was proved or provable against the estate in bankruptcy, who shall see fit to contest the validity of said discharge on the ground that it was fraudulently obtained, may, at any time within [two years] after the date thereof, apply to the court which granted it to set aside and annul the same. Said application shall be in writing, shall specify which, in particular, of the several acts mentioned in section twenty-nine it is intended to give evidence of against the bank- rupt, setting forth the grounds of avoidance, and no evidence shall be admitted as to any other of the said acts; but said application shall be subject to amendment at the discretion of the court. The court shall cause reasonable notice of said application to be given to said bankrupt, and order him to appear and answer the same, within such time as to the court shall seem fit and proper. If, upon the hearing of said parties, the court shall find that the fraudulent acts, or any of them, set forth as afore- said by said creditor or creditors against the bankrupt, are proved, and that said creditor or creditors had no knowledge of the same until after the granting of said discharge, judgment shall be given in favor of said creditor or creditors, and the discharge of said bankrupt shall be set aside and an- nulled. , Sect. 35. Relates to fraudulent conveyances or transfers by the bankrupt, declares them to be void, and defines what are such conveyances or transfers. This section I give in full. PBEFEEENCES AND FEAUDTJLENT CONVEYANCES DECLARED VOID. Sect. 35. And be it- further enacted. That if any person being insolvent, or in contemplation of insolvency, within two months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, A CITIZEN OF THE UNITED STATES. 619 01 so to be benefited ; and if any person being insolvent, or in contemplation oi insolvency or bankruptcy, ■within three months before 'the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be act- ing in contemplation of insolvency, and that such payment, sale, assign- ment, transfer, or other conveyance, is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade any of the provisions of this act, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. Any contract, covenant, or security made or given by a bankrupt or other person with, or in trust for, any creditor, for securing the payment of any money as a consideration for or with intent to induce the creditor to for- bear opposing the application for discharge of the bankrupt, shall be void; and if any creditor shall obtain any sum of money or other goods, chattels, or security from any person as an inducement for forbearing to oppose, or consenting to such application for discharge, every creditor so offending shall forfeit all right to any share or dividend in the estate of the bank- rupt, and shall also forfeit double the value or amount of such money, goods, chattels, or security so obtained, to be recovered by the assignee for the benefit of the estate. Nothing in this section thirty-five shall be construed to invalidate any loan of actual value, or the security therefor, made in good faith, upon a security taken in good faith on the occasion of the making of such loan. Sects. 36 and 37. Eelate to the bankruptcy of partnerships or corporations, and apply to them the provisions of this act. Sect. 38. Provides that the filing of the petition for bank- ruptcy shall be taken as the beginning of the proceedings, and also for the taking of testimony by depositions. Sect. 39. Relates to what is called involuntary bankruptcy, or bankruptcy on the petition of a creditor. This section has been materially changed by statute of 1874., I give it in full, as it now stands. INVOLUNTAEY BANKEUPTCT. Sect. 39. And he it further enacted, That any person residing and owing debts as aforesaid, who, after the passage of this act, shall depart from the State, district, or Territory, of which he is an inhabitant, with intent to defraud his creditors, or, being absent, shall, with such intent, remain ab- sent; or shall conceal himself to avoid the service of legal process in any action for the recovery of a debt or demand provable under this act; or shall conceal and remove any of his property to avoid its being attached, taken, 620 THE PROPERTY RIGHTS OF or sequestered on legal process; or shall make any assignment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, either •within the United States or elsewhere, with intent to delay, defraud, or hinder his creditors; or who has been arrested and held in custody under or by virtue of mesne process of execution, issued out of any court of any State, district, or Territory, within which such debtor resides or h?.s prop- erty, founded upon a demand in its nature provable against a bankrupt's estate under this act, and for a sum exceeding one hundred dollars, and such process is remaining in force and not discharged by payment, or in any other manner provided by the law of such State, district, or Territory applicable thereto, for a period of twenty days; or has been actually im- prisoned for more than twenty days in a civil action, founded on contract, for the sum of one hundred dollars or upwards; or who, being bankrupt or insolvent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale, conveyance, or transfer of money or other prop- erty, estate, rights, or credits, or give any warrant to confess judgment, or procure or suffer his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or persons who are or may be liable for him as indorsers, bail, sureties, or otherwise, or with the intent, by such disposition of his property, to defeat or delay the operation of this act; or who, being a bank, banker, broker, merchant, trader, manufacturer, or miner, has fraudulently stopped payment ; or who, being a bank, banker, broker, merchant, trader, manufacturer, or miner, has stopped or suspended and not re- sumed payment, within a period of forty days, of his commercial paper (made or passed in the course of his business as such) ; or who, being a bank or banker, shall fail for forty days to pay any depositor upon de- mand of payment lawfully made, — shall be deemed to have committed an act of bankruptcy, and, subject to the conditions hereinafter prescribed, shall be adjudged a bankrupt on the petition of one or more of his credit- ors, who shall constitute one-fourth thereof, at least, in number, and the aggregate of whose debts provable under this act amounts to at least one- third of the debts so provable: Provided, That such petition is brought ■within six months after such act of bankruptcy shall have been committed. And the provisions of this section shall apply to all cases of compulsory or involuntary bankruptcy comnienced since the first day of December, eighteen, hundred and seventy-three, as well as to those commenced here- after. And in all cases commenced since the first day of December, eighteen hundred and seventy-three, and prior to the passage of this act, as well as those commenced hereafter, the court shall, if such allegation as to the number or amount of petitioning creditors be denied by the debtor, by a statement in writing to that effect, require him to file in court forth- with a full list of his creditors, with their places of residence and the sums due them respectively, and shall ascertain, upon reasonable notice to the creditors, whether one-fourth in number and one-third in amount thereof, as aforesaid, have petitioned that the debtor be adjudged a bankrupt. But if such debtor shall, on the filing of the petition, admit in writing that the requis;ite number and amount of creditors have petitioned, the court, if satisfied that the admission was made in good faith, shall so adjudge, which A CITIZEN OF TEE UNITED STATES. 621 judgment shall be final, and the matter proceed -without further steps on that subject. And if it shall appear that such number and amount have not so petitioned, the court shall grant reasonable time, not exceeding, in cases heretofore commenced, twenty days, and, in cases hereafter commenced, ten days, within which other creditors may join in such petition. And if, at the expiration of such time so limited, the number and amount shall comply with the requirements of this section, the matter of bankruptcy may proceed ; but if, at the expiration of such limited time, such number and amount shall not answer the requirements of this section, the pro- ceedings shall be dismissed, and, in cases hereafter commenced, with costs. And if such person shall be adjudged a bankrupt, the assignee may recover back the money or property so paid, conveyed, sold, assigned, or trans- ferred contrary to this act : Prodded, That the person receiving such pay- ment or conveyance had reasonable cause to believe that the debtor was insolvent, and knew that a fraud on this act was intended ; and such person, if a creditor, shall not, in cases of actual fraud on his part, be allowed to prove for more than a moiety of his debt ; and this limitation on the proof of debts shall apply to cases of voluntary as well as involuntary bankruptcy. And the petition of creditors under this section may be sufiBciently verified by the oaths of the first five signers thereof, if so many there be. And if any of said fli-st five signers shall not reside in the district in which such petition is to be filed, the same may be signed and verified by the oath or oaths of the attorney or attorneys, agent or agents, of such signers. And in computing the number of creditors, as aforesaid, who shall join in such petition, creditors whose respective debts do not exceed two hundred and fifty dollars shall not be reckoned. But if there be no creditors whose debts exceed said sum of two hundred and fifty dollars, or if the requisite number of creditors holding debts exceeding two hundred and fifty dollars faU to sign the petition, the creditors having debts of a less amount shall be reckoned for the purposes aforesaid. Sects. 40, 41, and 42. Regulate the proceedings under sucli a petition. Sect. 43. Relates to the superseding of the proceedings in bank- ruptcy, by placing the property in the hands of trustees, if three- fourths in value of the creditors desire it. This section I give in full. 01" SUPERSEDING THE BAIfKRUPT PEOCEEDINGS BY ArtRANGEMEXT. Sect. 43. And be it further enacted, That if at the first meeting of creditors, or at any meeting of creditors to be specially called for that pur- pose, and of which previous notice shall have been given for such length of time and in such manner as the court may direct, three-fourths in value of the creditors whose claims have been proved shall determine and resolve that it is for the interest of the general body of the creditors that the estate of the bankrupt should be wound up and settled, and distribution made among the creditors by trustees, under the inspection and direction 622 THE PROPERTY RIGHTS OF of a comnaittee of the creditors, it shall be lawful for the creditors to cer- tify and report such resolution to the court, and to nominate one or more trustees to take and hold and distribute the estate, under the direction of such committee. If it shall appear to the court, after hearing the bank- rupt and such creditors as may desire to be heard, that the resolution was duly passed and that the interests of the creditors will be promoted thereby, it shall confirm the same; and upon the execution and filing, by or on be- half of three-fourths in value of all the creditors whose claims have been proved, of a consent that the estate of the bankrupt be wound up and set- tled by said trustees, according to the terms of such resolution, the bank- rupt, or his assignee in bankruptcy, if appointed, as the case may be, shall, under the direction of the court, and under oath, convey, transfer, and deliver all the property and estate of the bankrupt to the said trustee or trustees, who shall, upon such conveyance and ti-ansfer, have and hold the same in the same manner, and with the same powers and rights, in all respects, as the bankrupt would have had or held the same jf no pro- ceedings in bankruptcy had been taken ; or as the assignee in bankruptcy would have done had such resolution not been passed; and such consent and the proceedings thereunder shall be as binding in all respects on any creditor whose debt is provable, who has not signed the same, as if he had signed it, and on any creditor whose debt, if provable, is not proved, as if he had proved it; and the court, by order, shall direct all acts and things needful to be done to carry into effect such resolution of the credit- ors ; and the said trustees shall proceed to wind up and settle the estate under the direction and inspection of such committee of the creditors, for the equal benefit of all such creditors, and the winding up and settlement of any estate under the provisions of this section shall be deemed to be proceedings in bankruptcy under this act; and the said trustees shall have all the rights and powers of assignees in bankruptcy. The court, on the application of such trustees, shall have power to summon and examine, on oath or otherwise, the banknipt, and any creditor, and any person indebted to the estate, or known or suspected of having any of the estate in his pos- session, or any other person whose examination may be material or neces- sary to aid the trustees in the execution of their trust, and to compel the attendance of such persons and the production of books and papers in the same manner as in other proceedings in bankruptcy under this act; and the bankrupt shallJiave the like right to apply for and obtain a discharge after the passage of such resolution and the appointftient of such trustees as if such resolution had not been passed, and as if all the proceedings had continued in the manner provided in the preceding sections of this act. If the resolution shall not be duly reported, or the consent of the creditors shall not be duly filed, or if, upon its filing, the court shall not think fit to approve thereof, the bankruptcy shall proceed as though no resolution had been passed, and the court may make all necessary orders for re- suming the proceedings. And the period of time which shall have elapsed between the date of the resolution and the date of the order for resuming the proceedings shall not be reckoned in calculating periods of time pre- scribed by this act. A CITIZEN OF THE UNITED STATES. 623 COMPOSITION WITH CBEDITOES. That in all cases of bankruptcy now pending, or to be hereafter pend- ing, by or against any person, -whether an adjudication in bankruptcy shall have been had or not, the creditors of such alleged bankrupt may, at a meeting called under the direction of the court, and upon not less than ten days' notice to each known creditor of the time, place, and purpose of such meeting, such notice to be personal or otherwise, as the court may direct, resolve that a composition proposed by the debtor shall be accepted in satisfaction of the debts due to them from the debtor. And such resolution shall, to be operative, have been passed by a majority in number and three-fourths in value of the creditors of the debtor, assembled at such meeting either in person or by proxy, and shall be confirmed by the signatures thereto of the debtor and two-thirds in number and one-half in value of all the creditors of the debtor. And in calculating a majority for the purposes of a composition under this section, creditors whose debts amount to sums not exceeding fifty dollars shall be reckoned iu the major- ity in value, but not in the majority in number; and the value of the debts of secured creditors above the amount of such security, to be determined by the court, shall, as nearly as circumstances admit, be estimated in the same way. And creditors whose debts are fully secured shall not be en- titled to vote upon or to sign such resolution without first relinquishing such security for the benefit of the estate. The debtor, unless prevented by sickness or other cause satisfactory to such meeting, shall be present at the same, and shall answer any in- quiries made of him; and he, or, if he is so prevented from being at such meeting, some one in his behalf, shall produce to the meeting a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts respectively are due. Such resolution, together with the statement of the debtor as to his assets and debts, shall be presented to the court; and the. court shall, upon notice to all the creditors of the debtor of not less than five days, and upon hearing, inquire whether such resolution has been passed in the manner directed by this section; and if satisfied that it has been so passed, it shall, subject to the provisions hereinafter contained, and upon being satisfied that the same is for the best interest of all concerned, cause such resolution to be recorded, and statement of assets and debts to be filed; and until such record and filing shall have taken place, such resolution shall be of no val- idity. And any creditor of the debtor may inspect such record and state- ment at all reasonable times. The creditors may, by resolution passed in the manner and under the circumstances aforesaid, add to or vary the provisions of any composition previously accepted by them, without prejudice to any persons taking inter- ests under such provisions, who do not assent to such addition or variation. And any such additional resolution shall be presented to the court in the same manner, and proceeded with in the same way, and with the same con- sequences, as the resolution by which the composition was accepted in the first instance. The provisions of a composition accepted by such resolu- 624 'ins PROPERTY RIGHTS OF tion in pursuance of this section, shall be binding on all the creditors whose names and addresses, and the amounts of the debts due to whom, are shown in the statement of the debtor produced at the meeting at which the reso- lution shall have been passed, but shall not affect or prejudice the rights of any other creditors. Where a debt arises on a bill of exchange or promissory note, if the debtor shall be ignorant of the holder of any such bill of exchange or promissory note, he shall be required to state the amount of such bill or note, the date on which it falls due, the name of the acceptor and of the person to whom it is payable, and any other particulars within his knowl- edjje respecting the kame ; and the insertion of such particulars shall be deemed a sufficient description by the debtor in respect to such debt. Any mistake made inadvertently by a debtor in the statement of his debts may be corrected upon reasonable notice, and with the consent of a general meeting of his creditors. Every such composition shall, subject to priorities declared in said act, provide for a pro rata payment or satisfaction, in money, to the creditors of such debtor, in proportion to the amount of their unsecured debts, or their debts in respect to which any such security shall have been duly sur- rendered and given up. The provisions of any composition made in pursuance of this section may be enforced by the coui-t, on motion made iu a summary manner by any person interested, and on reasonable notice; and any disobedience of the order of the court made on such motion shall be deemed to be a con- tempt of court. Rules and regulations of court may be made in relation to proceedings of composition herein provided for, in the same manner and to the same extent as now provided by law in relation to proceedings in bankruptcy. If it shall at any time appear to the court, on notice, satisfactory. evi- dence, and hearing, that a composition under this section cannot, iu conse- quence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may refuse to accept and confirm such composition, or may set the same aside; and, in either case, the debtor shall be proceeded with as a bankrupt, in conformity with the provisions of law, and proceedings may be had accordingly; and the time during which such composition shall have been in force shall not, in such case, be computed in calculating periods of time ■prescribed by said act. Sect. 44. Provides that debtors, who, after the commeaeement of proceedings in bankruptcy (which meanss the filing of the petition), fraudulently conceal any property, or hinder the assignee from get- ting hold of it, or spend any part of it in gaming, or, within three months next before the petition, dispose of any property otherwise than by honest transactions in his trade, which property was bought on credit and is unpaid for, shall be punished by imprisonment not exceeding three yeara. A CITIZEN OF THE UNITED STATES. 625 Sect. 45. Provides that defaulting officers shall he punished hy a fine not less than three hundred nor move than five hundred dol- lars, and imprisonment not more than three years. Sect. 46. Provides that forgery or counterfeiting of any court seal, any court paper, or the tendering for use of any document so forged or counterfeited, shall he punished by a fine not less than five hundred nor more than five thousand dollars, and imprisonment not exceeding five years. Sect. 47. Eelates to fees and costs of proceedings ; and the act of 22 June, 1874, provided that the fees, commissions, charges, &c., shall be reduced to one-half of those heretofore allowed, until the Supreme Court of the United States shall make new orders and regulations about them. Sect. 48. Gives the meaning and definition of sundry words used in the act. Sect. 49. Gives jurisdiction in cases of hankruptcy to the Supreme Court of the District of Columbia and of the several Territories, when the bankrupt resides therein. Sect. 50. Declares that the act goes into force when approved. The various forms rec[uired are not given here, because they have been issued on the authority of the Supreme Court of the United States, and are uniform throughout the States, and are supplied by the registers of banki-uptcy to every applicant ; and to one of tliem every person proposing to become a bankrupt, and every person desiring to bring another person into bankruptcy, must apply. CHAPTER XXVL LIMITATION'S. SECTION I. THE STATUTE OF LIMITATIONS. All of our States have what is called a statute of limitations. It is not exactly the same everywhere; but generally it enacts that all actions of account, and all which are brought for indebted- ness or damages, and all actions of debt grounded upon any lending, or contract without seal, and all actions for arrearages of rent, shall 4J 626 THE PROPERTY RIGHTS OF be coramencecl and sued within six years next after the cause of such actions or suit arises, and not after. In ievf words, all claims whicli do not rest on a seal or a judgment must be sued within six years from the time when they arise. If they rest on a seal or a judg- ment, they can usually be sued at any time within twenty years. In some States, a statute provides, in substance, that if a debt or promise be once barred by the statute of limitations, no acknowl- edgment of the debt or new promise shall renew the debt and take away the effect of the statute, unless tlie new promise is in writing, and is signed by the party who makes the promise. But this statute expressly permits a part-payment either of principal or inter- est of the old debt to have the same effect as a new promise. And this statute also provides that if there be joint contractors or debt- ors, and a plaintiflfis barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaintiff may have judgment against this one, but not against the other. Such statutes hare been passed in Kaine, Massachusetts, Ver- mont, New York, Indiana, Michigan, Arkansas, and California. SECTION n. CONSTRUCTION OP THE STATUTK. For the law of limitation there is a twofold foundation: in the first place, the actual probability that a debt which has not been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But, besides this reason, there is the inex- pediency and injustice of pei-mitting a stale and neglected claim or debt, even if it has not been paid, to be set up and enforced after a long silence and acquiescence. Before inquiring into the rules of law which now apply to the case of an acknowledgment or new promise, it should be re- marked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in full force. This is the presumption of payment after twenty years, which is applicable to all debts : not only the simple contracts to which the statutes of limitation refer, that is, contracts which are merely oral, or which if written have no seal, but to specialties, or contracts or debts under seal or by judgment of court. Of these it will not be neces- sary to speak here, excepting to remark that in a few of our States the statute of limitation excepts a promissory note which is sio-ned in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator ; such a note in A CITIZEN OF THE UNITED STATES. 627 those States, as in Maine and Massachusetts, may be sued any time within twenty years after it is due. Bank-bills and other evidences of debt issued by banks, are everywhere excepted from the operation of the statute of limitations. SECTION III. THE NEW PROMISE. In those States which do not require that the new promise should be in writing, any new promise, although merely oral, takes the case out of the statute. But many questions have arisen as to what this new promise must be. A mere acknowledgment, which does not contain, by any reasonable implication or construction, a new promise, is not sufficient, and still less so if it expressly excludes a new promise. In the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the statute of limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff", " I know we are owing you ; " "I am getting old, and I wish to have the business settled : " it was held that these expressions were insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defendant, on being asked to pay the note, said, " he guessed the note was outlawed ; but that would make no difierence, he was will- ing to pay his .honest debts always." As he did not state in direct terms that he was willing to pay the note, this was held not suffi- cient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment. The new promise need not define the amount of the debt. That can be done by other evidence, if only the existence of the debt and the purpose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it ; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts generally, does not thereby make a new promise as to any one of them. If the new promise is conditional, the party relying npon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay " when I am able," the promisee must prove not only the promise, but that the promisor is able to pay the debt. As the acknowledgment should be voluntary, it follows that one made under process of law, as by a bankrupt, or by answers to inter- rogatories which could not be avoided, should never have the effect of a now prpmise. b28 THE PKOPERTY RIGHTS OF SECTION IV. PART-PAYMENT. A part-payment of a debt is such a recognition of it as implies a new promise ; even if it was made in goods or chattels, if they were offered as payment and agreed to be received as payment, or by negotiable promissory note or bill. Thus, in a case where one was sued for money due for a quantity of hay, and pleaded that it had been due more than six years, which was a good defence, the plaintiff proved in reply that defendant had given him within six years a gallon of gin as part-payment for his debt ; and it was lield that this took the case out of the statute of limitations, and the plaintiff recovered. But a payment has this effect only when the payment is made as of a part of a debt. If it is made in set- tlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character as a part-payment, would not be construed as carrying with it an acknowledgment that more was due and would be paid. If a debtor owes several debts, and pays a sum of money, he has the right of appropriating that money to one debt or another as he pleases. If he pays it withont indicating his own appropriation, the general rule is, that the creditor who receives the money may ap- propriate it as he will. There is, however, this exception : if there be two or more debts, some of which are barred by the statute, and others are not barred by it, the creditor cannot appropriate the pay- ment to a debt that is barred, for the pui-pose of taking it out of the statute by such part-payment. (See Section 2 of Chapter XVI.) SECTION V. SOME STATUTORY EXCEPTIONS. The original English statute of limitation, which those in this country are taken from, also provides that if a creditor, at the time ■wlien the cause of action accrues, is a minor, or a married woman, or not of sound mind, or imprisoned, or beyond the seas, the six years do not begin to run ; and he may bring his action at any time within six years after such disability ceases to exist. And, also, if any person against whom there shall be a cause of action, shall, when such cause accrues, be beyond the seas (which means out of the country, and here, out of the State), the action may be brought at any time within six years afler his return. Sim- ilar exceptions and disabilities are usually contained in our own statutes. A CITIZEN OF THE UNITED STATES. 629 The effect of these is, that the disability must exist when the debt accrued ; and then, so long as the disability continues to exist, the statute does not take effect. But it is a general rule that, if the six years begin to run, they go on without any interruption or sus- pension from any subsequent disability. Thus, if a creditor be of sound mind, or a debtor be at home, when the debt accrues, and one month afterwards the creditor becomes insane, or the debtor leaves the country, nevertheless the six years go on, and after the end of that time no action can be commenced for the debt. Or if the disability exists when the debt accrues, and some months after- wards ceases, so that the six years begin to run when it ceases, and aftei-wards the disability comes again, it does not interrupt the six years. The effect of this is, that if, when a debt is due, the debtor is out of the State, the six years do not begin to run. If afterwards he retui'ns to the State, they then begin to run ; and, having begun, they continue to run, although he goes out of the State again, and returns no more. In this country, a rational construction has been given to the disability of being out of the State, and its removal ; and it is not understood to be terminated merely by a return of the debtor for a few days, if during those days he was not within reach. If, however, the creditor knew that he had returned, or might have known it by the exercise of reasonable care and diligence, soon enough to have profited by it, this removal of the disability brings the statute into operation, although the return was for a short time only. SECTION VI. WHEX THE PERIOD OP LIMITATION BEGIN a. It is sometimes a question from what point of time the six years are to be counted. And the general rule is, that they begin when the action might have been commenced. If a credit is given, this period does not begin until the credit has expired. If a note on time be given, the six years do not begin until the time has expired, including the additional three days of grace. If a bill of exchange be given, payable at sight, then the six years begin after present- ment and demand ; but if a note be payable on demand, or money is payable on demand, then the limitation begins at once, because there may be an action at once. If there can be no action until a previous demand, the limitation begins as soon as the demand is made. If money be payable on the happening of any event, then 630 THE PROPERTY RIGHTS OF the limitation begins when that event has happened. If several successive credits are given, as if a note is given which is to be renewed ; or if a credit is ^ven, and then a note is to be given ; or if the credit is longer or shorter at the purchaser's option, as if it be agreed that a note shall be given at two or four months, — then the six years begin when the whole credit or the longer credit has expired. SECTION vn. THE STATUTE DOES NOT AFFECT. COIiLATERAt SECURITY. It is important to remember that the statute of limitations does not avoid or cancel the debt, but only provides that "no action shall be maintained upon it " after a given time. Therefore, it does not follow that no right can be sustained by the debt, although the debt cannot be sued. Thus, if one who holds a common note of hand, on which there is a mortgage or pledge of real or of personal property, without valid excuse neglects to sue the note for more than six years, he can never bring an action upon that note ; but the pledge or mortgage is as valid and effectual as it was before ; and, as far as it goes, his debt is secure ; and for the purpose of realizing this security, by foreclosing a mortgage, for example, he may have whatever process is necessary, although he cannot sue the note itself. And the debtor cannot redeem the property pledged or mortgaged except by payment of the debt. CHAPTER XXVII. INTEEEST AND USURY. SECTION I. WHAT INTEREST IS, AND "WHEN IT IS DUE. Interest means a parent of money for tlie use of money. In most civilized countries the law regulates this ; that is, it declares bow much money may be paid or received for the use of money ; and this is called legal interest ; and if more is paid or agreed to be paid than is thus allowed, it is called usurious interest. By interest is commonly meant legal interest ; and by usury, usurious interest. A CITIZEN OF THE UNITED STATES. 631 Interest may be due, and may be demanded by a creditor, on either of two grounds. One, a bargain to that effect ; the other, by way of damages for withholding money that is due. Indeed, it may be considered as now the settled rule, that wherever money is with- held which is certainly due, the debtor is to be regarded as having promised legal interest for the delay. And upon this implication, as on most others, the usage of trade, and the customary course of dealings between the parties, would have great influence. Thus, in New York, it was held that, where it was known to one party that it was the uniform custom of the other to charge in- terest upon articles sold or manufactured by him after a certain time, the latter was allowed to charge interest accordingly. In general, we may say that interest is allowed by law as follows : on a debt due by judgment of court, it is allowed from the rendition of judgment ; and on an account that has been liquidated, or the balance ascertained, from the day of the liquidation ; for goods sold, from the time of the sale, if there be no credit, and if there be, then from the day when the credit expires ; for rent, from the time that it is due, and this even if the rent is payable otherwise than in maney, but is not so paid ; for money paid for another or lent to another, it begins from the payment or loan. Interest is not generally recoverable upon claims for unliqui- dated damages, nor in actions founded on tort. By unliquidated damages is meant damages not agreed on, and of an uncertain amount, and which the juiy must determine. By torts is meant wrongs, or injuries inflicted. But although interest cannot be given under that name, in actions of this sort, juries are sometimes at liberty to consider it in estimating the damages. It sometimes happens that money is due, but not now pay- able ; and then the interest does not begin until the money is payable. As if a note be on demand, the money is always due, but it is not payable until demand ; and therefore is not on interest until demand. But a note payable at a certain time, or after a certain period, carries interest from that time, whether it be de- manded or not. The laws which regulate interest and prohibit usury are very various, and are not perhaps precisely the same in any two of our States. Formerly usury was looked upon as so great an offence, that the whole debt was forfeited thereby. The law now, however, is — generally, at least — much more lenient. The theory that money is like apy merchandise, worth what it will bring and no more, and that its value should be left to fix itself in a free market, appears to be gaining ground. In many States there are frequent efforts so to change the statutes of usury that parties may make any 6^i'^ THE PROPERTY RIGHTS OF bargain for the use of money which suits them ; but when they make no bargain, the law shall say what is legal interest. And, generally, the forfeiture is now much less than the whole debt. At the close of this chapter will be found a statement of the usury laws of the States. There is no especial form or expression necessary to make a bargain usurious. It is enough for this purpose if there be a sub- stantial payment, or promise of payment, of more than the law allows, either for the use of money lent, or for the forbearance of money due and payable. One thing, however, is certain: there must be a usurious intention, or there is no usury. That is, if one miscalculates, and so receives a promise for more than legal interest, the error may be corrected, the excess waived, and the whole legal interest claimed. But if one makes a bargain for more than legal interest, believing that he has a right to make such a bargain, or that the law gives him all that he claims, this is a mistake of law, and does not save the party from the effect of usury. It may be well to remark, that the law makes a very wide distinction between a mistake of fact and a mista/ce of law. Gen- erally, it will not permit a party to be hurt by a mistake of fact ; but it seldom suffers any one to excuse himself by a mistake of law, be- cause it holds that everybody should know the law, and because it would be dangerous to permit ignorance of the law to operate for any one's benefit. The question has been very much discussed, whether the use of the common tables, which are calculated on the supposition that a year consists of 365 days, is usurious. In New York, it has been held that it is ; but in Massachusetts, and some other States, it is held that the use of such tables does not render the transaction usurious. We think this latter the better opinion. If a debtor requests time, and promises to pay for the for- bearance legal interest, and as much more as the creditor shall be obliged to pay for the same money, this is not a usurious con- tract. And, even if usurious interest be actually taken, this, al- though strong evidence of an original usurious bargain and intent, is not conclusive, but may be rebutted by adequate proof or expla- nation. When a statute provides that a usurious contract is wholly void, such a contract cannot become good afterwards; and therefore a note which is usurious, if it be therefore void by law in its incep- tion, is not valid in the hands of an innocent indorsee. But it is otherwise where the statute does not declare the contract void on account of the usury. If a note, or any securities for a usurious bargain, be delivered up by the creditor and cancelled, and the A CITIZEN OF THE. UNITED STATES. 633 debtor thereupon promises to pay the original debt and lawful in- terest, this promise is valid. New securities for old ones wMoh are tainted with usury are equally void with the old ones, or subject to the same defence. Not so, however, if the usurious part of the original securities be ex- punged, and not included in the new; or if the new ones are given to third parties, who were wholly innocent of the original usurious transaction. And if a debtor suifers his usurious debt to be sued, and a judgment recovered against him for the whole amount, it is then too late for him to take any advantage of the usury. So, if land or goods be mortgaged to secure a usurious debt, and afterwards conveyed to an innocent party, subject to such mort- gage, the latter cannot set up the defence of usury, and thereby defeat an action to enforce the mortgage. Usurers resort to many devices to conceal their usury; and sometimes it is very difficult for the law to reach and punish this offence. A common method is for the lender of money to sell some chattel, or a parcel of goods, at a high price, the borrower paying this price in part as a premium for the loan. In England, it would seem from the reports to be quite common for one who discounts a note to make the discount nominally at legal rates, but to furnish a part of the amount in goods at a very high valuation. In all cases of this kind, or rather in all cases where questions of this kind arise, the court endeavors to ascertain the real character of the transaction. Such a transaction is always suspicious, for the obvious reason that one who wants to borrow money is not very likely to desire at the same time to buy goods at a high price. But the jury decide all questions of this kind ; and it is their duty to judge of the actual in- tention of the parties from all the evidence offered. If that intention Is substantially that one should loan his money to another, who shall therefor, in any manner whatever, pay to the lender more than legal interest, it is a case of usury. " Where the real truth is a loan of money," said Lord Mansfield, " the wit of man cannot find a shift to take it out of the statute." If this great judge meant only that, whenever legal evidence shows the transaction to be a usurious loan, the law pays no respect whatever to any pretence or disguise, this is certainly true. But the wit of man does undoubtedly devise many " shifts," which the law cannot detect. There seems to be a general rule in these cases in reference to the burden of proof; the borrower must first show that he took the goods on compulsion ; and then it is for the lender to prove that no more than their actual value was received or charged for them. If one should borrow stock at a valuation much above the market rate, and agree to pay interest on this value for the use of the stock to sell or pledge, this would be usurbus. 634 THE PROPERTY RIGHTS OF One may lend his stock, and may, without usury, give the bor- rower the option to replace the stock, or to pay for it at even a high value, with interest. But, if he reserves this option to himself, the bargain is usurious, because it gives the lender the right to claim more than legal interest. So, the lender may reserve either the dividends or the interest, if he elects at the time of the loan ; but he cannot reserve the right of ejecting at a future time, when he shall know what the dividends are. A contract may seem to be two, and yet be but one, if the seem- ing two are but parts of a whole. Thus, if A borrows one thousand dollars, and gives a note promising to pay legal interest for it, and then gives another note for (or otherwise promises to pay) a further sum, in fact for no consideration but the loan, this is all one trans- action, and it constitutes a usurious contract. If, after a payment has been made, which discharged all legal obligation, the payer voluntarily adds a gift, this would not be usurious. And if there be a loan on legal terms, with no promise or obligation on the part of the borrower to pay any more, this might not be invalidated by a mere understanding that the borrower should, when the money was paid by him, make a present to the lender for the accommodation. But in every such case the question for a jury is, What was this additional transfer of money, in fact ; was it a voluntary gift, or was it the payment of a debt ? If an honest gift, it was not usurious ; if a payment, it was usurious. A foreign contract, valid and lawful where made, may be enforced in a State in which such a contract, if made there, would be usurious. But if usurious where it was made, and, by reason of that usury, wholly void in that State, if it is put in suit in another State where the penalty for usury is less, it cannot be enforced under this mitigated penalty ; but it is wholly void there also. SECTION II. A CHARGE FOR RISK OH FOR SERVICE. It is undoubtedly lawful for a lender to charge an extra price for the risk he incurs, provided that risk be perfectly distinct and different from the merely personal risk of the debtor's being unable to pay. If any thing is paid for this last risk, it is certainly usury. So, one may charge for services rendered, for brokerage, or for rate of exchange, and may even cause a domestic loan or discount to be actually converted into a foreign one, so as to charge the exchange; and this would not be usurious. But here, as before, and indeed throughout the law of usury, it is necessary to remember A CITIZEN OP THE UNITED STATES. 635 that the actual intention, and not the apparent purpose or form of the transaction, must determine its character. So, if one lends money to be used in business, and lends it upon such terms that he becomes a partner in fact with those who use it, taking his share of the profits, and becoming liable for the losses, this is not usurious. So, if one enters into a partnership, and provides money for its business, and the other party is to bear all the losses, and also to pay the capitalist more than legal interest as his share of the profits, this is not usurious, because there is no loan, if there be in fact a partnership ; for then there is a very important risk, as he becomes liable for all the debts of the partnership. The banks always get more than legal interest by their way of discounting notes and deducting the whole interest from the amount they give. This is perfectly obvious if we take an extreme case ; as if a bank discounted a note of a thousand dollars at fifteen years, in Massachusetts, when the legal interest was six per cent, the bank would discount the interest of all the fifteen years ; the borrower would receive one hundred dollars, and at the end of fifteen years he would pay back one thousand dollars, which is equivalent to paying nine hundred dollars for the use of one hun- dred for fifteen years, whereas the legal interest would be but ninety dollars. But this method is now established by usage and sanctioned by law. It should, however, be confined to discounts of negotiable paper, not having a very long time to run. For the inde is founded upon usage, and the usage goes no further. SECTION ni. THE SALE OF NOTES. There are, perhaps, no questions in relation to interest and usury of more importance than those which arise from the sale of notes or other securities. In the first place, there is no doubt what- ever that the owner of a note has as good a right to sell it for the most he can get, as he has to sell any goods or wares which he owns. There is here no question of usury, because there is no loan of money nor forbearance of debt. But, on the other hand, it is quite as certain that if any person makes his own note, and sells that for what he can get, this, while in appearance the sale of a note, is in fact the giving of a note for money. It is a loan and a boiTOwing, and nothing else. And if the apparent sale be for such a price that the seller pays more than legal interest, or, in other words, if the note bear interest and is sold for less than its face, or is not on 636 THE PROPERTY RIGHTS OF interest, and more than interest is discounted, it is a usurious trans- action. Supposing these two rules to be settled, the question in each case is. Under which of them does that case come, or to which of them does it draw nearest ? We are not aware of any general principle so likely to be of use in determining these questions as this: if the seller of a note acquired it by purchase, or if it is his for money advanced or lent by him to its full amount, he may sell it for what he can get ; but if he be the maker of the note, or the agent of the maker, and receives for the note less than would be paid hira if a lawful discount were made, it is a usurious loan. In other words, the first holder of a note (and the maker of a note is not and cannot be its first holder) must pay to the maker the face of the note, or its full amount. And after paying this, he may sell it, and any subsequent purchaser may sell it, as merchandise. The same rule must apply to corporations, and all other bodies or persons who issue their notes or bonds on interest. If sold by brokers for them, for less than the full amount, it is usurious. Nor can such notes come into the market free from the taint and the defence of usury, unless the first party who holds them pays for them their full value. But then comes another question. If a note be offered for sale, and be sold for less than its face, and the purchaser supposes him- self to buy it from an actual holder and not from the maker, can the maker interpose the defence that it was actually usurious, on the ground that the seller was only his agent ? I should say that he could not ; that there can be no usury unless this is intended ; and that the guilty intention of one party cannot affect another party who was innocent. I should say, also, that one who, having no interest in a note, indorses or guarantees it for a certain premium, will be liable for the amount it promises ; he does not now add his credit to the value of his property and sell both together, as where he indorses a note which he holds himself, but sells his credit alone. This transaction I should not think usurious. And if it was open to no other defence, as fraud, for example, and was in fact what it purported to be, and not a mere cover for a usurious loan, we know no good reason why such indorser or guarantor should not be held liable to the full amount of his promise. A CITIZEN OF THE UNITED STATES. 637 SECTION IV. COMPOUND INTEREST. Compound interest is sometimes said to be usurious; but it is not 80 ; and even those cases which speak of it as " savoring of usury " may be thought to go too far, unless every hard bargdin for money is usurious. As the authorities now stand, however, a con- tract or promise to pay money with compound interest cannot, gen- erally, be enforced. On the other hand, it is neither wholly void, nor attended -with any penalty, as it would be if usurious; but is valid for the principal and simple interest only. Nevertheless, compound interest is sometimes recognized as due by courts of law, as well as of equity; and sometimes, too, by its own name. Thus, if a trustee be proved to have had the money of the party for whom he is trustee ( who is called in law his cestui que trust) for a long time without accounting for it, he may be charged with the whole amount, reckoned at compound interest, so as to cover his unlawful profits. If compound interest has accrued under a bargain for it, and been actually paid, it cannot be recovered back, as money usuiiously paid may be. And if accounts are agreed to be settled by annual rests, which is in fact compound interest, or are actually settled so in good faith, the law sanctions this. Some- times, in cases of disputed accounts, the courts direct this method of settlement. Where money due on interest has been paid by sundry instal- ments, the mode of adjusting the amount which has the best authority, and the prevailing usage in its favor, seems to be this : Compute the interest due on the principal sum at the time when a payment, either alone or in conjunction with preceding payments, shall equal or exceed the interest due on the principal. Deduct this sum, and upon the balance cast interest as before, until a pay- ment or payments equal the interest due ; then deduct again, and so on. ABSTRACTS OF THE USUBY LAWS OF THE STATES. These laws are stated from the latest information ; but are con- stantly undergoing change, and are likely to be so, until restrictions upon interest are abolished, as they now are in some States. Alabama. — Legal interest, eight per cent. Usurious interest cannot be recovered, aud, if paid, is to be deducted from the principal. Arkansas. — Legal interest, six per cent. Parties may agree, by con- tract, written or verbal, for whatever amount they will. 638 THE PROPERTY RIGHTS OF California. — Legal interest, seven per cent. Ten per cent on money overdue on any written instrument. Connecticut. — Legal interest, seven per cent. Any person or cor- poration taking more than seven per cent forfeits the value so taken to any person who sues therefor within one year thereafter, and prosecutes his suit to effect. Contracts to pay taxes on the sum loaned, or insur- ance upon estate mortgaged to secure the same, not usurious. District op Columbia. — Legal interest, six per cent. Ten per cent may be paid on agreement. Any excess forfeits the whole interest. Delaware. — Legal interest, six per cent. Penalty for taking more, — forfeiture of the money lent; half to the prosecutor, half to the State. Florida. — Legal interest, six per cent. But the usury laws are ex- presslyabolished. Georgia. — Legal interest, seven per cent. More than legal interest cannot be recovered. All titles to property made as part of a usurious contract are void. Illinois. — Legal interest, six per cent. Parties may agree upon ten per cent orally or in writing. If more is agreed on or is taken, only tht, principal can be recovered. Indiana. — Legal interest, six per cent. Ten per cent may be agreed upon in writing. It may be taken in advance. Excess cannot be re- covered, and, if paid, shall be considered as paid on account of the principal. Iowa. — Legal interest, six per cent. Parties may agree in writing for ten per cent. If contract be for more, the creditor recovers only the principal, and interest at ten per cent is forfeited to the State. Kansas. — Legal interest, seven per cent. Parties may stipulate for any rate not exceeding twelve per cent. Contract for more forfeits all interest. Usurious payments held to be made on account of principal. Kentucky. — Legal interest, six per cent. Extra interest forfeited; if paid, may be recovered back. Louisiana. — Legal interest, five per cent. Conventional interest shall in no case exceed eight per cent, under penalty of forfeiture of entire interest. Owner of negotiable paper discounted for more than eight per cent may recover eight per cent. Usurious interest may be recovered back, but must-be sued for within twelve months. Maine. — Legal interest, six per cent., in the absence of any agreement in writing. No bank can take a greater interest, unless by agreement in writing ; but in discounting negotiable securities payable at another place, the bank may charge in addition the existing rate of exchange between the places of payment and of discount. Maryland. — Legal interest, six per cent. Excess forfeited. Massachusetts. — Legal intei-est, six per cent. Any rate of interest or discount may be made by agreement; but if greater than six per cent, it must be in writing. Michigan. — Legal interest, seven per cent. Parties may agree in writing upon any rate not exceeding ten per cent. If more interest is agreed for, only legal interest recoverable. Minnesota. — Legal interest, seven per cent. Parties may agree in A CITIZEN OF THE UNITED STATES. 639 •writing for more, but agreement not valid for any excess over twelve per cent. Interest on judgments, six per cent. Mississippi. — Legal interest, six per cent. Parties may agree in ■writing for ten per cent. If more be taken or agreed for, the excess is forfeited. Missouri. — Legal interest, six per cent; but parties may agree in writing for any rate not to exceed ten per cent. If more be taken or agreed for, the creditor recovers only the principal, and interest at ten per cent is forfeited to the State. Parties may contract in writing for the payment of interest upon interest; but the interest shall not be compounded oftener than once a year. Nebraska. — Legal interest, ten per cent. Parties may agree on any rate not exceeding fifteen per cent. On proof of illegal interest, plaintiff shall recover only principal. Nevada. — Legal interest, ten per cent. But parties may agree in writing for any rate. New Hampshire. — Legal interest, six per cent. A person receiving more forfeits threefold the excess; but contracts are not invalidated by securing or taking more. Exceptions as to contracts of farmers and mer- chants, as in Maine. New Jersey. — Legal interest, seven per cent. ; on usurious contract, principal only can be recovered. , New York. — Legal interest, seven per cent. A contract for more than legal interest is wholly void. If more than legal interest is paid, it may be recovered back within a year by payer, or within the next three years by the overseers of the poor. No corporation can interpose the defence of usury; nor can a joint-stock company, having the powers of a corporation. North Carolina. — Legal interest, six per cent. Eight per cent, may be recovered for loan of money by written agreement. On usurious con- tracts no interest is recoverable. Ohio. — Legal interest, six per cent. Any rate not exceeding ten per cent maybe agreed upon in writing; excess cannot be recovered. Banks can charge or take by discount only six per cent. Railroad companies may borrow money at seven per cent. Oregon. — Legal interest, ten per cent. Parties may agree for one per cent a month. Usurious interest works a forfeiture of tlie principal and interest. Pennsylvania. — Legal interest, six per cent. Excess cannot be recovered. If paid, may be recovered back if sued for within six months. Rhode Island. — Legal interest, six per cent. Any higher rate may be agreed upon. South Carolina. — Legal interest, seven per cent. More than legal interest may be agreed upon by the parties. Tennessee. — Legal interest, six per cent. Parties may agree in writ- ing for ten per cent. If more be charged, the whole interest is forfeited, and if paid, may be recovered back; and the creditor is liable to a fine equal in amount to the excessive interest. Texas. — Legal interest, eight per cent. Parties may agree in writing 640 THE PROPERTY RIGHTS OF for twelve per cent. If more than this is agreed for, no interest can be recovered. Vermont. — More than six per cent prohibited; and a person paying more may recover excess; but this is not to extend to usage of farmers or merchants, as in Maine and New Hampshire. Virginia. — Legal interest, six per cent. All contracts for a greater rate void. Excess, if paid, may be recovered back. The receiver is liable to a fine of double the amount of the principal. West Virginia. — Same as Virginia; but a new code is under con- sideration, which may make a change in the law of usury. Wisconsin. — Legal interest, seven per cent; but parties may agree upon a rate not exceeding ten per cent. Usurious contracts are void, and if excessive interest be paid, treble the amount thereof may be recovered back. CHAPTER XXVm. THE LAW OF PLACE. SECTION I. WHAT IS MEANT BY THE LAW OF PLACE. If either of the parties to a contract is not at home, or if hoth are not at the same home, when they enter into the contract, or if it is to be executed abroad, or if it comes into litigation before a foreign tribunal, then the rights and the obligations of the parties may be affected either by the law of the place of the contract, or by the law of the domicile or home of a party, or by the law of the plnce where the thing is situated to which the contract refers, or by the law of the tribunal before wliich the case is litigated. All of these are commonly included in the Latin phrase lex loci, or, as the phrase is translated, the law of place. It is obvious that this law must be of great importance where- ever citizens of distinct nations have much commercial intercourse with each other. In this country it has an especial and very gi-eat importance, from the circumstance that, while the citizens of the whole country have at least as much business connection with each other as those of any other nation, our country is composed of thirty-seven separate and independent sovereignties, which are, for most commercial purposes, regarded by the law as foreign to each other. A CITIZEN OF THE UNITED STATES. 641 SECTION II. THE GENERAI. PRINCIPLES OF THE LAW OF PLACE. The general principles upon wMch tlie law of place depends are four : First, every sovereignty can bind, by its laws, all persons and all things within the limits of the State. Second, no law has any force or authority of its own, beyond those limits. Third, by the comity or courtesy of nations, — aided in our case, as to the several States, by the peculiar and close relation between the States, and for some purposes by a constitutional provision, — the laws of foreign States have a qualified force and influence. The fourth rule is perhaps that of the most frequent applica- tion. It is, that a contract which is not valid where it is made is not valid anywhere else ; and one which is valid where it is made is valid everywhere. Thus a contract made in Massachusetts, and there void because usurious, was sued in New Hampshire, and held to be void there, although the law of New Hampshire would not have avoided it if it had "been made there. But courts do not take notice of foreign revenue laws, and will enforce foreign contracts made in violation of them. If contracts are made only orally, where by law they should be in writing, they cannot be enforced elsewhere where writing is not required ; but if made orally where writing is not required, they can be enforced in other countries where such contracts should be in writing. The rule that a con- tract which is valid where it is made is valid everywhere, is ap- plicable to contracts of marriage. As contracts relate either to movables or immovables, or, to use the phraseology of our own law, to personal property or to real property, the following distinction is taken. If the contract refers to personal property (which never has a fixed place, and is therefore called, in some systems of law, movable property), the place of the contract governs by its law the construction and effect of the con- tract. But if the contract refers to real property, it is construed and applied by the law of the place where that real property is situated, without reference, so far as the title is concerned, to the law of the place of the contract. Hence, the title to land can only be given or received as the law of the place where the land is situated requires and determines. And it has been said that the same rule may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, manufacturing stock, railroad shares, and other incoi-poreal property, owing its existence to or regulated 41 642 THE PROPERTY RIGHTS OF " by peculiar local laws ; and therefore no effectual transfer can bo made of such property, except in the manner prescribed by the local regulations. SECTION in. THE PLACE OF THE CONTRACT. A contract is made when both parties agree to it, and not before. It is therefore made where both parties agree to it, if this is one place. But if the contract be made by letter, or by separate signatures to an instrument, the contract is then made where that signature is put to it, or that letter is written, which in fact com- pletes the contract. But this rule is subject to a very important qualification when the contract is made in one place and is to be performed in another place ; for then, in general, the law of this last place must determine the force and effect of the contract, for the obvious and strong reason that parties who agreed that a certain thing should be done in a certain place intended that a thing should be done there which was lawful there, and therefore bargained with reference to the laws of the place, not in which they stood, but in which they were to act. This principle has been applied to an antenuptial contract; and it was held that, when parties marry in reference to the laws of another country as their intended domicile, the law of the intended domicile governs the construction of their marriage contract, as to the rights of property. But for many commercial transactions, both of these roles seem to be in force; or rather to be blended in such a way as to give the parties an option as to what shall be the place of the contract, and what the rule of law which shall apply to it. Thus, a note written in New York, and expressly payable in New York, is, to all intents and purposes, a New York note ; and if more than seven per cent interest is promised, it would be usurious, whatever be the domicile of the parties. If made in New York, and no place of payment is expressed, it is payable and may be demanded anywhere, but would Still be a New York note. But if made in New York, but expressly payable in Boston (where any amount of interest may be agreed for), and it promised to pay ten per cent interest, when payment of the note was demanded in Boston the promise of interest would be held valid. So, if the note were made in Boston, payable in New York, and promising to pay ten per cent interest, it would not be usurious. In other words, if a note is made in one place, but is payable in another, the parties have their option to make it bear the interest which is lawful in either place. A CITIZEN OF THE UNITED STATES. 643 If the contract be entered into for money, and is made in one place but is payable at another place on a day certain, and no in- terest be stipulated, and payment be delayed, interest by way of damages shall be allowed, according to the law of the place of pay- ment, where the money may be supposed to have been required by the creditor for use, and where he might be supposed to have bor- rowed money to supply the deficiency thus occurring, and to have paid the rate of interest of that country. If a note made in New York and payable in Massachusetts were demanded in Massa- chusetts and unpaid, and afterwards put in suit in Massachusetts, and personal service made on the promisor there, I should say that any interest which it bore should be recovered, provided it were lawful in Massachusetts. And indeed, generally, that such a note, being made in good faith, might always bear any interest lawful where it was payable. But a note made in a State where the law permitted only a low interest, and intended in f^ct to be paid in that State, but written payable in some State permitting higher interest, merely to get this higher interest, could not by this trick escape the usury laws of the State where it was made, and get the higher interest. SECTION IV. DOMICILE. It is sometimes very important to determine where a person has his domicile, or home. In general, it is his residence, or that country in which he permanently resides. He may change it by a change of place both in fact and in intent, but not by either alone. Thus, a citizen of New York, going to London and remaining there a long time, but without the intention of relinquishing his home in New York, does not lose that home. And, if he stays in New York, his intention to live and remain abroad does not affect his domicile until he goes in fact. He may have his legal domicile in one place, and yet spend a very large part of his time in another. But he cannot have more than one domicile. His words or declarations are not the only evidence of his intent ; and they are much stronger evidence when against hi^ interest than when they are in his favor. Thus, one goes from Boston to England. If he goes intending not merely to travel, but to change his residence permanently, and not to return to this coun- try unless as a visitor, he changes his domicile from the day that he leaves this country. Let us suppose, howev^, that he is still re- garded by the assessors as residing in Boston, although travelling abroad, and is taxed accordingly. If he can prove that he has 644 THE PROPERTY RIGHTS OF abandoned his original home, he escapes from the tax which he must otherwise pay. Now, his declarations that he has no longer a home here, and that his residence is permanently fixed in England, and the like,Vould be very far from conclusive in his favor, and could indeed be hardly received as evidence at all, unless they were confirmed by facts and circumstances. But if it could be shown that he had constantly asserted that he was still an American, that he had no other permanent residence, and no home but that which he had temporarily left as a traveller, these declarations would be almost conclusive against him. In general, such a question would be determined by all the words and acts, the disposition of prop- erty at home, the length and the character of the residence abroad, and all the acts and circumstances which would indicate the actual intention and understanding of the party. Two cases have occurred in the city of Boston which illustrate this question. In one, a citizen of Boston, who had been at school in the city of Edinburgh when a boy and formed a predilection for that place as a residence, and had expressed a determination to re- side there if he ever should have the means of so doing, removed with his family to that city in 1836, declaring, at the time of his departure, that he intended to reside abroad, and that, if he should return to the United States, he should not live in Boston. He resided in Edinburgh and vicinity, as a housekeeper, taking a lease of an estate for a terra of years, and endeavored to engage an Amer- ican to enter his family for two years, as instructor of his children. Before he left Boston, he made a contract for the sale of his mansion- house and furniture there, but shortly afterward procured said con- tract to be annulled (assigning as his reason therefor that, in case of his death in Europe, his wife might wish to return to Boston), and let his house and furniture to a tenant; Held, that he had changed his domicile, and was not liable to taxation as an inhabitant of Boston in 1837. In the other case, a native inhabitant of Boston, intending to reside for a time in France, with his family, departed for that country in June, 1836, and was followed by his family about three months afterwards. His dwelling-house and furniture were leased for a year, and he hired a house for a year in Paris. At the time of his departure he intended to return and resume his residence in Boston, but had not fixed on any time for his return. He returned in about sixteen months, and his family in about nine months after- wards. Held, that he continued to be an inhabitant of Boston, and that he was rightly taxed there, during his absence, for his person and personal property. This last case was distinguished from the former by the dififerent intent of the parties upon their departure from home. A CITIZEN OF TEE UNITED STATES. 645 It is a general rule that, if one has a domicile, he retains it until he acquires another. Thus, if a seaman, without family or property, sails fi-om the place of his nativity, which may be considered his domicile of origin, although he may return only at long intervals, or even be absent for many years, yet, if he does not, by some actual residence or other means, acquii-e a domicile elsewhere, he retains his domicile of origin. It seems to be agreed that one may dwell for a considerable time, and even regularly during a large part of the year, in one place, or even in one State, and yet have his domicile in another. A woman marrying takes her husband's domicile, and changes it with him. A minor child has the domicile of his father, or of his mother if she survive his father ; and the surviving parent, with whom a child lives, by changing his or her own domicile in good faith, changes that of the child. And even a guardian has the same power. CHAPTER XXIX. TEADE-MAEKS. The statute of July 8, 1870, provides for trade-marks. The following are the important sections which relate to this sub- ject : — Sect. 77. And he it further enacted, That any person or firm domiciled in the United States, and any corporation created by the authority of the United States, or of any State or Territory thereof, and any person, firm, or corporation resident of or located in any foreign country which by treaty or convention afi'ords similar privi- leges to citizens of the United States, and who are entitled to the exclusive use of any lawful trade-mark, or who intend to adopt and use any trade-mark for exclusive use within the United States, may obtain protection for such lawful trade-mark by complying with the following requirements : to wit, — First, By causing to be recorded in the patent office the names of the parties, and their residences and place of business, who desire the protection of the trade-mark. Second, The class of merchandise, and the particular description of goods comprised in such class, by which the trade-mark has been or is intended to be appropriated. 646 THE PROPERTY RIGHTS OF Third, A description of the trade-mark itself, with fac-similes thereof, and the mode in which it has, been or is intended to be ap- plied and used. Fourth, The length of time, if any, during which the trade-mark has been used. Fifth, The payment of a fee of twenty-five dollars, in the same manner and for the same purpose as the fee required for patents. Sixth, The compliance wil^ snch regulations as may be pre- scribed by the Commissioner of Patents. Seventh, The filing of a declaration, under the oath of the per- son, or of some member of the firm, or officer of the corporation, to the efiect that the party claiming protection for the trade-mark has a right to the use of the same, and that no other person, firm, or cor- poration has the right to such use, either in the identical form, or having such near resemblance thereto, as might be calculated to deceive ; and that the description and fac-similes presented for record are true copies of the trade-mark sought to be protected. Sect. 78. And be it farther enacted, That such trade-mark shall remain in force for thirty years from the date of such registration, except in oases where such trade-mark is claimed for and applied to articles not manufactured in this country, and in which it receives protection under the laws of any foreign country for a shorter period ; in which case it shall cease to have any force in this country by vir- tue of this act at the same time that it becomes of no efiect else- where ; and during the period that it remains in force it shall entitle the person, firm, or corporation registering the same to the exclusive use thereof so far as regards the description of goods to which it is appropriated in the statement filed under oath as aforesaid ; and no other person shall lawfully use the same trade-mark, or substantially the same, or so nearly resembling it as to be calculated to deceive, upon substantially the same description of goods : Provided, That, six months prior to the expiration of said term of thirty years, application may be made for a renewal of such registration, under regulations to be pi-escribed by the Commissioner of Patents, and the fee for such renewal shall be the same as for the original regis- tration ; certificate of such renewal shall be issued in the same manner as for the original registration, and such trade-mark shall remain in force for a further term of thirty years : And provided further, That nothing in this section shall be construed by any court as abridging, or. in any manner afiecting unfavorably, the claim of any person, firm, corporation, or company, to any trade- mark after the expiration of the term for which such trade-mark was registered. A CITIZEN OP TEE UNITED STATES. 647 Sect. 79. And be it further enacted, That any person or corpora- tion who shall reproduce, counterfeit, copy, or imitate any such re- corded trade-mark, and affix the same to goods of substantially the same descriptive properties and qualities as those referred to in the registration, shall be liable to an action in the case for damages for such wrongful use of said trade-mark, at the suit of the owner thereof, in any court of competent jurisdiction in the United States; and the party aggi-ieved shall also have his remedy according to the course of equity to enjoin the wrongful use of his trade-mark, and to recover compensation therefor in any court having jurisdiction over the person guilty of such wrongful use. The Commissioner of Patents shall not receive and record any proposed trade-mark which is not and cannot become a lawful trade-mark, or which is merely the name of a person, firm, or corporation only, unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons, or which is identical with a trade-mark appropriate to the same class of merchandise, and belonging to a different owner, and already registered, or received for registration, or which so nearly resembles such last-mentioned trade-mark as to be likely to deceive the public : Provided, That this section shall not prevent the registry of any lawful trade-mark rightfully used at the time of the passage of this act. Sect. 80. And be it farther enacted, That the time of the receipt of any trade-mark at the patent office for registration shall be noted and recorded ; and copies of the trade-mark, and of the date of the receipt thereo:^ and of the statement filed therewith, under the seal of the patent office, certified by the commissioner, shall be evidence in any suit in which such trade-mark shall be brought in contro- versy. The sections 81, 82, 83, and 84, authorize the commissioner to make rules, &o., relating to the transfer of trade-marks ; prohibit the obtaining of trade-marks fraudulently; save to every one any remedy he has now for the fraudulent use of his trade-mark ; and provide that no trade-mark shall be issued in any unlawful or injurious business, or if it be sought for purposes of fraud or dieception. 648 THE PROPERTY RIGHTS OF CHAPTER XXX. MEAKS PKOYIDBD FOE THE RECOVERY AND COLLECTIOIS^ OP DEBTS. 1. Arrest and Imprisonment. — In eight States no person can be arrested or imprisoned for debt. These are Virginia, Maryland, North Carolina, Mississippi, Florida, Wisconsin, Arkansas, and Texas. In Califprnia no female, and in Louisiana no female and no person who has not a domicile in the State, and in Ohio no female nor any officer or soldier of the Revolutionary army, can be arrested or im- prisoned for debt. In all the States the intention of the law is to limit imprisonment to those cases in which either fraud was com- mitted in the contraction of the debt, or the debtor intends to ab- scond out of the reach of process. The provisions to effect this are very various. Generally, the plaintiff must file in the clerk's office, or indorse upon the writ, an affidavit of the facts on which he grounds the right of arrest. In some of the States provision is made for the imprisonment on execution of a debtor who can be found to possess, and refuses to surrender, property or interest, real or personal, which might be made available for the payment of hia' debts. 2. The Trustee Process. — The trustee process, or garnishee process, or process of foreign attachment, — by all which names it is known, — is now nearly or quite universal. It is substantially this : A owes B a debt ; A has no property in his hands or pos- session which B can get at ; but A has deposited in the hands of C goods or property or credits of some kind, or A has a valid claim against C for services rendered, or money loaned, or goods sold, or something else ; and this B gets by suing A, not with a common writ, but with a trustee writ, so called, in which he declares that C is the trustee of A, for property, &c. ; and on this writ, if B recovers payment against A, he will have an execution against all A's prop- erty in the hands of C, and all A's valid demands against C. But C, when notified, may come into court, and, in answer to all ques- tions put to him, declare that he (C) has no property in his hands belonging to A, and thatJie does not owe A any thing. And then the plaintiff may put to him such questions as he pleases, to draw out the truth. No one is adjudged trustee, or made to pay to the creditor the debt due to the debtor, if he has given a negotiable note for it, be- cause he might have to pay it again to an honest indorsee. Nor if A CITIZEN OF THE UNITED STATES. 649 the debt is not certainly due ; nor, generally, if it is due from the trustee in any oflScial capacity, which will require him to account over for the money in his hands ; nor if the debtor has recovered a judgment against the trustee, on which execution may issue. 3. The Homestead. — In most of the States a homestead is protected from creditors, and exempted from all attachment or execution, excepting in some States for taxes, or wages of labor to a certain amount. In the abstract of the Law of Husband and Wife, already given in Section 2 of Chapter VII., a brief statement of the quantities and values of the homesteads exempted from sale on execution in the several States is also given. This is stated in that connection, because the principal purpose of these homestead exemptions seems to be the protection of the wife and family. Various provisions are made in each of these States to combine a due protection of the creditor with proper prevention of frauJ. The most common means are by requiring that " the homestead " should be distinctly defined and set apart, and in many cases by the additional requirement that the description and location of it should be put on public record. In all the States there are also exemption laws. These pi^ovide very generally that bed and bedding and other necessary furnituie, needful clothing, a Bible and school-books, and a certain amount of food and fuel, shall not be taken on attachment or execution. In some States the tools of a trade, the uniform, arms, and equipments of soldiers or officers in the militia, the family burying-vault and gravestones, a team or yoke of oxen, bees with their hives and honey, a boat for fishing, &c., are exempted. The statutes often enumerate the articles exempted quite minutely, and then add that necessai-y articles to a certain amount of value, usually one or two hundred dollars, are also exempted. CHAPTER XXXI, THE LIBN^S OF MECHANICS AND MATE-- KIAL-MEN FOR THEIR WAGES AND MATERIALS. In nearly all our States there are now some provisions for securing to mechanics, and to persons supplying materials (who are called " material-men "), their wages and pay for their materials, by means of liens, as they are called in law. A lien is a hold upon or a 650 TEE PROPERTY RIGHTS OF valid claim against property. This means that every mechanic em- ployed upon a house, and, in most of the States, upon a vessel, and in some, upon any property whatever, as a railroad or canal, either in the construction or repair of it, has a lien upon the property on which he has labored op for which he has supplied materials, for the amount of his wages and the price of his materials. This lien or claim he has for a certain time ; and during that time he may either sue for his wages, and make an attachment of the property, or, in some States, file a petition with the proper court; and in either may have the property sold to pay his wages, unless the owner redeems it. The statutes of the several States contain various provisions to the efiect that the mechanic or material-man shall give reasonable notice of his lien, or take steps to enforce it within a reasonable time. The reason of these provisions is obvious enough. The purpose of the law is to assist and protect the mechanic, or material-man^ but not to enable him to commit a fraud or do an injury to his' neighbors ; and it would be an injury to a man to let him buy a house and pay full price for it, and then tell him that the mechanics who built it had a lien (which is much the same in effect as a mort- gage) upon the house, without his knowing any thing about it; and' it would be an injury to an owner, who had contracted with the master-workman to repair or change his house at great expense, to settle with this master-workman in due time and pay him the full amount of his bill, without any notice to the owner that he was under an obligation to pay again for the labor spent upon his house, or let the house go on execution. Of all these laws for the recovery of debts, and the enforce- ment of the liens of mechanics, the provisions now in force are quite recent. Only of late years has imprisonment for debt been greatly mitigated or removed, and the trustee or garnishee process made what it now is, exceedingly convenient and useful. The homestead law and this lien law, though now so widely spread, are a modern invention, or, at least, of modern introduction. The effect of this recent origin is twofold. First, important practical questions still exist as to their constructiouj application, and effect,, which only time can solve. Secondly, there is not only no general agreement as to their details, but, to all appearance, no permanent contentment with these details anywhere. The statutes on these subjects undergo very frequent changes of all degrees of impor- tance, and we have no reasonable assurance anywhere that pre- cisely what is law to-day will be law in the same place to-morrow. I have thought it best, therefore, not to attempt to give all those statutory provisions of the several States in detail. Such A CITIZEN OF THE UNITED STATES. 651 a thing might be milch worse than useless if it led to conduct grounded on a mistaken belief that the law of one time is just what it is at another. Nothing more has been attempted, there- fore, than this : first, to give a general and accurate view of all those principles of the laws relating to creditor and debtor which are now generally agreed upon, and may be regarded as probably permanent ; secondly, to give such information as may be depended upon to those who are caught in an emergency where they cannot at once seek counsel, or for any reason will not, and who may here be told, in general, how the law stands in relation to them ; thirdly, to indicate distinctly, to the mechanic what rights he may possess and what securities he may hold, and how he may lose the rights and securities he possesses, and to the owner or buyer what liabili- ties he may incur, unless the one and the other take the proper course which the law has provided for their safety. In the present state of the laws for the collection of debts or the exemption of property, it would be difficult for any one but a lawyer to learn or state all the exact provisions and efiects of these laws. And, even if this were possible, no mechanic would probably be willing to trust to himself to make out his writ or file his peti- tion to enforce his claims or lien ; and any competent counsel whom he would employ for this purpose would be able to tell him what the law was at that very time, in that very State, and on that precise question. For these reasons little more is attempted in this chapter, he- cause little more is thought possible than to yield all available assistance to debtors or creditors who have not the means or oppoi- tunity of employing counsel, and of indicating to those who can consult them, the rights, security, and safety they may possess, by wise advice and accurate conformity with the law. The forms to be used under the lien laws are not prescribed by statute. Those given below are in use in some of our principal cities ; and the same, in substance, would be suitable anywhere. (183.) A NOTICE UNDER MECHANIC'S LIEN LAW. (ro healed mih the clerk of the county.) To • Esquire, Clerk of the City and County of Sir: Please to take notice, That I, residing at No. Street, in have a claim against amounting to the sum of due to me, and that the claim is made for and on 652 THE PROPERTY RIGHTS OF account of {here state the work or materials), and tlTat such work was done in pursuance of (here describe the con.lract), which building is owned by situated in the ward of the city of on the side of Street, and is known as No. The following is a diagram of said premises (or, the said premises being described as follows) . And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the pro- visions of an act of the legislature of the State of to secure the payment of mechanics, laborers, and persons furnishing materials towards the erection, altering, or repairing of buildings. Dated, this day of 18 (Signature.) County of ^ [-88. City op ) (TJie name of the party claiming the lien), being duly sworn, says, that he is the claimant mentioned in the foregoing notice of lien, that he has read the said notice and knows the contents thereof, and that the same is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. to before me, this day of 18 (Signature.) (184.) A BILL OF PARTICULARS OF MECHANIC'S CLAIM. (To be served on owner.) A BiLi^ or PARTICULARS, Of the amount claimed to be due from for and on account of (work or materials), and that such work was done (or materials furnished) in pursuance of (state the contract or order) , which building is owned by situated in the ward of the city of on the side of Street, and is known as No of said street. M. To 18 (185.) A RELEASE AND DISCHARGE OF A MECHANIC'S LIEN. I DO HEREBY CERTiET, That a Certain mechanic's lien, filed in the office of the clerk of the county of , the day of one thousand eight hundred and at o'clock in the noon, in favor of claimant against the building and lot, situate side of A CITIZEN OF THE UNITED STATES. 653 Street, and known as No. in said street, whereof is owner, and is contractor, is -discharged. {Signature.) ss. On the day of one thousand eight hundred and hefore me came who is known to me to be the individual described in and who executed the above certificate, and acknowledged that he executed the same. (Signature.) (186.) EELEASE AND DISCHARGE OF A MECHANIC'S LIEN. ANOTHER FORM. Whereas, We, the subscribers, have erected and furnished materials for erecting on lot or piece of ground situate And have agreed to release all liens which we or any or either of us have, or might have, on the said by reasons of materials furnished or work performed for erecting the same. Now these presents witness, that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar, to each of us at or before the sealing and delivery hereof by the said well and truly paid, the receipt whereof we do hereby acknowledge, haye remised, released, and for ever quitclaimed, and by these presents do remise, release, and for ever quitclaim, unto the said and to his heirs and assigns, all and all manner of hens, claims, and demands whatsoever, which we, or any or either of us now have, or might or could have, on or against the said and prem- ises, for work done or for materials furnished, for erecting and construct- ing the said building, or otherwise howsoever. So that he the said and his heirs and assigns, shall and may have, hold, and enjoy the said and premises, freed and discharged from all liens, claims, and demands whatsoever, which we, or any or either of us, now have, or might or could have, on or against the same, if these pres- ents had not been made. In witness whereof. We have hereunto set our hands and seals, the day of the date written opposite our respective signatures. (Date.) (Witnesses at signing.) (Signatures of claimants.) 1. A TKEATISE ON THE KULES OP ORGANIZATION AND PROCEDURE IN DELIBERATIVE ASSEMBLIES; 2. A GLOSSARY OF LAW TERMS IN COMMON USE. RULES FOR ORGANIZATION AND PROCEDURE IN DELIBERATIVE ASSEMBLIES. CHAPTER L OBiGm anh purpose of the ktji.es op okdeb. The rules of order for deliberative bodies are the results of centuries of experience in England and in this country. They grew up in the Eng- lish Parliament, and are often called rules of parliamentary order. Their purpose is to secure to all the members alike, of any body whatever that has met to debate or discuss questions, entire freedom of speech, protec- tion from interruption and from ill treatment of any kind. They deter- mine in what order motions in relation to various subjects shall be considered, and generally how the assembly may proceed to accomplish its purposes. The reasons for these rules may not always be obvious, but they are such as the experience of England for many ages, and of this country for more than a century, has proved to be on the whole beneficial. Hence, when any assembly of men come together to discuss matters of common interest, these rules are considered as applying of course. When the body is permanent, having many sessions, it is common to vote that the established rules of order shall have force in that body until changed. As these rules have no binding force on any body, it is always competent for any assembly, whether temporary or permanent, to change these rules, and adopt new ones at their pleasure. It not unfrequently happens that some member of an assembly or meeting moves to dispense with the rules, or with some special rule. In permanent bodies there are usually rules for determining how large a majority of members is requisite to suspend the rules ; as, for example, two-thirds or three-fourths. AVhere there is no such rule, a simple major- ity .may suspend the rules, or any rule. Sometimes a member will ask that a measure be adopted by general consent. The presiding officer then puts the motion, and, if no one objects, it is carried, but if any one objects, it is vtithdrawn. 42 658 A TREATISE ON In what follows, I sometimes use the word " assembly," or "house," or " casual meeting. " By the word " assembly" I refer generally to permanent bodies, as legislatures, city councils, school committees, and the like. By "casual meeting " I mean an assemblage of persons who come together for some common purpose, or moved by some common interest, to deliberate upon and take such measures as seem to them desirable, but who have no official and permanent existence as a political body. But the rules of order may be considered as applying for the most part to all these bodies or . meetings alike, so far as the character and purpose of the meeting permits. CHAPTER II. ORGANIZATION. If the body be a permanent one, it has officers who, at the first session, are chosen, or who hold office by some law or rule; and they take their places in discharge of their duties at every session. Thus, at a town meet- ing, the senior selectman presides at meetings appointed by law for the election of various public officers. At other town meetings, a presiding officer must first be chosen. The presiding officer of the body to be organized may be a speaker, moderator, chairman, or president. If an assembly of men come together who are as yet without organi- zation, some one saysaloud, " Gentlemen will please come to order; " and as soon as order and silence are obtained, he says, "Please nominate a inoderator (or chau-man)." When nominations are made, it is his duty to take the first that comes to his ear, and say, " Mr. A B is nominated as moderator; is it your pleasure that he be chosen to that office? Those who are in favor thereof will say ' aye.' " When they have voted, he says, ' " They who aM opposed thereto will say ' nay ' (or ' yes ' and ' no '; ; " and he will then announce the vote as in the affirmative or negative. If in the negative, he will call for another nomination : if in the affirmative, he will conduct the person chosen, to the chair, or will call upon him to take the chair. This person becomes then the presiding officer of the meeting. Upon taking the chair, he will proceed to complete the organization by asking for the election of a clerk, who is then chosen in the same manner as the presiding officer was. The vote may be taken by holding up of hands, or by ballot. It not unfrequently happens, in large and important meetings, that the first organization is only temporary, and that the first thing done by it is to choose a committee to report names for a permanent organization. The presiding officer usually says, "How shall this committee be chosen?" If some one replies by a motion that the committee be nominated by the chair, he puts that motion, and, if it be adopted, proceeds to nominate the committee. If the motion is to appoint them by nomination from the meet- mg, and that is carried, the chairman asks for nominations, and then puts each name as he first hears it to the vote. - If the assembly consists of delegates chosen to attend it, the next step should be for the appointment of a committee to receive and examine cre- dentials; because only those who are duly authorized should vote on the TEE RULES OF ORDER. 659 permanent organization or any subsequent questions. This corhmittee is raised either by appointment by the chair, or by nomination, as before. Strictly, this committee should make their report, and the right of those present to be there ascertained, before any thing further is done. But as the examination of credentials sometimes occupies a considerable time, it is common to proceed at once to the permanent organization and the busi- ness of the meeting. It is obvious, however, that no important questions should be passed upon until it is known who has the right to vote upon them. CHAPTER III. QUORUM, This word means, in practice, the number of persona, or the proportion of the whole number, who are necessary for the transaction of business. This number or proportion may be fixed by law; and if not so fixed, it may be determined by the assembly itself, or it may be regulated by some rec- ognized usage. If there be no rule on the subject, one more than half of the number of the members composing the assembly is the number required to transact business. No business should be transacted unless a quorum be present; and if at any time a member states that he thinks a quorum is not present, and asks for a count, such count must be taken by the presiding officer, or under his direction; and if it is found that the number is less than that requisite for a quorum, the assembly is adjourned. This is called being " counted out." CHAPTER IV. HOW QUESTIONS ARE DECIDED. The general rule is, by a majority of those present and voting. But this rule may be qualified by a specific rule of the assembly, or of the law creating the assembly, requiring a specific number or proportion in rela- tion to some special question; thus, sometimes a vote cannot be passed, as, for example, over the veto of the President of the United States, by less than two-thirds of each House. Some of our State constitutions provide that certain things shall be done by the legislature only by a certain pro- portion of all the members elected; and it is common to provide that the rules and orders shall not be changed without a consent of two-thirds, or of a still larger proportion. On the other hand, it is very common to pro- vide that one-third or one-fourth of the members voting shall suffice to require the taking of a question by yeas and nays. This is done in part to make a vote more certain ; but mainly, that all may know how each one votes. OF THE OFFICERS. The presiding officer announces the business which is before the assem- bly; and if that stands in any special order, as in the warrant for a town 660 A TREATISE ON meeting, he should announce it in that order ; indeed, the -warrant should be read. He receives all motions and propositions offered by members, and puts to vote all questions which are regularly moved or properly arise, and announces the result. If any messages or communications are sent to the assembly, he receives and announces them. He nominates committees, if this be a part of his duty by a rule, or if it be ordered. By far the most important part of his duty is to preserve the rules of order, and for this purpose to state what they are whenever a question arises. We shall presently see that there can be an appeal from his decision, and how that can be conducted ; but unless there be such appeal, his ruling must be acquiesced in and promptly obeyed. This is, indeed, a matter of the last importance. If a presiding officer does not know his duty, or neg- lects or refuses to perform it, it is impossible for order to prevail. And if he tries to perform his duty, and is not efCeotually sustained by the assem- bly, it is impossible that there should be order, or any good result of the meeting ; and the best thing it can do is to disperse itself at once. It is often a ti-ying thing, especially for those not trained in the discipline of debate, to submit to rules which seem to them merely technical, and in their effects subverssive of all free discussion. If such feelings prevail, and the meeting yields to them, or is unable to repress those who, from irritation, or mistake, or worse motives, insist upon disturbing the order of the assembly, nothing more can be done until in some way order is vindicated and restored; and if that cannot be done, it is not an organized assembly, but a mob. CHAPTER V. HOW BUSINESS MAT BE INTBOBUCEB. If the assembly be a permanent one, there is probably some record of the orders of the day; and those subjects are to be considered in the order fixed for them, unless this order is changed by a special vote. Sometimes it is voted that the orders of the day shall be taken up at a certain hour, the previous time being open for motions. Sometimes a special topic has been assigned for a special hour; and when that hour comes, the presiding officer announces that hour and that topic, or any member may^caU it up. If none of these things designate the business which must come before the assembly, some business is introduced by motion. A member, rising, addresses the presiding officer by his title, and the presiding officer, hearing him, calls to him by name, and this member then has the floor. If more members than one rise at once, the presiding officer should give the floor to him whose voice he first heard. But to prevent partiality, a member objecting that the presiding officer did not give the floor to himself or some other member who rose first, may ask for a vote upon this point; but this measure is seldom resorted to. No stranger can address the chair or the assembly ; but he may offer a petition through any member, and it is every member's duty to offer to the assembly any peti- lua iiUL,e,s UJ< ORDER. 661 tion placed in his hands by his constituents, unless it is distinctly and cer- tainly objectionable for indecency, personal scandal, or other impropriety. We have seen, in a former part of this volume, how the national consti- tution guards the right of petition. This petition, when offered, should, be received and courteously dealt with. CHAPTER VI. OF KOTIONS. It is convenient to divide motions into direct and principal motions on the one hand, and collateral or subsidiary motions on the other. Motions of the first class are those which introduce subjects or questions, or which directly qualify or dispose of them. Motions of the second class are such as to lay on the table, to postpone to a day certain, to commit, to amend, to postpone indefinitely, or a motion for the previous question. To these may be added a motion to adjourn. All of these motions wiU be sepa- rately considered. The presiding officer may always direct that a motion be reduced to writing. Of course, if he exercises this power, he must be sure to do it impartially. It is sometimes especially necessary to do this when the de- bate grows confused, as by amendment upon amendment; for if it all be trusted to memory, it may be difficult to say what the question is. Some- tunes the clerk or secretary reduces the motions to writing, as they are offered; and sometimes a member requires that a motion be reduced to writ- ing, and then it is usually doue; but, practically, this matter is left, in most cases, to the discretion of the presiding officer. CHAPTER VII. BX:SOI.UXIOKS AND OKDEBS. Evert thing is decided by an assembly by a vote ; and this, therefore, is a general term, covering aU its acts. But these acts may be divided into resolutions and orders. A resolution expresses the sentiment, belief, or wish of the assembly. An order is a command, and it may be directed to one of their own officers, or to the whole body, as when an order is made as to the time of taking a question and the like ; or to any person or body whom the assembly have a right to command. Sometimes, though not very accurately, it is expressed thus: Ordered, that so and so be requested to do a certain thing, as if the Secretary of the Commonwealth is requested to return a bill; which may always be done before it is approved. SECONDING. In practice, motions are often announced by the presiding officer without waiting for a seconding. One reason for this is, that if the presiding officer be a member of the assembly, he may second the motion himself ; and 662 A TREATISE ON his announcing it is equiralent to his seconding it; but, strictly, a motion should not be considered until it be seconded, for it ia not worth while to discuss a motion which no one in the assembly cares enough about to second; and not unfrequently, to test this, the presiding officer, if he hears no seconding, asks if that motion is seconded; and if it be not seconded, he does not put it. WITHDRAWING A MOTION. It often happens that a mover wishes to withdraw his motion; but if it has been seconded, it is in possession of the assembly, and cannot be with- drawn, excepting by their leave. But if the mover asks leave to withdraw his motion, it is usually granted to him. CHAPTER VIII. THS OBDEB OF MOTIONS. Legislative assemblies usually provide by a rule as to the order in which motions may be made. In ordinary or casual meetings, to attend to some business, or to discuss some question, no special rules of this kind are adopted. It is convenient, however, to consider the rule on this subject in force in Congress and in some of the State legislatures, as in force in any meeting. The order in this respect is frequently, that, while a question is before the meeting, only the following motions shall be received, and they in the following order; namely, to adjourn, to lie on the table, for the pre- vious question, to postpone to a day certain, to commit, to amend, to post- . pone indefinitely. These several motions will be considered presently. At present it need only be said that the above order rests on sufficient reason ; for instance, a member moves to postpone a subject indefinitely, and, as it stands, the assembly would be disposed to postpone it indefinitely, and so get rid of it. But if a member thinks he can amend the matter before the meeting, so as to make it acceptable to the meeting, he should have an opportunity of doing so; and therefore if a member moves to postpone indefinitely, and another member moves to amend, this last motion takes precedence of the former, and must be put first; then if the meeting does not like the proposed amendment, and rejects it, the motion to postpone indefinitely will be put. Similar reasons exist for the order of precedence of all these motions. We will now consider these motions in the order above stated. CHAPTER IX. MOTION TO ADJOUBN. This motion is said to be always in order. It is, however, subject to the universal rule that a motion once disposed of cannot be immediately repeated. Hence, if a motion to adjourn be negatived, some other motion THE RULES OF ORDER. 663 or measure must be passed upon in some way, and then a motion to ad- journ may be again made. Nor is it meant that any member can rise up when another is speak- ing and move to adjourn; for a member who has the floor has the right to finish his remarks, unless called to order, which call will presently be spoken of. But whenever he has closed his remarks, whoever gets the floor may always move to adjourn. This motion must be put, no other motion taking precedence of it. It is common, when a member moves to adjourn, for another member to ask him to withdraw his motion for a short time, while some other incidental matter be brought forward and disposed of ; then the motion to adjourn comes up. The adjournment ma^ be without day, which is a dissolution of the meeting, or to a time which the motion specifies. Sometimes there is a previous vote, that when the meeting ad- journs it adjourns to such a time; and sometimes there is a general rule about the adjournment, as in the daily sessions of the legislature, and an adjournment is to the time that may be fixed in either of these ways. CHAPTER X. TO ME ON THE TABIE. This motion may be made for a variety of reasons. One is, that the subject may give way to another which a member deems of more immediate importance. Another is, because a member wishes for some delay, that he or the assembly may examine further into the matter. Any thing which is laid on the table remains there, unless a motion be made to take it up. It is a general rule that a motion that any subject lie on the table is not . debatable ; and the motion is sometimes made to enable the meeting to get rid of it without further debate. It is an insufficient way, however, be- cause, if the motion be laid on the table, a motion may be made at once to take the subject from the table, or to reconsider the motion to lie on the table, and one of these motions is generally debatable. CHAPTER XI. THE PREVIOUS QUESTION. This is a motion of much importance. The history of it in parliamen- tary law is somewhat obscure; now, however, and in this country, it is a generally established rule that the motion for the previous question is not debatable, and, therefore, it forms the best, if not the only adequate, means by which an assembly can terminate a debate at once, when it has made up its mind that auyfurther debate would be useless or mischievous. The necessity that every assembly or meeting should have this power in their own hands ought to be obvious. For example, let there be a meeting of one hundred men, ninety-four of whom are in favor of a certain course, which one of them embodies in a motion, and six are opposed to this course and to the motion, —it is plam that the six, by relieving each other, mav 664 A TREATISE ON talk on indefinitely, and weary out the meeting, or consume all the time at its disposal, and so prevent any thing from being done, unless the meet- ing can terminate the debate and proceed to a vote. This it can do by means of the previous question, if a motion therefor is not debatable. But if this motion is debatable, the debate may still go on indefinitely. The way this end is accomplished is this: the previous question is, " Shall the main question be now put ? " A member moves the previous question, and it is seconded; then the presiding ofiicer must put to the meet- ing at once the question, " Shall the main question be now put ? " No debate can follow, but the meeting determines this question by vote; and if that vote is in the affirmative, the main question is then put. The main question is the question which was before the house, and was then de- bated. Sometimes the ordering of the main question is considered as cut- ting off amendments. We think it a more frequent and a better way to consider the main question as the question in the form in which it was under discussion when the previous question was ordered. The presiding officer will then first put the last amendment offered, and then the previous amendments, in their order, and then the original question as it stands, either amended or not amended. CHAPTER XII. POSTPONEMENT TO A BAT CERTAIN. This motion is frequently made for such reasons as seem good to the mover, and is carried if they seem good to the meeting. Generally, it is accompanied by the words " and shall then be taken up for debate," or some equivalent words, providing that at that time this subject shall take precedence of all others. If such a motion be passed, when that time arrives the presiding officer will announce that the time has come for con- sidering such a subject, and will state the question as then before the assembly. CHAPTER XIII. TO COMMIT. A MOTION to commit is made when the mover desires to have the sub- ject fully considered and investigated, and a report made upon it after such investigation. It is, however, often made, in fact, for other reasons : one of them is, to dispose of it for the time, and get it out of the way; or it may be to get rid of it altogether, by giving it to a committee who will never make a report of it. And sometimes it is alleged that the motion is made to get a vote upon the subject without debate; for that mutt happen if the time is limited, and the committee delay their report until tl«re is no time for debate. But these are not good reasons: the only good reason being that just above stated. A committee make their report through their chairman, or some one whom the chairman or the committee directs to make it. It is frequently THE RULES OF ORDER. 665 received by the presiding officer, as a matter of course, and without motion, and handed to the clerk or secretary. More commonly, however, a motion is made and voted upon to receive the report. A mere reception of a report discharges the committee, so that, unless authorized by a new vote, they have nothing more to do with it. But the reception of the report is no ex- pression whatever of the sentiments of the meeting in relation to it, although a refusal to receive would be a strong expression of disapprobation. Some- times the motion is that '' the i-eport be received and approved." Not unfrequently a subject is referred to a committee, with instructions to do something about it; as to report a resolution, or a bill or order, or to report at a certain time: which instructions the committee must, of course, obey. If the report has appended to it resolutions, or a bill or vote of any kind, various motions may be made in reference to these: as, if they are only resolutions, that they are adopted as the sense of the meeting; or, if they recommend any special measure, or offer a bill or specific vote, the motion may be that the resolutions, bill, or vote be placed in the orders of the day, or be assigned for consideration at a particular time; or such other disposition may be made of them as the mover wishes. The formation and duties of committees will be spoken of presently. CHAPTER XIV. MOTION TO AMEND. This is a very wide subject, because motions may be made for amend- ments of almost any kind. It is in this matter that confusion is most apt to come into the business of an assembly. Certain rules, intended to pre- vent confusion, have been generally adopted, and may be considered as established by usage, although in practice they are sometimes disregarded. The first of these is, that every motion to amend is itself subject to amend- ment; but as this, if carried too far, would lead to inextricable disorder, there is a subsidiary rule, to the effect that, if an amendment be moved, an amendment may be moved to this amendment ; but there can be no amendment offered to the second amendment. Thus, if one member offers a motion, a second member may move to amend it in a certain way; a third member may move to amend the amendment offered by the second mem- ber; but there it must stop. If a fourth member moves to amend the amendment offered by the third member, his motion would not be in order, and therefore would not be received. After the amendments offered are passed upon, then, aud only then, the fourth member may bring forth hia amendment as a new motion. A second rule is, if the assembly either adopt or reject a proposed amendment, that amendment cannot be after- wards altered or amended in any part of it. Generally the same rule applies to amendments which was stated in reference to adjournments ; namely, that if the amendment be once rejected, it cannot be immediately repeated. For, if it could be, there would be no end to a discussion of this kind. Two or three obstinate persons might, by getting the floor succes- 666 A TREATISE ON stvely, hold the attention oi the meeting to a measure which they had once rejected. But if, after an amendment is rejected, further action is had upon the principal motion, so as to give to that amendment a new aspect, or a new efiect, it may then be properly offered and considered anew. ' It may be said, also, that if a proposition consists of many parts, which succeed each other in an orderly way, amendments which relate to the earUest should be first considered. It has been said that if an amendment be made to a later part, an amendment to a former- part is not receivable. This we do not think reasonable: for it maybe that the amendment of the latter part has made the amendment of the former part necessary. Amendments may be made by altering, by striking out, by insertion, or both striking out and insertion, or by additions. If the amendment propose to strike out certain parts, and is rejected, that amendment cannot be repeated, unless other amendments have given to it a new effect ; but an amendment may be offered to strike out those parts or words together with other parts or words, for this would be a new amendment. So, if certain words be struck out, an amendment cannot be offered to restore them, unless in connection with other words which give them a new effect. So, if an amendment to insert is rejected, it cannot be repeated , unless it be with other words which suffice to make of it a different proposition. If the amendment be by striking out and inserting, any member may ask that it be divided, and the question taken first on striking out, and then on inserting. This is usually done on request ; but if it is objected to, the presiding officer will put the question to vote. The reason for dividing such a question is obvious. Members may be agreed on the expediency of striking out certain words, but there maybe much difference of opinion as to supplying their places with any words,' or with what words ; and if the motion to strike out alone prevails, then the motion to insert will be put; and any other motion may then be made in regard to the words to be inserted. Any motion which consists of different parts may be divided, and the different parts voted upon separately. Whenever a motion to amend is made, whether by striking out or in- serting, or both, or by some addition, the presiding officer should read the passage as it stands when offered, and then should read the motion to amend, and then should read the passage as it would read if the amend- ment be adopted, in order that the meeting may know clearly what the effect of their votes may be. The amendment sometimes consists in filling blanks. The propei method of doing this has been much disputed, and may not now be quite settled. The blank may require an amount inserted, or it may require a time inserted. Different members may move different amounts or differ- ent times; and the question then occurs, in wh^it order these questions shall be considered. One way would be to take the motions in the order in which they are made. So far as we know, this method is very seldom adopted. The question Ues between the largest and the smallest amounts, or the longest and the shortest times. To show the diversity on this point, it may be stated that, in the English Parliament, the rule is, lUE RULES OF ORDER. 667 that the smallest sum first be voted upon; and if that be rejected, then the larger : and the longest time first ; and if that be rejected, then the shorter. While in the United States Senate the question is first on the largest sum, and then on the smaller, and first on the longest time, and then on the shorter. Permanent assemblies -will probably make their own rule on the subject; and any casual meeting or assembly may direct which- ever method preferred. On the whole, we think that the commonest, as ■well as most convenient and reasonable rule, is that of the Senate of the United States, just stated. Then, if the question be first taken on the largest amount, those who ai'e in favor of some amount, but not of so large a one, can vote against it; and if it be negatived, the amount can be brought down by successive motions, until an amount be reached which a majority are willing to agree to. A similar remark may be made in regard to be- ginning with the longest time. CHAPTER Xy. HOW COMMITTEES AKE APPOINTED. In permanent assemblies there are always rules as to the manner of ap- pointing committees. In casual meeting.s, any method may he adopted that the meeting chooses. Sometimes they are chosen by'ballot; sometimes by a nomination from members, followed by a vote; sometimes by a nom- ination by the presiding officer, followed by a vote; and sometimes by ap- pointment by the president, without vote. If there be no general rule, and no special vote in reference to a committee, the customary way in casual meetings is for the presiding officer to nominate the members for the com- mittee; and, generally, he offers such nomination to the meeting for a vote of approval; but this he need not do, unless a vote requires it. Sometimes the presiding officer declines to nominate, and asks the meeting to appoint in some other way. Sometimes the presiding officer is authorized to ap- point the members at a future time, after the meeting is dissolved, and notify the members of the committee through the clerk or by publica- tion. Sometimes the presiding officer, or other person or persons, are added to the committee by motion. It is not regular to put any persons on the committee who are not members of the assembly or meeting. This is sometimes done by casual meetings, and is to be understood as a request to such persons to serve the meeting in that way. In appointing the committees, however this duty may be performed, it is customary to appoint the mover first on the committee, and after him, to appoint those who have manifested most interest in the question, equal- izing those in the affirmative and in the negative, as far as may be, but having the balance rather in the affirmative than in the negative. At the meetings of the committee, the common rules of order, so far as they are applicable, are usually applied. A majority of the committee constitutes a quorum, unless there be some vote or rule to the contrary. The number of the committee should be fixed by vote, if not by rule; and if various numbers are proposed, the most convenient and customary 668 A TREATISE ON method would be, as before, by beginning the vote with the largest number. When the committee are appointed, the clerk should notify the chairman, and inform him who the members are, and give him the papers refeiTed to the committee. HOTV THE COMMITTEE MEET AICD ACT. The committee is called together by the person first named upon it, after such consultation with the other members about time and place as he Bees fit. The committee, when they meet, may choose a chairman, but an almost invariable usage appoints the person first named as chairman; usually, also, if the chairman be absent or disqualified, the person second named takes the place of chairman, and so on afterwards. A committee is sometimes authorized to send for persons and papers, il the assembly appointing the committee has a right to require these; as, for example, a legislative body has. And the committee summons persona and demands papers; and if ibe persons do not come, or come but refuse to answer, or if the papers are not brought, the committee must report the fact to the assembly appointing them, who will then take such measures as they think proper. In casual meetings, as, for example, of the stock-holders of a corpora- tion, the committee is sometimes authorized and requested to obtain some desired information; and in this case, if they cannot obtain the informa- tion, they can only report the fact, leaving the body which appointed them to do what they think proper. An ordinary committee can adjourn from time to time, until their business is completed. MINOKITT KEPORTS. We have already spoken of the reports of a committee. Such a report is the report of a majority of the committee. There may also be minority reports ; but these are not reports of the committee, and are not entitled to reception or consideration, but by vote. Practically, however, they are usually received as a matter of course, if not in themselves open to decided objection. They are not usually printed with the report of the committee, unless by special vote. CHAPTER XVI. COMMITTEE OF THE WHOtE. Sometimes an assembly of a permanent character goes into committee of the whole. This may be done by a casual meeting, but little or nothing could be gained by it. The general purposes of going into committee of the whole are two; one of these is to give the presiding officer an oppor- tunity for debate, such as any other member has. This purpose is some- times accomplished more easily by the presiding ofiScer simply putting a member in his chair and taking his place among the members, and there ■I HE RULES OF ORDER. 669 joining in the debate; but regularly a presiding officer cannot take part in the debate. One reason for this rule is, that it helps him to preserve that impartiality -which is strictly indispensable. The more general purpose of going into committee of the whole is to give the opportunity for a freer discussion, because technical rules of order do not apply there with so much force. Moreover, motions may be made and questions put to the vote, and so the sentiment of the members ascertained, while the votes passed do not have the force and effect of for- mal votes of the assembly. It is a common thing for the committee thus to agree upon some measure which serves to indicate the opinion of the assembly and direct its action, although it has no binding force, and may be reversed in the assembly. While the technical rules of order are not in full force in the committee of the whole, they are in force so far as the preservation of order . requires. The previous question cannot be put in the committee of the whole, nor is there any way to stop a debate of which the committee are weary, but by a motion that the committee rise and report. The committee of the whole cannot adjourn. When it gets through its work for that session, it can only rise and report progress, and, if it sees fit, ask leave to sit again. When it rises, the chairman re- ports progress to the assembly; that is, states briefly what the committee has done or agreed upon, and asks leave for the committee to sit again, if he be so instructed. CHAPTER XVII. PKIVII,EGED QUESTIONS. That one of these which is most frequently madq use of is the right to call to. order. This is a right which every member Tias at all times; and it is the only way in which it is orderly to interrupt a person while he has the floor and is speaking. The reason for this single exception to an otherwise universal rule is, that but for this rule a member who indulges in disorderly remarks and improprieties of any kind or extent would be permitted to go on as long as he chose. Thei'efore the presiding officer or any member may, at any time, call a speaking member to order. The way of doing so is this: the member, rising, says, " I call the gentleman to order," or " I rise to order." The presiding officer replies, " Mr. A B calls Mr. C D to order ; Mr. C D will take his scat, and Mr. A B will state his point of order." The point of order being stated, the presiding officer then rules upon it. If he decides that the member speaking was out of order, he will tell him so, and point out wherein the disorder eiisted, and the member speaking will then resume his remarks; but if he persists in his disorder, the presiding officer will require him to take his seat and discontinue his speech. This is the ordinary way ; but if the presiding officer decides that the speaking member is in order, any member of the assembly may appeal from this decision, and if the presiding officer decides that the speaking member is not in order, the member himself may appeal from the decision. Of this subject of appeals from the presiding officer we shall speak pres- ently, now stating only that, after the question of order is determined, the 670 A TREATISE ON speaking member may resume his remarks and finish his speech, providing he avoids what has been decided to be disorderly. It is hardly accurate to say that a call to order is the only thing which permits the interruption of a member speaking, for another member may perceive some other cause for interruption ; as that persons are present who should not be, or that persons present are violating some order of the assembly, or that there is so much noise and confusion that the assem- bly cannot hear the person speaking. In any such case, any member is privileged to rise and call tlie speaker's attention to the disorder. Another privileged question, which does not permit the interruption of a member speaking, but which takes precedence of all ordinary ques- tions, is what may be called a personal privilege. It is when a member rises to complain of personal ilMreatment of him as a member, or of some public attack upon him, or falsification of his speech; and he in- vokes the protection of the house, or, it maybe, the opportunity of correct- ing an error or exposing a falsity. So, also, if the assembly itself has been ill-treated in regard to its rights and privileges, any member may rise and state the fact, to the end that the assembly may protect itself. CHAPTER XVIII. ORDERS OP THE DAT. In a permanent assembly there are always rules which regulate this matter. Generally the clerk, beside his daily Record, keeps in a book appropriated to that purpose a list of what are called the orders of the day. It consists of each of the subjects for future action, which he enters as they come before the assembly. Those which are assigned to a day certain are especially the order for that day. When the orders of the day are called for, they are taken up in the order in which they stand in the book, unless some special rule or motion be made changing this order. Sometimes it is ruled that, on a certain day or days, the orders shall be taken up, and all debatable matter passed over. Then if any member, as any subject is called, expresses his wish to debate it, it is passed over. All other subjects are disposed of; and in this way the orders of the day are cleared of a large portion of their topics. Sometimes some particular subject is assigned for some particular hour on a day named, and it is then the order of the day for that hour ; and when the hour arrives, if the speaker does not announce it, it is a privileged motion to call it up for consideration; and when it is disposed of, the orders of the day are resumed in the order in which they stand in the book. CHAPTER XIX, HOW THE PRESIDrNG OFFICER PUTS QUESTIONS. When a motion is made on a subject, the presiding officer announces it, and so brings it before the assembly, usually adding, " The question before THE RULES OF ORDER. 671 the assembly is so and so." Then there may follow debate; and when the debate terminates, the presiding officer, rising, says, " Is the assembly ready for the question ? " If there be no answer, or members say "yes," the speaker then puts the question, being very careful to state precisely whrt it is. He then says, " As ,many as are of opinion that this motion should be adopted " (or using some other equivalent or appropriate words) " will say ' aye ' " (or, will Uft up their hands, as the rule or usage may be, or as he thinks proper to direct in the absence of any rule or usage). He then calls for the negative vote in the same manner; and then announces what he believes to be the result. HOW THE TOTE MAT BE ASCEETAINED. If any member questions this result, he rises and says to the presiding officer, " I doubt the vote," or " Please make the vote certain." The pre- siding officer then says to the meeting, " The vote is doubted : those in favor of the motion will rise and stand in their places until they are counted." When they are counted, he will in the same manner call up those opposed to the motion; and when they are counted, he will announiie the result. If so large a number arise at once as to make the majority certain, the presiding officer may omit the call on those who hold the oppo- site view, unless that is requested. The count is usually made by the presiding officer himself, or by the clerk under his direction, if the meeting is small enough to make this couat easy and certain; otherwise, he appoints tellers. In permanent assemblii's, where members have their fixed seats, tellers are usually appointed at tlie beginning of the session, for the different divisions of the assembly. In casual meetings, the presiding officer appoints the tellers, as the count is required; that is, he designates certain persons sitting in different parts of the meeting, each to count and report the votes within the part assigned to him, which is defined as well as it may be. After the rising vote is taken, the tellers are called upon in their order each to report his number, which the clerk repeats aloud and takes down: the result is then stated. It may happen that a member doubts the accuracy of one or another of the tellers' reports; he may then move for a new count, and, if the assembly sees fit, a new count is ordered. TAKING THE QUESTION BY TEAS AND NATS. In permanent assemblies this matter is regulated by rule, so that a number much less than a majority, as one-third or one-fourth, may require the votes to be so taken. The reason is, that it is a proper protection to the rights of a minority to require that each member should declare his vote, which is then recorded. A vote is taken in this way by caUing the names from a list or roll, and it is therefore obvious that it cannot be so taken where there is no list or roll. 672 A TREATISE ON CHAPTER XX. HOW A MOTION IS MADE. A MEMBER rises and says, " Mr. Speaker " (or Mr. Moderator, or Mr. Chairman), " I offer the following motion," or, simply, " I move," &c. He then states or reads his motion. He should then stop until the presid- ing officer puts the motion, and he may then speak to it. It is considei-ed that he has the right to speak first upon it ; and courtesy usually allows" him the right of closing the debate. Every one who speaks should speak " to the question," as the phrase is, but in practice he is not required to confine himself strictly and narrowly to the exact question. He may say whatever seems to him to have a bearing upon it, though this be remote and collateral. Here a certain discretion may be used, and if there be no intentional disregard of order on the part of the speaker, the discretion should be liberal. At any time, however, the presiding officer, or any member believing the speaker to wander quite too far, may call him to order. A member who has the floor may, at the request of some other member, give way to him. If he does so at all, he does so, in strict right, altogether; that is, after the member to whom he gives way has finished, any other member may obtain the floor by rising; but commonly, if a member having the floor gives way to another member for a special purpose, courtesy gives the floor back to him after the member to whom he yielded has finished his remarks; especially is this so if the member ex- pressly gives way for a few minutes. KUIJ:S AMD USAGES OF DEBATE. There are some rules or usages in this matter of debate which it may be well to mention. One is, that a mover should not make two motions at once; for example, he should not make a motion, and add thereto, "I move that this motion be laid on the table." Regularly, he should wait until the first motion is put, and then make his second motion; but in practice, it is common to make two such motions together, if this is not objected to. Another rule intended to promote courtesy in debate is, that no mem- ber should be spoken of by name. He should be described as the member from such a place, or who spoke last, or last but one, or who made the motion, or in some such way. For a similar reason, no member having the floor can address any other member, or any person but the presiding officer. It may be considered as a general rule that no person should speak more than once to the same question; but this rule, if it be one, is com- monly disregarded in practice. But if a member who has spoken once, or oftener, gets the floor, and a member who has not spoken at all rises and desires the floor, it is common and it is right for the presiding officer to give it to him. THE RULES OF ORDER. 673 Sometimes a rule is made by the meeting that no member shall speak more than so many minutes; and a member having the floor under this rule may give up a part of his time to another member, reserving only vfhat is left. When his time expires, it is the duty of the presiding officer to call upon him to stop ; then some member may move that he have leave to go on, either indefinitely or for a certain time; and if the meeting so vote, he goes on. Sometimes the assembly or meeting adopts a rule that the debate shall stop at a certain time, and the question shall then be taken ; at which time it must be taken, unless otherwise'ordered by a new vote. Another common rule is, that the presiding officer, does not vote unless there be a tie or equal vote, — then he may vote; but if he declines to vote, the motion does not pass. Another rule, and one of much importance, is, that there should be but one question and one subject before the meeting at any one time. Every one knows how certainly, if a number of men meet and discuss a question in a conversation and without any order, the discussion will wander everywhere; new subjects coming up continually, as one or another sug- gests them, until there neither is nor can be any definite consideration of any one subject, and no rational conclusion concerning it. To make this disorder impossible is one of the main purposes of the rules of order; and it helps to accomplish this purpose if the meeting is willing to dis- pose altogether of one thing before they take up another. CHAPTER XXL APPEAXS FKOM A PRESIDING OFFICER. It is his duty to keep order, to conduct the transaction of business, and decide all questions according to the rules of order. But it is the right of any member to appeal from the decisions of the chair. When he rises and announces his appeal, the presiding officer says, " The decision of the chair is appealed from; the question before the assembly is. Shall the decision of the chair be sustained? " This question is debatable; and here the general rule is relaxed, and the presiding officer, without leaving his place, takes a part in the debate. Usually, he begins it by stating the reasons for his decision; the member who appeals follows him, with his reasons for dissenting. Then the debate goes on. When it closes, the presiding officer puts the question, " Shall the decision of the chair be sustained? " and, according to the result, he reasserts his decision or reverses it. CHAPTER XXII. BECONSIDERATION. After any vote has passed, a member may move for its reconsidera- tion. It is a general rule or usage that only one who has voted with the 43 674 A TREATISE ON majority can move for a reconsideration. The reason for this rule is, that if no one of the majority is disposed to reconsider the vote, it may be supposed that if the vote were again taken it would pass by the same ma- jority. The objection to this rule is, that after a vote has passed in a small meeting, members enough may come in ■who, had they been present and voted before, would have made a majority on the other side, and who would now reverse the vote. Practically, a member of a minority, wish- ing, for such reason, or any other good reason, to have the vote retaken, finds some member of the majority who will put the motion for him. In permanent assemblies there are generally rules on the subject of reconsid- eration ; as that it cannot be made but once, or cannot be made unless within a certain short time after the vote passed. It may happen that a member voting with the majority will move at once a reconsideration, for the very purpose of preventing a reconsideration ; for if the reconsideration is refused, which it will probably be when voted upon by the same persons, the vote is put beyond reach of reconsideration. If one who voted with the majority moves for reconsideration, intending to vote against it, and de- siring thereby only to prevent a later consideration of the question, any member may move to lay the motion for reconsideration on the table. If the assembly is willing to do this, this motion may be called up at any time afterwards. A member desiring reconsideration, but not wishing the vote taken at .the time, may move for a reconsideration, and then move that his motion be laid on the table; and if this is done he can then call it up when he will. CHAPTEE XXIII. OF A BII,Ii. A BILL, in parliamentary law, means an instrument which is intended to become a law. Before it can be this it must pass through sundry stages, which are devised to secure to the measure sufficient consideration and delay. These stages are not everywhere the same. Commonly they con- sist of three several readings, of engrossment, and of enactment. A bill may be reported by a committee, of its own accord, or because it was instructed by the assembly to report such a bill ; or any member may ask leave to ofEer a bill. When repoi'ted or offered, it is read the first time, usually without objection. It then passes into the orders of the day. When it comes up in its turn, or is called up, the presiding officer, naming the bill by its title, puts the question, " Shall this bill have its second reading?" At this time it maybe debated and negatived ; but usually it is not debated at this stage, and is sometimes read only by its title. It takes its place again in the orders of the day, and when it comes up for a third reading, it is usually debated, if at all. If it receives a third reading, the question is put (usually the next day), " Shall this biU be now engrossed? " This is seldom debated. If it is ordered to be en- THE RULES OF ORDER. 675 grossed, it then goes to the other house ; and if there it passes through the same stages, it goes to the committee of that house on engrossed bills. "When they report that it is -well and truly engrossed, it is returned to the house, and the question is there put, " Shall this bill be enacted? " If this be voted, it is sent to the senate, and if enacted there, is sent to the execu- tive for his approval and signature. There is usually a standing committee on bills in the third reading, and another on engrossed bills. The bill may be sent to either of these at the proper stage, or to any other committee, standing or special, or dis- posed of in any way, as the house shall choose. Sometimes, if there be no objection, a bill when presented is read twice (once usually by its title), and then sent to an appropriate committee, or otherwise disposed^of. After the bill has received the consent of the executive, or, if he vetoes it, is passed by the legislative body by the requisite majority over his veto, it becomes a statute or a law. CHAPTER XXIV. THE PRESERTATION OP OBDEE, It has been already said that the rules of procedure of a deliberative body are intended to preserve order, and are wisely adapted to that pur- pose. The importance of a due regard to them is obvious, for without order it is impossible that the deliberations of any meeting should be use- ful or lead to any good result. It has been also intimated that the most important thing of all is that, on the one hand, the presiding officer should know his duty, and discharge it fearlessly, promptly, and impartially ; and, on the other hand, that the assembly or meeting, of whatever kind it may be, should sustain the pre- siding officer by obedience to his ruling, and by compelling obedience on the part of the refractory and disorderly. We have already seen that the whole meeting, and every member of it, has it in their and his power to rectify any mistake or misdoing of the presiding officer in an efficient and orderly way, by an appeal properly conducted. If there be no such appeal, the only thing that remains is obedience. Undoubtedly there may be cases where the presiding officer mistakes his duty, or misuses his power; then let there be an appeal; but if there be no appeal, it must be far bet- ter to submit to the temporary and probably slight mischief resulting from his error, rather than throw the whole meeting into disorder, and cause the chaotic confusion which must ensue when the directions of him who should guide the meeting are wholly disregarded. It has been said that the rules of order are the results of centuries of experience and of general consent; and it may therefore be believed that they are as well devised as any can be, for the preservation of order. But that they sometimes fail in this — as any rules must — cannot be denied. It may happen that a number of persons who are determined to delay, obstruct, and embarrass the procedure of an assembly, may do this through 676 ^ TREATISE ON THE RULES OF ORDER. the application of the very rules of order. This practice has now grown so common and well known as to require a name for it; and a name has heen drawn from other practices, not disreputable only, but criminal. That name is filibustering. But in a treatise on the rules of order, it can- not be necessary to say more of this practice than that it is simply a com- plete perversion of order into disorder. GLOSSARY OP LAW TEEMS IN COMMOl^ USE. Abakdonment. a surrender of rights to property, or of property, by one person to another. Used in marine insurance, when the insured, hav- ing been paid as for a total loss, abandons -what is left or saved of the property to the insurers. Abate. Literally, to throw down. Applied principally to nuisances, and then means their prostration or removal. Abet. One abets another to commit a crime, by encouraging, command- ing, procuring, or counselling him ther&to. Abduction. Forcibly taking away or detaining a man's wL£e or chUd. Abscond. To go out of the jurisdiction of the courts, or conceal one's self, for the purpose of avoiding their process. Acceptance. The reception of something offered by another with the purpose of retaining it; or of an order given by another. See chapters on Agkebmbnts, Sales, and Notes and Bills. Accession. The right by which one holds all of one's own property together with all of that which has become imited to it, naturally or artificially. Accessory. In criminal law, means one who is concerned in the perpe- tration of an offence, before the fact, by procuring, counselling, or commanding another to commit it; or, after the fact, one who, knowing the crime to have been committed, relieves, comforts, or assists the criminal. Accretion. The increase of real estate by portions of soil that are added to it through the operation of natural and gradual causes. Accrue. To grow from, or to be added to, as interest accrues on the principal. Acknowledgment. The act of declaring an act or deed to be his by one who executed the same. There are various ways of making an acknowl- edgment. See chapter on Purchase and Sale of Real Propertt, and forms annexed thereto. 678 GLOSSARY. Act of God. An accident which arises from a cause that operates -with- out the interference of or aid from man. See chapter on Cakkiage OP Goods. Action. Literally, a doing of any thing. In law, it means a demand, made according to the rules of law, in a court of justice, of property, or a right to property, from some other person. The word "suit" is sometimes used in the same sense. Ad Litem. Literally, for the suit. Every, court has power to appoint a guardian for the suit for one who needs such assistance. Adjournment. Literally, putting off to another day. Generally applied to assemblies, who either adjourn without day or finally, or else to a day then or previously determined. Administrator and Administration. See chapter on Executors and Administrators. Admiralty. A court of admiralty has a large and, for some purposes, an exclusive jurisdiction over maritime causes, civil or criminal. Adultery. Sexual intercourse of a married person with a person who is not the criminal's husband or wife. Advancement. A gift from a parent to a chUd by anticipation of the whole or some part of what that child would naturally inherit on the death of the parent. Adverse Possession. Possession or enjoyment of land under such cir- cumstances as indicate that the land is claimed and enjoyed as the pos- sessor's. If such possession has been continued for twenty years, the law generally raises the presumption that it was rightful. Advocate. One who assists or makes a plea or an argument for a party to an action in court. Affinity. The connection or relation caused by marriage between each of the married persons and the kindred of the other. Affirm, Affirmation. They who have conscientious scruples against taking an oath are now generally permitted to affirm, " under the pains and penalties of perjury;" the aflBrmation being substituted for the oath. Agency. See chapter on Agency. Alias. Means, literally, otherwise, or at another time. A man is said to be named John Smith, alias Richard Koe ; and if an execution is re- turned unsatisfied, an alias execXition is issued. Alibi. Presence in a place different from that before described or alleged; as, when a man charged with an offence committed at a certain time arid place proves an alibi; that is, that he was somewhere else at that time. Alien. A person of foreign birth. Alimony. See chapter on Marriage and Divorce. Allegiance. The obligation or duty which holds a citizen or subject to his government or sovereign. See chapter on Naturalization. Alluvion. The increase of earth on the shore of the sea or the bank of a river, caused by the water, acting slowly and gradually. If the in- crease is sudden and violent, and the laijd can be traced back to that from which it is torn, it is said to belong to the original owner. GLOSSARY. 679 Ambassador. One sent abroad by some sovereign, prince, or State on public business. Public ministers are of diiferent ranks. First, am- bassador; then, minister plenipotentiary and envoy extraordinary; then, minister resident; then, charge INDEX. 737 VICE-PRESIDENT, his powers and duties, 50. VERMONT, boundaries, extent, constitution, history, and condition of, 126. the right of suffrage by the constitution of, 196. abstract of the statute law of husband and wife, and of home- stead, 233. VIRGINIA, boundaries, extent, constitution, history, and condition of, 120. the right of suffrage by the constitution of, 197. abstract of the statute law of husband and wife, and of home- stead, 233. W, WAR, articles of, 79. what these articles prohibit, and rules respecting, 80. WAR POWER, Congress has power to declare war in such form as it thinks proper, 78. WARD, law of guardian and ward, 205-207. WARRANTY, in insurance. (5ee Insukancb against Fire.) WARRANTY DEED, what it is, 279. WARS OF THIS COUNTRY, 81-83. WASHINGTON, his proclamation in New Jersey in 1777, 11. his reply to letters of John Jay,. 18. his letters to Colonel Humphries and General Knox, 20. chosen president of the convention to form a constitution, 21. his earliest service in 1754, 121. WASHINGTON, Territory of, boundaries, extent, history, and condition of, 158. city of, 16i. WESTERN TERRITORY, conflict of opinion and interest as to the ownership of the vacant lands in, 12. WEST VIRGINIA, boundaries, extent, constitution, history, and con- dition of, 154. the right of suffrage by the constitution of, 197. abstract of the statute law of husband and wife, and of home- stead, 234. WILLS, the law of, 255-265. the disposal of property by, 255. sometimes difficult to make an unobjectionable will, 255. any person of sound mind and of proper age may make a will; minors of a certain age may bequeath personal property, 255. a married woman cannot make a will, unless in relation to trust property, or when the statute law of her State gives her the power, 255. directions how to make a will, 255. 47 738 INDEX. WILLS— Continued. ■witnessing very material, and how a ■will should be witnessed, 256. words of inheritance, what they are, and effect of, 257. children not provided for in a will inherit, unless omission in- tentional, 257. a testator should name his executors, but the will is good although he does not, 257. codicils, what they are,' and how they should be made, 257. how a will should be revoked, 258. revocation of a will by the operation of law, if the testator after- wards marry and have a child, 258. forms of wills, 259-265. WISCONSIN, boundaries, extent, constitution, history, and condition of, 150. the right of suffrage by the constitution of, 197. abstract of the statute law of husband and wife, and of home- stead, 234. WINE, manufacture of, in the United States, 70. WOOLLEN GOODS, manufactures of, ia the United States, 69. WORSTED GOODS, manufactures of, in the United States, 69. WYOMING, Territory of, boundaries, extent, history, and condition of, 161. INDEX OF FORMS. AGENCY. A power of attorney, 526. A power of substitution, 527. A power of attorney in a shorter form, 527. A full power of attorney to demand and recover debts, 528. A power of attorney to sell and deliver chattels, 529. A power of attorney given by seller to buyer, 529. A power of attorney to sell shares of stock, with appointment by attorney of a substitute, 529. A power of attorney to subscribe for stock, 530. A proxy, or power of attorney to vote, 530. A proxy, revoking all former proxies, 530. A proxy, with affidavit of ownership, in use in New York, 580. A power to receive a dividend, 531. AGEEEMENTS. A general agreement, sufficient for many purposes, 429. A general agreement, as used in the Western States, 429. A general contract for mechanics' work, 431. An agreement for purchase and sale of land, in use in the Middle States, 431. An agreement for sale of land, in use in the Western States, 432. An agreement for warranty deed, in use in the Western States, 434. A contract to convey real estate, in use in the Middle States, 435. An agreement for the purchase of an estate, in use in New England, 436. An agreement for the sale of an estate by private contract, 439. An agreement to be signed by an auctioneer, after a sale by auction, 439. An agreement to be signed by the purchaser, after a sale by auction, 440. An agreement to make an assignment of a lease, 440. An agreement for making a quantity of manufactured articles, 440. An agreement between a trader and a book-keeper, 441. An agreement for damages in laying out or altering a road, 442. 740 INDEX OF FORMS. AGREEMENTS— Continued. An agreement between a person retiring from the active part of a business and another who is to conduct the same for their mutual benefit, 442. A brief building contract, 444. APPRENTICESHIP. A general indenture of apprenticeship, £08. The same in a shorter form, 209. ARBITRATION. Simple agreements to refer, 556. Arbitration bond, one or more arbitrators, 556. Award of arbitrators (or referees), 557. ASSIGNMENTS. A brief form of an assignment, to be indorsed on a note, or any similar promise or agreement, 445. A general assignment, with a power of attorney, 446. An assignment of a bond, 446. An assignment of a bond, with a power of attorney, and a cove- nant, 447.- An assignment of a judgment, in the form of an indenture, 447. An assignment of wages, with a power of attorney, 448. ATTORNEY. {See Power of Attorney.) BILL OF EXCHANGE. (See Promissory Note.) BILL OF LADING. {See Receipts and Releases.) BILL OF SALE. {See Purchase and Sale of Goods and Chat- tels.) BONDS. A simple bond, without condition, 450. A bond for payment of money, with a condition to that effect, with a power of attorney to confess judgment annexed, 451. A bond for conveyance of a parcel of land, 452. A bond for a deed of land, with acknowledgment before a notary public, 453. A bond in another form, for conveyance of land, with acknowledg- ment, 453. A bond to a corporation for payment of money due for contribution to capital stock, with a power of attorney to confess judgment, 454. {See also Assignments.) DEEDS CONVEYING OR CONCERNING REAL PROPERTY. A deed-poll of warranty, in common use in New England, 289. Deed of gift by indenture, without any warranty whatever, 290. Deed of bargain and sale without any warranty, 291. Quitclaim deed without any warranty, 292. Deed-poll of release and conveyance. Short form, 293. Deed with special warranty against the grantor only, 293. Quitclaim deed. Long form, with waiver of homestead, 295. Deed with covenant against grantor, without release of homestead or dower, 296. INDEX OF FORMS. 741 DEEDS CONVEYING REAL PROPERTY — Conftnuerf. Separate relinquishmeat of homestead and dower in land sold tinder execution, 297. Full warranty deed, by indenture, -without release of homestead or do-wer, 298. Warranty deed. Short form, with release of homestead and dower, 300. Warranty deed, with covenant against nuisances, without release of homestead or dower, 301. Bond for a deed, 303. Contract for sale of land, with penal obligation, 304. Power of attorney to sell lands, 305. Trust-deed for the benefit of a wife or some other person, 306. Trust-deed to secure payment of a note, without release of home- stead or dower, 308. ( Trust-deed to secure a debt. Fuller form , with release of dower, 309. Trust-deed to secure a note. Shorter form, with warranty and re- lease of homestead and dower, 312. Deed from trustees, 314. Deed of master in chancery, 315. Sheriff's deed on execution, in use in the Western States, 316. Sherifi's deed, in use in New England, 317. Sheriff's tax-deed, in use in the Western States, 319. Deed of executor, in use in the Eastern States, 320. Deed of executor, in use in the INIiddle States, 321. Deed of administrator of intestate, 323. Deed-poll of guardian of minor, 325. Deed of referee on foreclosure, in use in the Middle States, 326. Deed of collector of taxes, 328. Deed of assignee, in use in the Western States, 329. Acknowledgment of grantor and wife before commissioner for another State, 331. EXECUTORS AND ADMINISTRATORS. Petition to be appointed executor without further notice, 268. Executor's bond, 269. Bond of executor, who is also residuary legatee, 270. Administrator's bond, 270. Administrator's petition for leave to sell a part of the real estate, 271. Bond of administrator licensed to sell real estate, 272. Account of executor, 273. GUARANTIES. A guaranty to be indorsed on a note, 460. A guaranty of a note, on a separate paper, 460. A guaranty in another way, 460. A letter of guaranty, 461. A guaranty with collaterals, authorizing sales, 461. A guaranty with collaterals, promising additional security or author- izing sale, 481. 742 INDEX OF FORMS. HABEAS CORPUS, a writ of, 175. HUSBAND AND WIFE. An indenture to put in trust the property of an unmarried woman ,237. Another form of indenture for the same purpose, 242. INFANTS. Adult's confirmation of his promise as a minor, 205. INSURANCE AGAINST FIRE. Notice to the insurance company of a loss by fire, 594. A similar notice, with a sworn statement and certificate, 595. Assignment of a policy to be indorsed thereon, 596. Assignment of a policy by a separate instrument, 596. LEASES OF HOUSES AND LANDS OR REAL ESTATE. A short form of a lease, 383. A fuller form, with a provision for abatement of rents, 884. A short form of lease, in use in the Western States, 386. A lease of city property, in use in Chicago, 386. A lease, with provisions for taxes and assessmeijt, 389. A lease, with covenants about watei'-rate and injury by fire; in use in New York, 390. A lease by grant, in use in the Western States, 392. A lease by certificate, with surety, 398. A lease of city property, in use in St. Louis, 394. What is called a country lease, in use in the Western States, 395. A ground lease, 397. An assignment of lease, and ground-rent, 400. A lease containing chattel mortgage covenants, to secure the rent, 402. A building lease, 405. A mining lease, 406. A lease of land, supposed to contain oil, salt, or other minerals, 407. An assignment of a lease, 408. Landlord's notice to quit for non-payment of rent. Short form, 409. Landlord's notice to quit for non-payment of rent. Another form, 409. Landlord's notice to pay rent due, or quit, 410. Landlord's notice to leave at the end of the term, 410. Landlord's notice to determine a tenancy at will, 410. A receipt for rent, in use in New York, 411. LIMITED PARTNERSHIP. {See Partnership.) MECHANIC'S LIEN. A notice of a claim, to be filed with the clerk of the county, 651. A bill of particulars of a mechanic's claim, 652. A release and discharge of a mechanic's lien, 652. The same in a more specific form, 653. MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL PROPERTY. A mortgage of personal property, 374. A mortgage of personal property, with warranty, 375. A mortgage of personal property, with a power of sale, 376. Another form of a deed for the same purpose, 877. INDEX OF FORMS. 743 MORTGAGES OF LAND. Promissory note, to be secured by mortgage, 331. Bonds to be secured by a mortgage, 332. Mortgage mtliout power of sale and ■without warranty, but with release of homestead and dower, 332. Mortgage with power of sale, to secure a bond without release of dower, 334. Mortgage to secure a debt, with power of sale. Short form, 335. Mortgage to secure a debt. Fuller form, with power of sale, 336. Deed-poll of mortgage, with power to sell and insurance clause, and release of dower and homestead, 338. Mortgage by indenture, with power of sale and interest and insur- ance clause, to secure a bond, 340. Mortgage to executors, with power of sale, 342. Mortgage of a lease, 344. Mortgagee's deed under a power of sale, 345. Assignment of mortgage. Short form, 347. Assignment of mortgage, with power of attorney, 348. Assignment of mortgage by a corporation, 349. Discharge of mortgage. Short form, 350. Release and quitclaim of mortgage, as used in the Western States, 350. Discharge of mortgage, as used in the Middle States, 351. Discharge and satisfaction of a mortgage by a" corporation, 352. Release of a part of the mortgaged premises, 352. Deed extending a mortgage, 353. NATURALIZATION. Preliminary declaration of intention, 90. Certificate of the clerk to the declaration, 91. AppUcation for admission as a citizen, 91. Deposition and oath of witnesses, 92. Oath of petitioner, 92. Certificate of clerk to the oath, 93. Certificate of clerk for record, 93. NOTE OF HAND. {See Promissoky Note.) PARTNERSHIP. Articles of copartnership between two tradesmen, 546. Shorter form of articles of copartnership, 549. Certificate of a limited partnership, with acknowledgments and oath, 550. POWER OF ATTORNEY. {See Agbnct, Bonds, Assignments, and MoKTGAGES OF Land.) PROMISSORY NOTE, OR NOTE OF HAND. A common form, 482. A common form of a bill of exchange, 482. A note given for a chattel sold, with a condition preserving the ownership of the seller, 485. A judgment note, with waiver of exemption and other rights, 509. A judgment note, with waiver and a power of attorney, 510. A judgment note, with fuller waiver, and a power of attorney, 511. 744 INDEX OF FORMS. PROXY. {See Agency.) PUKCHASE AND SALE OF GOODS AND CHATTELS. Bill of sale of goods and chattels, 367. • Bill of sale of personal property, -with a condition to make it a mortgage, ■with power of sale, 368. RECEIPTS AND RELEASES. A receipt in simplest form, 469. A receipt, stating on what account the money is received, 470. A receipt, stating the purpose for which the money or articles are received, 470. A general release, 470. A mutual general release, by indenture, 471. A release from creditors to a debtor, under a composition, 471. A release of all legacies, 472. A release of a bond, it being lost, 472. A release of a judgment, 473. A release of a condition, 474. A release of a covenant contained in an indenture of lease, 474. A release in extinguishment of a power, 475. A release from a lessor to a lessee (upon his surrendering his lease), from the covenants therein, 475. A general release of dower, 476. A release of dower to the heir, 477. A release of dower, in consideration of an annuity given by will, 477. A release of dower, where the present husband of the widow joins in the deed, 478. A release of a trust, 478. A release of right to lands, 479. A release between two traders, on settling accounts, 480. A receipt, in the nature of a bill of lading, of a steam-packet com- pany, 573. Same, of an express company, 574. REFERENCE, REFEREES, AND AWARD. {See Arbitration.) WILLS. Form of a will, 259. Form of a c'odicil, 259. Form of a will with.many trusts, 260. Form of a will with other trusts and provisions, 262. (Whole number of pages, including Table of Contents, 760.)