UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A REVIEW IN LAW AND EQUITY FOR LAW STUDENTS TOGETHER WITH A SUMMARY OF THE RULES REGULATING ADMISSION TO PRACTICE THROUGHOUT THE UNITED STATES A HAND-BOOK FOR LAW STUDENTS BY GEORGE E. GARDNER OF THE MASSACHUSETTS BAR NEW YORK BAKER, VOORHIS & COMPANY r COPYRIGHT, 1894, BY BAKER, VOORHIS & COMPANY. THIS BOOK IS AFFECTIONATELY INSCRIBED TO MY FATHER PREFACE. THIS book, as its title indicates, is designed for students who are making their final preparations for admission to the Bar. Incidentally it may be found useful throughout the period of study. It aims at a clear and concise statement of the leading principles of those branches of the law which are seriously taught in the law schools of the country and which form the subjects of Bar examinations. The book is short, and designedly so. The value of a work of this character, roughly speaking, varies inversely as its length. Brevity, clearness, and simplicity have been constantly in mind in its preparation. Real Property is ordinarily the source of the student's chief difficulty, and special care has been taken to make the discussion of this subject clear by an abundant use of illustrations, which have also been freely used elsewhere. While the Statute of Uses and the treatment which it received at the hands of the courts, Fines, Common Recoveries, the Canons of Descent, and the Action of Ejectment as a means of trying a title to land, are of course largely obsolete, they, and similar subjects, are not merely a matter of curious interest to the student of legal history, but they still occupy a prominent place in the examinations for admission to the Bar in many States. Whether profitably or not, is a question with which the candidate has little concern. The difficulty in such subjects lies largely in their obscure statement, an obscurity from which even Blackstone is not wholly free. It is hoped (v) Vi PREFACE. that the illustrations herein used may be of some as- sistance in such matters. The general law of contracts, particularly that of negotiable instruments, has been stated at some length, as has also that of Personal Property, Equity, Pleading, and Evidence, and it is be- lieved that the summary of the law of Torts and Crimes is sufficient for the end in view. The book contains a chapter on Quasi-Contracts, a subject which has come to occupy a prominent place in the courses of study of many law schools, and which so far as the writer knows has hitherto received little attention in works of this class. Substantially every statement in the text has been verified by an examination of authorities which are fully cited and which ought to add substantially to the book's availability. The collection of rules regulating admis- sion to the Bar throughout the United States may be of interest to those who are uncertain as to their loca- tion in practice, and perhaps of value generally to those who are concerned in legal education. From a somewhat extended use of the material which has gone into this book with graduates of law schools and office-bred students, the writer feels safe in saying that a candidate who, after a sufficient period of study, finds himself master of its contents, will have little difficulty with any examination for admission to the Bar to which he is likely to be subjected. WORCESTER, November, 1894. CONTENTS. CHAPTER I. INTRODUCTION. Law International Civil Municipal Common Stat- utes Construction Kinds of Customs Essen- tials of 1-6 CHAPTER II. GENERAL OUTLINE. Rights Absolute Relative of Persons of Things Husband and Wife Parent and Child Guardian and Ward 7-16 CHAPTER III. THE FEUDAL SYSTEM ENGLISH TENURES. Feudal System Origin of Fealty Homage Conquest of England in 1066 Knight Service Aids Relief Primer Seisin Wardship Marriage Fines Es- cheat Free and Common Socage Gavelkind Borough English Villenage Pure Privileged Frankalmoign 17-21 CHAPTER IV. REAL PROPERTY. Lands Tenements Hereditaments Easements 22-27 CHAPTER V. FREEHOLDS OF INHERITANCE. Fees Simple Fees Tail Conditional Fees Frankmar- riage 28-30 (vii) Vlll CONTENTS. CHAPTER VI. FREEHOLDS NOT OF INHERITANCE. Estates Conventional Legal Incidents of Tenancy in Tail after possibility of issue extinct Curtesy Dower Jointure ...,.... 3*-34 CHAPTER VII. ESTATES LESS THAN FREEHOLD. Estates for Years at Will at Sufferance Incidents of. 35-37 CHAPTER VIII. ESTATES UPON CONDITION. Conditions Kinds of Void Estate upon Condition Estate with Limitation Conditional Limitation Dis- tinguishedMortgageParts of Interest of Mort- gagee Foreclosure Tacking 38-42 CHAPTER IX. REMAINDERS EXECUTORY DEVISES REVERSIONS. Remainders Kinds of Essentials of Illustrations of Rule in Shelly 's Case Perpetuities Merger Exec- utory Devise Distinguished from Remainders Illus- trations Reversions Incidents of 43-48 CHAPTER X. SEVERALTY JOINT TENANCY, ETC. Joint Tenancy Unities Tenants by the Entirety Right of Survivorship Nature of Seisin Coparcenary Distinguished from Joint Tenancy Hotchpot Ten- ancy in Common Nature of Seisin Unity of Pos- session CHAPTER XI. TITLE BY DESCENT. Title Elements of by Adverse Possession Descent Consanguinity Methods of Computing Heirs Canons of Descent Explained Illustrated CONTENTS. IX CHAPTER XIL TITLE BY PURCHASE. Purchase Methods of acquiring Title by Escheat For- feiture Occupancy Prescription Alienation 57~59 CHAPTER XIII. ALIENATION BY DEED. Deed Defined Requisites Attestation Record Parts of Warranties Covenants Measure of Damages for Breach of Covenants Avoided, how Conveyances Classes of Feoffment Gift Grant Lease Exchange Partition Release Confirma- tion Assignment Surrender Defeasance 60-68 CHAPTER XIV. USES STATUTE OF CONVEYANCES UNDER. Statutes of Mortmain their History Uses Origin their Use their Abuse Statute of Uses Purpose Defeated, how Practical Results of Conveyances arising from Statute of Uses 69-74 CHAPTER XV. ALIENATION BY MATTER OF RECORD AND SPECIAL CUSTOM. Fines Parts of Effect of Common Recovery Origi- nated, by whom as a Bar to Estates Tail Explained and Illustrated Surrender as a Means of Convey- ing Copyhold Estates 75-77 CHAPTER XVI. DEVISES LEGACIES. Statute of Wills State of Law prior to Substance of Devises Parties competent to make Execution of Acknowledgment Witnesses Revocation Lega- cies General Specific Demonstrative Lapsed Contingent Cy Pres Doctrine 78 81 CHAPTER XVII. PERSONAL PROPERTY. Chattels Real Personal Fixtures Choses in Posses- sion in Action Title by Occupancy by Acces- X CONTENTS. sion by Confusion by Intellectual Labor by For- feiture Deodands by Custom Heriots Mortua- ries Heirlooms by Judgment by Insolvency by Prerogative by Intestacy Administrators and Ex- ecutors Law governing Descent of Property Gifts Inter Vivos Causa Mortis 82-88 CHAPTER XVIII. CONTRACTS GENERAL PRINCIPLES PARTIES. Contracts Specialties Simple Parol Written Ex- press Implied Void Voidable Immoral Illegal Impolitic Fraudulent Essentials of Parties Unable to Contract Infants Assent Necessary Contracts by Mail Consideration Good Valuable Implied, when Executed Consideration Mar- riage Brocage Contracts Contracts in Restraint of Marriage, of Trade Lex Loci Contractus Lex Fori. 89-95 CHAPTER XIX. SALES. Thing sold Price Consent of Parties Defects Latent Patent Caveat Emptor Warranties Delivery Statute of Frauds Effect of Vendor's remaining in Possession Stoppage in transitu 96-100 CHAPTER XX. BAILMENTS. Depositum Mandatum Commodatum Pignus Loca- tio Innkeepers Common Carriers Liability of Begins, when Ends, when Beyond own Route for Passengers for Baggage Regulation of liabil- ity by Notice Lien of , 101-107 CHAPTER XXI. AGENCY AGENTS. Agents General Special When personally liable Agency, Contract of how created how terminated Attorneys Auctioneers Brokers Factors Del Credere Commission Master and Servant 108-113 CONTENTS. Xi CHAPTER XXII. BILLS AND NOTES. Promissory Note Essentials Form of Parties to Void, when Indorsement Kinds of Status of Party writing his name on back of note at the time it is made, without indicating in what capacity Consid- eration may be inquired into, when Usurious Gaming Overdue Note Presentment to be made, when and where Excuses for failure to present Demand, when necessary to sustain suit Statute of Limitations with reference to Demand and Sight Notes Days of Grace Proceedings on Non-payment Notice of Dishonor Non-negotiable Notes Bills of Exchange Parties Acceptance Protest Bank Checks 114-127 CHAPTER XXIII. PARTNERSHIP. Nature, Creation, and Extent of Partnership Rights and Duties of Partners in regard to each other and the public Dissolution Retiring Partner 128-132 CHAPTER XXIV. OTHER CONTRACTS MATTERS OF DEFENCE. Suretyship and Guaranty Novation Arbitration De- fences Performance Payment Accord and Satis- faction taking Negotiable Instrument in Payment Statute of Limitations Set-off Infancy Bankrupt- cy Rules for Construction of Contracts 133-136 CHAPTER XXV. QUASI-CONTRACTS. Quasi- Contracts Defined Distinguished from Contract implied in fact classified with Contracts, why Classes of Quasi-Contracts Discussed Illustrated General and Limiting Principles stated 137-148 CHAPTER XXVI. TORTS. Torts Distinguished from Contracts from Crimes must be immediate Cause of Injury Classes of Xll CONTENTS. Assault Battery False Imprisonment Injuries by Dogs and Dangerous Animals Trespass Waste Nuisance Conversion Infringement of Patents,Copy rights, Trade-marks Seduction Slander Libel Privileged Communications Malicious Prosecution. 149-159 CHAPTER XXVII. EQUITY. Equity Origin of Jurisdiction in Differences between Courts of Law and Equity Maxims Trusts Mort- gages Assignment Accident Mistake Fraud Notice Estoppel Conversion Adjustment Equi- table Liens 160-176 CHAPTER XXVIII. EQUITABLE REMEDIES. Specific Performance Injunctions Re-execution, Refor- mation, and Cancellation of Written Instruments Bills of Account of Creditors of Discovery of Partnership Quia Timet of Peace of Interpleader to take Testimony to perpetuate Testimony 177-183 CHAPTER XXIX. PLEADING. Actions Civil Criminal Legal Equitable Real Personal Mixed Commenced, how Return Day Appearance 184-190 CHAPTER XXX. THE PLEADINGS. Declaration Demurrer Pleas Dilatory Peremptory- Traverses by way of Confession and Avoidance Rebutter Surrebutter Rejoinder Surrejoinder Demand of Oyer Trial Verdict Judgment Exe- cution 191-197 CHAPTER XXXI. RULES OF PLEADING. Rules tending to the Production of Issue to the Produc- tion of a Material Issue to the Production of a Single CONTENTS. xiii and a Certain Issue to the Prevention of Obscurity and Confusion, of Prolixity and Delay Miscellaneous Rules 198-201 CHAPTER XXXII. PLEADING IN EQUITY. Bill Parts of Defence Form of Rules of Pleading with regard to true Bill with regard to the Defence Bills having special Relation to Pleading 202-205 CHAPTER XXXIII EVIDENCE. Instruments of Evidence Evidence Direct Circumstan- tial Presumptive Rules governing the Production of Testimony Ambiguities Receipts Rules gov- erning the Introduction of Parol Testimony to affect Written Instruments Hearsay Apparent Excep- tions to Rule against Real Exceptions to Rule against Admissions Confessions Evidence ex- cluded on Ground of Public Policy Witnesses Competency Examination and Rules relating thereto. 206-218 CHAPTER XXXIV. CRIMINAL LAW. Parties Incapable of committing Crime Principals Ac- cessories Treason Felony Misdemeanors Rule of Reasonable Doubt Rule against Second Trial for same Offence Specific Crimes 219-229 CHAPTER XXXV. CORPORATIONS. Corporations Classes of Created, how Powers Dis- solved, how 230-232 RULES REGULATING ADMISSION TO THE BAR IN ALL STATES AND TERRITORIES OF THE UNITED STATES 233-269 INDEX 271-299 TEXT-BOOKS CITED IN THIS WORK. Adams on Equity. Addison on Contracts. Angell & Ames on Corporations. Archbold on Civil Pleading. Bacon's Maxims. Baylies on Sureties and Guaran- tors. Benjamin on Sales. Best on Evidence. Bigelow on Estoppel. Bigelow on Torts. Bishop on Contracts. Bishop on Criminal Law. Bishop on Marriage and Divorce. Bispham on Equity. Blackstone's Commentaries. Bouvier's Law Dictionary. Browne on Statute of Frauds. Browne on Usages and Customs. Burrell's Law Dictionary. Chitty on Contracts. Chitty on Pleading. Clark on Criminal Law. Coke on Littleton. Comyn's Digest. Cooley on Torts. Daniel on Negotiable Instru- ments. Dillon on Municipal Corporations East, Pleas of the Crown. Ewell on Fixtures. Fearne on Contingent Remain- ders. Ferard on Fixtures. Gould on Pleading. Greenleaf on Evidence. Guizot's History of Civilization. Hadley's Introduction to Roman Law. Hallam's Middle Ages. Hawkins' Pleas of the Crown. Haynes' Outlines of Equity. Heard on Civil Pleading. Hilliard on Contracts. Hilliard on Torts. Jarman on Wills. Jones on Bailments. Jones on Equity. Jones on Liens. Joyce on Injunctions. Keener on Quasi-Contracts. Kent's Commentaries. Kerr on Injunctions. Lawson on Contracts. Lawson on Rights, Remedies, and Practice. Leading Cases in Equity. Leake on Contracts. Lewin on Trusts. Lieber's Legal and Political Her- meneutics. Lindley on Partnership, (xv) XVI TEXT-BOOKS CITED IN THIS WORK. May on Criminal Law. Mechem on Agency. Metcalf on Contracts. Mitford on Equity Pleading. Morawetz on Corporations. Morse on Arbitration. Odgers on Libel and Slander. Parsons on Bills and Notes. Parsons on Contracts. Parsons on Partnership. Pingreeon Mortgages. Pollock on Contracts. Pomeroy on Equity Jurispru- dence. Pomeroy on International Law. Pothier on Obligations. Preston on Estates. Randolph on Commercial Paper. Rapalje & Lawrence's Law Dic- tionary. Redfield on Wills. Rice on Evidn(je. Rorer on Railroads. Russell on ^Crimes. Schouler on Bailments. Schouler on Domestic Relations. Schouler on Personal Property. Schouler on Wills. Smith on Equity. Starkie on Evidence. Starkie on Libel and Slander. Stephen's Digest of Evidence. Stephen on Pleading. Story on Bailments. Story on Equity Jurisprudence. Story on Equity Pleading. Story on Partnership. Story on Promissory Notes. Sutherland on Statutory Con- struction. Tiedeman on Commercial Paper. Tiedeman on Equity. Tiedeman on Real Property. Touchstone. Townshend on Slander and Libel Walker's American Law. Washburn on Easements. Washburn on Real Property. Wharton on Criminal Law Wharton on Evidence. Wilberforce on Statute Law. Williams on Executors. Williams on Real Property. Wood on Master and Servant. Wood's Mayne on Damages. Wood on Nuisance. CHAPTER I. INTRODUCTION. Law, in its broadest sense, signifies a rule of action. In its legal sense it includes 1. International law. 2. The civil law. 3. Municipal law. 1. International law is that system of jurispru- dence which defines the rights and prescribes the duties of nations in their intercourse with one another. 1 2. The civil law is that system of jurisprudence which was developed by the Roman Republic and Em- pire. 2 Our completest knowledge of it is derived from the Code, Institutes, and Pandects formulated and col- lected in the reign of Justinian (A.D. 5 30-5 3 3)." The civil law forms the foundation of the jurisprudence of Europe and of the State of Louisiana. It is famous for its enlightened equity, and many of its principles have been incorporated into English and American ju- risprudence. 4 3. Municipal law is a rule of civil action prescribed by the supreme power of a State. 5 1 i Kent Comm. i; Poison, Sect, i, i. For other definitions, see Pomeroy on International Law, p. 2. 2 Bouvier, Law Diet. 3 Hadley, Introduction to Roman Law, 6; i Kent Comm. 538. 4 Lane v. Cotton, 12 Mod. 482 ; Bouvier, Law Diet., Civil Law. s i Bl. Comm. 44; i Kent Comm. 447. (I) 2 A REVIEW IN LAW AND EQUITY. Civil action is the action of an individual in his capac- ity as a member of society. Every municipal law in theory contains four parts: 1. The declaratory, in which are denned the rights to be observed or the wrongs to be avoided. 2. The directory, in which the observance of the rights and the avoidance of the wrongs are enjoined. 3. The remedial, which points out the remedy to be pursued by the injured party. 4. The vindicatory, which contains the penalty to be imposed upon the violator of the law. The municipal law of the British Empire and of the United States consists of: 1 I. The unwritten or common law. II. The statute law. I. The common law is the will of a community as expressed by the customs and usages which have gov- erned the actions of men for an indefinite period, the record of which is contained in the decisions of courts of justice and in the commentaries of men learned in the law. In the United States the common law includes that portion of the statute law of England which was in force when independence was gained, and which was applicable to our changed condition. 11 Such a statute was that of 13 Eliz. (1571) against conveyances of land in defraud of creditors. Customs are of two kinds : 1. General customs, which prevail throughout the State of whose law they are a part. 2. Particular customs, which are confined to some particular locality. 1 i Bl. Comm. 61. 9 Van Ness v. Packard, 2 Pet. 144; Heirs of Girard v. Philadelphia, 4 Rawle 333; Morgan v. King, 30 Barb. 9; Commonwealth v. Knowl- ton, 2 Mass. 534; Lorman v. Benson, 8 Mich. 18. INTRODUCTION. 3 A distinction is sometimes made between a custom and a usage, in that the former is local, while the latter is personal, and has no reference to locality. 1 The usage is the legal evidence of the existence of a custom." There are seven requisites for a good custom. It must be 1. Immemorial. 2. Continuous, i. e., the right must exist constantly, though it need not be continually exercised. 3. Peaceable. 4. Reasonable. 5. Certain. 6. Compulsory, i. e., it must be of binding obliga- tion on all upon whom it operates. 7. Consistent with other customs. II. A statute is an expression of the will of a com- munity through the medium of a lawfully constituted legislative body. 3 Statutes are divided into 1. General, or public, i. e., those which are binding on the whole community. 2. Special or private, i. e., those operating on partic- ular individuals only. The courts take judicial notice of the former ; the latter must be pleaded specially. 4 Statutes are also divided into 1. Enlarging, or enabling statutes, which increase the scope and action of the Common Law. 2. Restraining, or disabling statutes, which curtail the scope and action of the Common Law.* Statutes are further divided into i. Penal statutes, or those which impose a penalty on the wrong-doer or violator of the law. 1 Wilcox v. Wood, 9 Wend. 349. See Browne Us. and Cus. 13. Read v. Rann, 10 B. and C. 440. 3 \Vilb. St. L. 8. 4 i Bl. Comm. 36. * i Bl. Comm. 87. 4 A REVIEW IN LAW AND EQUITY. 2. Remedial statutes, which operate on the act of the wrong-doer and not upon his person or property, and which aim to place the parties in statu quo. 1 A statute making void a conveyance in defraud of creditors is a remedial statute, while a statute imposing imprisonment for larceny is a penal statute. By the INTERPRETATION of a law is meant the dis- covery of the meaning intended to be conveyed by the signs and symbols employed in its statement. 3 In the interpreting of laws the following five points are to be considered : 3 1. The words. 2. The context, i. e., one portion of a law may be resorted to for the explanation of another portion. 3. The subject-matter. The subject-matter of legis- lation often casts great light .upon the legislation in reference thereto. 4. The effects and consequences of the law. 5. The spirit and reason of the law. By the CONSTRUCTION of statutes is meant the opera- tion which statutes shall have, when their meaning is ascertained, upon the objects towards which they are directed. 4 The words interpretation and construction are often used interchangeably, but the distinction just indicated properly exists. 6 The following are the general rules for the construc- tion of statutes : i. In the construction of remedial and enlarging statutes three points are to be considered (a). The condition of the law prior to the passage of the statute. J i Bl. Comm. 88 ; Sutherland Stat. Con. 207-208. 2 Lieber, Leg. and Pol. Hermeneutics, u. 3 I Bl. Comm. 59. 4 See Lieber, Legal and Pol. Hermeneutics, 44. 5 Bouvier, Law Diet., sub. Construction. INTRODUCTION. 5 (b). The mischief. (c). The proposed remedy. 1 2. General words following particular words of enu- meration in a statute are construed to apply only to persons or things belonging to the same rank or class as that to which the persons or things particularly enumerated belong. 2 3. Penal statutes must be construed strictly, /. e., they are not to be so extended as to embrace cases or acts not clearly described by their words. 3 4. Statutes against fraud, /. e., remedial statutes, are to be construed freely.* 5. A statute must be construed if possible so as to give force arid effect to every part.* 6. A saving clause, repugnant to the body of a statute, is void. 8 7. When the common law and a statute conflict, the latter prevails, as does also the more recent of two con- flicting statutes. 7 8. If a statute repealing a prior statute is itself repealed, the first statute revives without express words to that effect. 8 This rule is changed by statute in many States. 9. Acts of a legislative body derogating from the 1 For Rules i-io, see I Bl. Comm. 87 and cases cited. 2 Hill, ex parte, 3 C. and P. 225 ; Foster v. Blount, 18 Ala. 687. 3 Hall v. State, 20 Ohio 7 ; Commonwealth v. Keniston, 5 Pick. 420 ; United States v. Wiltberger, 5 Wheat. 76. 4 Vigo's Case, 21 Wall. 648 : First School District z-.Ufford, 52 Conn. 44 ; Hudler v. Golden, 36 N. Y. 446. 5 Matter of N. Y. and Brooklyn Bridge, 72 N. Y. 527-530. 6 Att'y-Gen. v. Water Works Co., Fitzgibbons 195 ; Rex. v. Jus- tices, 2 B. & Ad. 818. 1 1n re Hickory Tree Road, 43 Pa. St. 139, 142; People v. Burt, 43 Cal. 560; Constantine v. Constantine, 6 Ves. 100. 8 People v. Davis, 61 Barb. 456 ; Commonwealth v. Churchill, 2 Met. 118. O A REVIEW IN LAW AND EQUITY. power of subsequent legislative bodies are void ; i. e., a legislature cannot adopt irrepealable legislation. 1 10. Acts of a legislative body impossible of per- formance are void;" 11. Every statute operates prospectively only, unless there is a clear intent that it shall act retrospectively. 3 12. Statutes take effect at the date of their passage unless otherwise provided. 4 1 Kelley v. Oshkosh, 14 Wis. 623; Thorpe v. R. & B. R.R. Co., 27 Vt. 149. For limitation of this principle see Dartmouth College v, Woodward, 4 Wheat. 518. 8 See Davies v. McNeeby, 5 Nev. 369. 3 i Kent Comm. 455 note; Bartruff v. Remey, 15 Iowa 257; Atkin- son v. Dunlap, 50 Me. in; Harvey v. Tyler, 2 Wall. 328, 347. 4 Matthews v. Zane, 7 Wheat. 164; Louisville v. Savings Bank, 104 U. S. 469; Baker v. Compton, 52 Texas 252. CHAPTER II. GENERAL OUTLINE. The objects with which the municipal law deals are rights and wrongs. Rights are divided into I. The rights of persons. II. The rights of things. The rights of persons are divided into absolute rights and relative rights. 1. Absolute rights are those belonging to an indi- vidual by virtue of his being a human being. 2. Relative rights are such as belong to an individual by virtue of his being a member of society. Absolute rights are divided into three general divi- sions: A. The right of personal security. B. The right of personal liberty. C '. The right of private property. The right of personal security consists in a person's legal enjoyment of life, limbs, body, health, and repu- tation. (a). Life begins with conception, so far as property rights are concerned; at birth, for purposes of homi- cide. 1 To cause the death of a child before birth is not a felonious homicide, but is known as abortion, and is commonly punishable by fine and imprisonment. (b). By limbs at common law were meant those por- tions of a man's body which were useful in either offensive or defensive fighting. 1 I Bl. Comm. 130; Co. Litt. 36; See Hull v. Hancock, 15 Pick. 255; Harper v. Archer, 4 Smedes and M. 99. (7) 8 A REVIEW IN LAW AND EQUITY. Mayhem is the destruction of any of these limbs. At common law to bite off an enemy's ear was not mayhem, but to knock out a front tooth was. (c\ The right to the legal enjoyment of the body is interfered with by assault and battery. (d). The right to the legal enjoyment of health is most generally interfered with by the maintenance of a nuisance. (e). The right to the legal enjoyment of reputation is interfered with by slander, libel, or malicious prosecution. B. The right of personal liberty consists in the power of locomotion from one place to another without restraint except by due course of law. It is interfered with by false imprisonment. C. The right of private property consists in the free use and disposition of property, as limited only by the law of the land. This right is interfered with by any unlawful injury to any form of property, whether by breach of contract or by tort. An individual can be lawfully deprived of the pos- session of his property against his will only in case of sale under legal process, or by order of court, by a sale under a power of sale in a mortgage, or by the exercise of the right of eminent domain. The latter is the right by which the State, on the ground of public expediency, can take or authorize to be taken, the private property of individuals for public use. 1 Full recompense must, however, be made to the individual whose property is thus taken.* Relative rights are chiefly those growing out of the relation of A. Husband and wife. B. Parent and child. 1 West River Bridge Co. --. Dix, 6 How. 536. 5 See U. S. Cons. 5th Amend, and State Constitutions. GENERAL OUTLINE. 9 C. Guardian and ward, D. Master and servant. Note. The principles governing the relations and liabilities of the latter will be stated under Agency. A. HUSBAND AND WIFE. Marriage is the relationship arising between a man and a woman who agree to and do live together as husband and wife, this agreement being made in the manner prescribed by law. 1 The contract to marry is the contract by which this relationship is formed. There are three essentials to every valid marriage contract. 4 (a). Willingness to contract. (fr). Ability to contract. (c). An actual contracting in the form prescribed by law. There are three disabilities." (a). A prior marriage of either of the parties, with the husband or wife still living and not divorced. A marriage formed under such circumstances is void.'' (b\ Nonage of either party. Such a marriage is void- able only, and can be ratified when the parties are of age. 6 The age at which marriage can be contracted varies in the different States. (c). Insanity or idiocy on the part of either party. Such a marriage is void* There must be actual intent on the part of the par- ties to form the contract. A marriage induced by duress or fraud is void." 1 1 See Bouv. Law Diet., sub. Marriage. See I Bish. Mar. and D., 3; also Schouler Dom. Rel. 12. * i Bl. Comm. 434 et seq. s I Bl. Comm. 436 et seq, 4 2 Kent Comm. 79, and cases cited. 5 See i Bish. Mar. and D. 150. 6 2 Kent Comm. 76. ' Schouler Dom. Rel. 23, and cases cited. IO A REVIEW IN LAW AND EQUITY. The performance of a marriage ceremony is evidence of marriage, but it is not conclusive, and it may be shown that the ceremony was performed in jest, or that it was intended for private purposes and that an actual mar- riage was not contemplated. 1 As a general rule, marriages valid in the place where formed are valid everywhere, 2 unless they are either bigamous or incestuous* The contract to marry is not within the Statute oj Frauds, and need not be in writing. 4 Marriages may be dissolved in two ways : by death and by divorce. Divorce is of two kinds: a mensa et thoro and a vinculo matrimonii. The latter works a complete dis- solution of the marriage ; the former dissolves the marriage as far as the parties themselves are concerned, but it permits neither to remarry during the life of the other. The causes for divorce, alimony, its amount, etc., are regulated by the statutes of the different States, which should be carefully examined by students preparing for the Bar. The following are the leading consequences of mar- riage at common law. They are largely changed by the statutes of the different States : (a). In law the husband and wife were one person, the existence of the wife being merged in that of her husband. As she was supposed to live under his pro- tection, she was termed femme covert, and her condi- tion during marriage coverture. (b). From the unity of existence it followed that husband and wife could make no control whatever 1 Clark v. Field, 13 Vt. 460. 2 2 Kent Comm. 91, and cases cited. 8 Id. 93; see i Bish. Mar. and D. 372, and cases cited. 4 Browne on Stat. of Frauds, 2153. GENERAL OUTLINE. II with each other. A wife could, however, act as attorney for the husband, and the latter could make a valid will in favor of the former. 1 (c). The husband is liable for necessaries furnished to the wife when she lives with him as his wife, and when he drives her from his home and refuses to support her. He is not liable for necessaries furnished to her when she elopes and lives in adultery, if the fact of the elope- ment be known to the person furnishing the necessa- ries ; 2 nor if she is living apart from him under an agreement for separate maintenance, and he, in accord- ance with the agreement, furnishes her an amount sufficient to provide her with the necessaries suitable to her station, this being known to the party with whom she deals. 3 This is the prevailing law at present. Money furnished by a third party to a wife, though expended for necessaries, cannot be recovered from her husband. 4 (d). At marriage the husband gained an absolute title to all the wife's personal property in possession, with the right to reduce her choses in action to posses- sion, and to have curtcsy in her estates of inheritance. (e). The wife gained the right to dower in her hus- band's estates of inheritance, and on his death retained her personal ornaments, jewels, etc., as against her husband's personal representatives. These were called her paraphernalia." (/). On marriage the husband became liable for the wife's debts contracted before marriage, and for her torts committed during marriage." If the debts of the wife were not paid before her death, however, the hus- band's liability ceased.' 1 I Bl. Comm. 442. 2 I Bl. Comm. 443; see note and cases cited. 3 4 Camp. 70; 4 B. and A. 254. 4 i Salk. 387. 5 2 Bl. Comm. 435. 6 2 Kent Comm. 143, 149. 1 Lamb v. Belden, 16 Ark. 539; Cole v. Shurtleff, 41 Vt. 311. 12 A REVIEW IN LAW AND EQUITY. The relation of husband and wife, and the duties arising from that relation, are regulated by statute in the different States. These statutes should be consulted by students. B. PARENT AND CHILD. Children are of two kinds : (a}. Legitimate, or those born in lawful wedlock or within a competent time thereafter. (b). Illegitimate, or children born out of wedlock. By the Civil, but not by the Common law, the sub- sequent marriage of the parents legitimatized children born prior to the marriage, and this principle has been generally adopted in the United States. 1 At common law an illegitimate child could by no possibility inherit any property, as he was regarded as the son of nobody. In many of the States an illegitimate child inherits from his mother equally with other children." The mother of such a child is entitled to its custody in preference to the putative father, while in the case of legitimate children the father is entitled to their cus- tody, unless a court decrees otherwise. 3 The duties owed by parents to legitimate children are three. 4 (a). Maintenance. (b\ Protection. (c). Education. These duties cease on the child's coming of age. At common law a man is not obliged to support the children of his wife by a former marriage. 5 1 i Bl. Comm. 454, see note ; Schouler Dom. Rel. 226. See Miller v. Miller. 91 N. Y. 315. 2 See 2 Kent Comm. 212, 213. 3 5 East. 221 ; 7 East. 579. 4 i Bl. Comm. 447 ; 2 Kent Comm. 189 ; Schouler Dom. Rel. $5 233. 5 Williams v. Hutchinson, 3 N. Y. 312 ; Worcester v. Marchant, 14 Pick. 510 ; Schouler on Dom. Rel. 237, and cases cited. GENERAL OUTLINE. 13 If, however, he receives them into his home, he is re- garded as having adopted them as his children. 1 There are two rules as to the parent's liability for necessaries furnished to a child. 1. It is held that a third party furnishing necessaries to a child can recover from the parent by merely prov- ing that the articles were purchased and that they were necessary? 2. It is held that the party furnishing the articles must show in addition a promise on the part of the parent, either express or implied, to pay for the articles. Where this doctrine is held the courts seize upon slight circumstances from which to infer the promise, such as seeing the child in possession of the articles and allow- ing him to keep and use them." By necessaries are meant such articles as are suitable to the social condition and rank in life of him by whom they are used. The term is purely relative.* The question as to what are necessaries is for the court ; as to whether particular necessaries were furnished, and the proper amount, for the jury.* Whether an article is a necessary is determined, not by reference to the article, but by reference to the need of the person for that article. Clothing is abstractly a necessary, but in a particular case a person might not need a suit of clothes. Here the garments would not be necessaries. Education is classed among the necessaries." 1 Sharp v. Cropsey, n Barb. 224 ; Luney v. Vantine, 40 Vt. 501. 2 Reynolds v. Sweetser, 15 Gray 78 ; Weeks v. Merrow, 40 Me. 151 ; Filler v. Filler, 33 Pa. St. 50. 3 Mortimore v. Wright, 6 W. & W. 482 ; Gordon i\ Potter, 17 Vt. 350 ; Raymond v. Loyl, 10 Barb. 483 ; Kelley v. Davis, 49 N. H. 187. This doctrine is much the stronger of the two, and the weight of authority is greatly in its favor. See 2 Kent. Comm. 192 ; Schouler Dom. Rel. 241, and cases cited. 4 Smith Contr. 269 ; Schouler Dom. Rel. 61, and cases cited. s Parke v. Kleeber, 37 Pa. St. 25 ; Raynes v. Bennett, 114 Mass 424. 6 2 Kent Comm. 192 ; Schouler Dom. Rel. gg 411, 412. 14 A REVIEW IN LAW AND EQUITY. Torts. A father is not liable in damages for the torts of his child, provided they are committed without his knowledge or consent and when the child is not in his employment. 1 A parent is justified in making an assault and battery for the protection of the person of a child. 2 The parent is entitled to the wages earned by the child ; 3 but if an employer has been accustomed to pay the wages to the child without remonstrance on the part of the parent, the consent of the latter to such payment will be presumed. 4 If the parent has emancipated the child, the latter is entitled to his wages, and can recover them for his own use. 6 At common law the child owed no legal duties to the parent. In some States the child is, by statute, bound to support the parent under certain circum- stances. C. GUARDIAN AND WARD. There are two kinds of guardianship. (a). Guardianship by the common law. (b). Guardianship by statute. Guardianship by the common law was of three kinds : 1. Guardianship by nature, which belonged to the father, and on his death to the mother, lasted till the child reached the age of twenty-one, and applied only to the person. Strictly this form of guardianship extended only to the heir apparent. 2. Guardianship by nurture, belonging first to father, then to mother, extending only to the age of fourteen. 1 Schouler Dom. Rel. 263. 2 I Bl. Comm. 450. 3 i Bl. Comm. 453 ; Schouler Dom. Rel. 252, and cases cited. 4 Campbell v. Cooper, 34 N. H. 49 ; Armstrong v. McDonald, 10 Barb. 300 : Atkins ?>. Sherbino, 58 Vt. 248. 6 See Schouler Dom. Rel. 268, and cases cited. GENERAL OUTLINE. 15 Strictly this form of guardianship applied only to the younger children who were not heirs apparent. 3. Guardianship in socage, which applied only to lands acquired by the infant by descent, which guardianship was given to the next of kin, who could not possibly inherit from the infant i. e., the uncle on the mother's side, when the property descended to the infant from the father. This guardianship lasted to the age of fourteen, when the infant had the right of choosing a guardian. 1 Guardianship by statute is of two kinds : 1. When in accordance with the provisions of a stat- ute a guardian is appointed by the court. 2. Testamentary guardianship, when by testament a parent appoints a guardian for a child, as he was per- mitted to do by the statute of 12 Charles II. (1660), and as he may now do by statute in this country. The common law guardianships are now practically obsolete. The duties of a guardian to the ward are those of parent to child, and in addition he has control of the infant's property and is held rigidly to account for his management thereof. 2 The general rule is that the guardian is held to abso- lute good faith in all his dealings with his ward, and that in his treatment of the ward's property he shall exercise all the care and circumspection of a prudent man in the management of his own concerns. 3 He is permitted to make no profit from the estate of the ward, though the courts allow a reasonable recompense for his services out of the estate. He is not permitted to speculate with the funds of the ward, even in good faith and for the benefit of the ward's estate, and is personally liable, together with his bondsmen, for any 1 See 2 Kent Comm. 220-222. ? See Schouler Dom. Rel. 320. 3 Bispham Eq. 234 ; Schouler Dom. Rel. 345- l6 A REVIEW IX LAW AND EQUITY. loss arising from such speculation. 1 The guardian's ac- counts are regulated by the statutes of the different States. When an infant is sued, a guardian ad litem is ap- pointed by the court, generally the infant's father, or the statutory guardian. When an infant brings suit, it is brought in the name of the next friend (prochien ami), who is generally either a parent or guardian. 1 2 Kent Comm. 329 et seq. ; 2 Comyns 230. CHAPTER III. THE FEUDAL SYSTEM ENGLISH TENURES. THE Feudal system was developed on the continent of Europe, in the centuries succeeding the downfall of the Western Roman Empire, by the Celtic and Teu- tonic tribes, whose kingdoms were built upon the ruins of that empire. Its essential feature, from which its chief peculiarities sprang, was the holding of land by one person, called the tenant, from another, called the lord. A feudal chief, upon conquering the territory of a hostile tribe, distributed the land among his followers, to be held on various conditions. Originally these lands were held at the will of the lord, and the grant could be revoked at his pleasure. Then in time the estates came to be held for the life of the tenant, upon his conforming to the conditions of the grant, and finally they became hereditary. The ceremony by which a tenant became possessed of an estate was called investiture, and when this occurred the tenant took the oath of fealty or profession of faith to the lord, and also did homage, by which he professed that he became the man i. e., the follower of his lord. Fealty and homage were the two prerequisites to a tenant's entering an estate of a lord. 1 The system was introduced into England at the time of the Conquest by William, A.D. 1066. Under this system all property other than personal was held of some superior on condition of rendering 1 See I Guizot His. of Civ. 63 et seq. ; Hallam's Middle Ages. (17) 1 8 A REVIEW IN LAW AND EQUITY. certain services. The thing thus held was called a tenement or feud; the manner of holding, a tenure; the person who held, a tenant or vassal. The king was called the lord paramount ; those who held immedi- ately of the king were called tenants in capite ; those who held of a superior and were also themselves lords of inferiors were called mesne or middle lords ; while the lowest tenant, who had no one holding of him, was called the tenant paravail. Before the introduction of the feudal system lands held of no superior were called allodial, and this is the form which ownership of land practically takes in the United States. 1 Under the feudal system there grew up in England four principal forms of tenure, distinguished by their character in respect to quantity and quality of the service due from the tenant to the lord. 2 I. Knight service, in which the service \vasfree, i. e., such as was becoming a free man, and uncertain. This tenure prevailed most extensively until it was abolished by the statute of 12 Charles II. (1660) There were seven incidents, or duties due from the tenant to the lord, connected with knight service. 3 1. Aids, which were principally three: A. To ransom the lord's person when captured. B. To furnish money for knighting his eldest son. C. To furnish money for a marriage portion for his eldest daughter. 2. Relief, a certain amount which the heir was com- pelled to pay the lord before entering on his inherit- ance. 3. Primer seisin, a kind of relief due from the heirs of tenants in capite, consisting of one year's value of the estate if entered upon immediately, and of six 1 3 Kent Comm. 513. 2 2 Bl. Comm. 60. 3 2 Bl. Comm. 62; 3 Kent Comm. 504. THE FEUDAL SYSTEM ENGLISH TENURES. 19 months' value if the lands were in reversion, expectant upon a life estate. 4. Wardship, or right of having the custody of the person and lands of the heir without rendering an account for the profits, if the heir, being a male, was under twenty-one, or, being a female, under fourteen. In the latter case the guardianship extended to the age of sixteen. 5. Marriage, or the right of giving an infant ward in marriage, and if he or she declined the proffered match, of deducting from the ward's estate the amount which the suitor offered the lord forgiving the ward in marriage. In case of elopement and marriage the ward forfeited to the lord double the value of the marriage, as assessed by a jury. 6. Fines, or the right to exact from the tenant a certain sum for permission to alienate his feud. The lord could not alienate his seignory without con- sent of the vassal, and this consent was called attornment. By magna charta and the statute quia emptores, 18 Edw. I. (1292), tenants were able to alienate the whole of their estate, to be holden of the same lord from whom they themselves held it. 7. Escheat, by which, on the extinction of inherit- able blood on the part of the vassal, the estate es- cheated or reverted to the lord. Tenure by grand sergcanty was a species of knight service by which the tenant was bound, instead of rendering general military service, to do some special act, as carrying the banner or sword of his lord. II. Free and Common Socage, in which the service was free* but certain. In the certainty of the service lay its superiority over knight service. Free and com- mon socage includes tenure by petit sergeanty, gavel- kind, and borough English. 2O A REVIEW IN LAW AND EQUITY. In petit sergeanty the service consisted in rendering to the lord annually some small implement of war. Gavelkind prevailed most extensively in the county of Kent, and its four marked peculiarities show it to be a tenure existing prior to the conquest. 1 1. Lands held in gavelkind descended to all tJie sons alike. 2. Lands could be devised prior to the Statute of Wills. 3. The holder could alienate by feoffment at the age of fifteen. 4. The estate did not escheat in case of attainder for treason. Borough English was free and common socage as existing in certain boroughs and towns. Its distin- guishing feature was that the land so held descended to the youngest son. 2 III. Pure villenage, in which the service was base and uncertain. Copyhold estates developed from this form of tenure. 3 In pure villenage the tenants were barely tenants at will, holding merely by the sufferance of the lord, who was in many cases their owner. In process of time, as son succeeded father, the right of the tenants strength- ened and the estates became in some cases estates for life, and in others estates of inheritance. They were still regarded as estates held at the will of the lord, but that will was not the arbitrary caprice of any indi- vidual lord, but it was the will of the lord as deter- mined by the immemorial custom of the manor, a manor being a large estate held by a powerful lord, some of whose land was held in knight service, other in socage, etc. This custom of the manor was determined by the 1 2 Bl. Comm. 84. 2 2 Bl. Comm. 83. 8 Id. qoetsey. THE FEUDAL SYSTEM ENGLISH TENURES. 21 copy of court roll, kept in the court of the manor in which the land held in copyhold lay. If this record showed that heir had succeeded ancestor immemori- ally, this succession was presumed to be the will of the lord, and the estate was thus practically one of inheritance. 1 The incidents of the copyhold tenure were : 1. Fealty. 2. Services. 3. Relief. 4. Escheat. 5. Her lots, or the right which the lord had, on the death of his tenant, to the tenant's best beast or other personal property. IV. Privileged villenage, in which the services were base but certain, out of which grew the tenure in Ancient Demesne? This applied to certain lands which were actually in the hands of the crown in the time of William the Conqueror, or Edward the Confessor, and which were granted to be held on condition of services which, though base, were certain. V. A fifth form of tenure also existed, frankal- moign, under which religious corporations held lands of the donor to them and their successors forever. 3 The services of this tenure were not strictly defined, but were ordinarily to pray for the soul of the deceased and others of like nature. By the statute of 12 Charles II. (1660) all forms of tenure were changed to FREE AND COMMON SOCAGE, with the exception of estates held by copyliold, frank- almoign, and grand sergeanty* 1 2 Bl. Comm. 98. Id. 98. 3 2 Bl. Comm. 101. * Id. 77. CHAPTER IV. REAL PROPERTY. Property is of three kinds, REAL, PERSONAL, and MIXED. Real property is anything of a fixed, immovable, and permanent nature. It is divided into three classes: lands, tenements, and hereditaments. 1 I. Land comprehends all things of a permanent, immovable, and substantial nature. It has an indef- inite extent upward and downward from the surface of the earth. It also includes all things attached perma- nently to the soil. 2 In conveying land covered by water, it should be described as such. A grant of a body of water conveys a right of fishery only. The word land is construed broadly, while other words sometimes used in conveying land, as messuage, toft, etc., are construed strictly? II. Tenement is a broader term than land, and in- cludes anything which can be held by any species of tenure. It applies to many incorporeal hereditaments, as advowsons, ways. III. Hereditament is a broader term than either land or tenement, and includes anything which may be in- herited, such as heirlooms or title-deeds. 4 Hereditaments are of two kinds corporeal and in- corporeal. The term corporeal hereditaments is nearly synonymous with land. 6 1 2 Bl. Comm. 14; 3 Kent Comm. 401. 2 Co. Litt. 43. 3 2B1. Comm. 15 etseg.; 3 Kent 401 etseq.; Tiedeman Real Prop. 2. 4 2 Bl. Comm. 17; Tiedeman Real Prop. n. 5 2 Bl. Comm. 17; 3 Kent Comm. 401. (22) REAL PROPERTY. 23 Incorporeal hereditaments are rights issuing out of a thing corporate, whether real or personal, or concern- ing or exercisable within the same. They are of ten kinds. 1 1. Advowsons, or the right of filling a vacancy in some church or ecclesiastical benefice. 2. Tithes, or the right of exacting from tenants a tenth of the increase arising from lands, the stock upon lands, and from their own personal labor. 3. Common, or the profit which one man has in the lands of another. The four ordinary commons were: (a). Pasturage, or the right of feeding one's beasts on another's land. This was of four kinds : appendant, when the tenants of a lord pastured their cattle on land belonging to their lord ; appurtenant, when the ten- ants pastured their cattle on the land of a lord other than their own ; because of vicinage, when the inhabitants of two villages mutually intercommoned through ignorance of the true boundary ; in gross, which was a right belonging to some person and his heirs, and involving no ownership of land by such person. (b). Piscary, or the right of fishing in water belong- ing to another. (c\ Turbary, or the right of digging turf from the land of another. (d\ Estovers, or the right of taking wood used for fuel, the repair of buildings, the implements of hus- bandry, or fences, from land belonging to another. 4 4. Ways, or the right of going over another man's land. 5. Offices, or the right to exercise some public or private employment, such as the office of keeping the crown jewels. This is an instance of an incorporeal hereditament issuing out of personal property. 1 2 Bl. Comm. IQ et seq. * See Livingston v. Ten Broek, 16 Johns. 14. 24 A REVIEW IN LAW AND EQUITY. 6. Dignities, or the right to use some title of no- bility. 7. Franchises, or rights granted by the supreme power of the State to a person or persons, which could not be claimed as a matter of right. 8. Corodies, or the right to receive allotments of provisions for one's maintenance. When a definite sum of money was substituted the term pension was used. 9. Annuities, or a yearly sum granted by one to another, and chargeable only on the person of the grantor. This does not mean that in event of non- payment the annuitant cannot sue and attach the real property of the grantor, but simply that he cannot look to any particular piece of land to satisfy his claim, as can be done in the case of 10. Rents, which are definite profits issuing yearly out of lands and tenements. At common law there were three common forms of rent : (a). Rent service, which had some corporal service incident to it, such as ploughing the lord's land. In this rent the landlord, in case of non-payment, had the right of distress i. e., of entering on the land and taking any personal property which he could find for the satisfaction of his claim no special clause reserving this right being needed in the lease. (b}. Rent charge, where the owner of the rent had no future interest or reversion in the land, as where A conveys to B in fee simple, reserving to himself and his heirs a certain rent payable out of the lands so conveyed. This is called a rent charge because in the deed creating it there is a clause giving the right of distress. (c}. Rent seek is a rent reserved by deed, without any clause of distress. REAL PROPERTY. 25 EASEMENTS. Most of the incorporeal hereditaments are obsolete. In modern law easements correspond to incorporeal hereditaments in a general way. An easement is the right by which the owner of one tenement, called the dominant tenement, can compel the owner of another, called the servient tenement, to permit something to be done, or to refrain from doing something, which, as owner of his tenement, he would otherwise have been entitled to restrain or to do. : It differs from a com- mon, which is sometimes called a profit a prendre, in that the latter always involves the taking of some ma- terial thing from the land of another. 2 An easement may be created in three ways : (a). By grant. (b\ By prescription, which always implies a grant, (c). By necessity, as when A conveys to B land entirely surrounded by other land of A. Here B has a right of way over the land of A. 3 A license is an authority to do an act or a series of acts upon another's land, without possessing any estate therein. 4 An easement differs from a license in three particulars : (a). An easement is an interest in land ; a license cre- ates no interest. (b). An easement cannot, therefore, be created byparol, as coming within the statute of frauds ; a license can. (c). An easement is irrevocable, but a license can be revoked by the licensor when its revocation would do no injury to the licensee, the lack of consideration be- ing the ground of the right of revocation. 6 1 2 Bl. Comm. 360. (Cooley) and cases cited. See Bouvier, Law Diet., sub. Easements, and cases cited. * 2 Wash. R. P., Bk. II. *26. 3 Wash. Easem. 3, 4; 3 Kent Comm. 419 (note I3th ed.). 4 i Wash. R. P. *3Q8 ; 3 Kent Comm. 452. 5 Wash. Easm. *5. 26 A REVIEW IN LAW AND EQUITY. The following are the most important easements : the right of way, light and air, water, lateral support, and party walls} 1. There are two kinds of ways, public and private. A public way may be established in two ways : (a). By dedication by the owner, followed by accept- ance by the public through the acts of the proper authorities, (fr). By an appropriation of the land for the public use by the right of eminent domain? As a general rule, the owner of land bounded on a public way has a fee to the centre of the street, subject to the public's easement of a right of passage over the way. 3 A private way is either a right in gross i. e., a per- sonal right or it is appurtenant to an estate and passes with the conveyance of the estate. A right of way does not of itself involve the right to have the way kept in repair, and trespass on other land of the owner of the servient estate when the way is out of repair is permissible only when there is a right on the part of the owner of the dominant estate to have the way kept in repair. 4 2. The easements of lig/u and air are the rights to enjoy light and air coming laterally across the land of an adjacent owner, without interference on his part by the erection of buildings, etc. These easements are not generally recognized in this country, though they may be acquired by express grant. 6 3. When land is bounded on a non-navigable stream, the title of the owner, unless expressly limited other- wise, extends to the middle of tlie stream, and conse- quently he has an easement in the water i. e., a right ' 2 Wash. R. P., Book II. *2$. * z Bl. Comm. 35 note (Cooley). 3 3 Wash. R. P. *635 ; Gardiner -/. Tisdale, 2 Wis. 153. 4 Washburn Easm. *IQ7 et seq., *s64. 5 2 Wash. R. P., Bk. II. *62. REAL PROPERTY. 2/ to use the water in any way which does not interfere with the rights of riparian owners lower down. Dams may be built, provided they cause no permanent dimi- nution in the volume of the stream. The water may be turned aside for manufacturing purposes, provided it be returned to the channel of the stream in such a condition and in such an amount as not to affect the rights of other riparian owners. 1 Xo right of action arises from any change in subter- ranean watercourses affecting springs or wells on one man's land and caused by excavations on the land of another. One man has no right by the artificial arrangement of the surface of the soil to cause surface water to flow on the land of another, but there is no action for any damage arising from the flow of such surface water ac- cording to the natural configuration of the soil. 2 4. The easement of support is the right to the natu- ral support of one's land by the adjacent land of an- other. There is no easement for the support of build- ings, though as a general rule such an easement can be acquired by prescription. 3 5. In a party wall the rule in regard to ownership is that each party owns in fee to the middle of the wall, with an easement for support in the other half, when the wall stands partly on the land of each. If a party wall needs repair, the owner repairing can recover a pro- portionate part of the expense from his neighbor, upon showing that there was need of repair. If one house has been supported by beams resting in the house of an- other, an easement for the support of the beams may be acquired by prescription. 4 1 3 Kent Comm. 439 et scq.\ 2 Wash. R. P., Bk II. *&4. 2 Wash. R. P., Bk. II. *6g, and cases cited. 3 Id. *74, *77. 4 Id. *48. CHAPTER V. FREEHOLDS OF INHERITANCE. THE word ESTATE denotes an interest in lands, tene- ments, or hereditaments. 1 A freehold is an estate of inheritance, or for life. It is also defined as an estate requiring livery of seisin for its creation. 2 Seisin, though often equivalent to pos- session, is not synonymous with it, but signifies the possession or right of possession, immediate or expect- ant, of a freeholder* Estates of inheritance are divided into four classes estates in fee simple, base or qualified fees, conditional fees, and fees tail. 1. An estate in fee simple is the largest estate that can exist in lands, tenements, or hereditaments. It is an estate conveyed to a man and his heirs forever. At common law the word heirs was necessary to create an estate in fee simple by deed, and no other term could be used in its stead. This rs still the rule in many States. There were, however, five exceptions to the rule: (i) in devises; (2) in grants to corporations where the word successors was used instead of heirs ; (3) in fines and common recoveries ; (4) in writs of nobility ; (5) in grants to the king* 2. A base or qualified fee is one which has some qual- ification annexed thereto, and which must terminate 1 2 Bl. Comm. 103; i Preston on Estates, 20. 8 4 Kent Comm. 24; 2 Bl. Comm. 104. 3 This definition is submitted as accurate, though, so far as the writer knows, it has never been given in precisely this form. 4 2 Bl. Comm, 108. (28) FREEHOLDS OF INHERITANCE. 29 whenever the qualification terminates as a grant to A and his heirs, tenants of the manor of Dale. 3. A conditional fee was a fee restrained to some par- ticular heirs, as to the heirs of a man's body. It was so called because of the implied condition that if the grantee died without the specified heirs, the estate should revert to the grantor. Upon the birth of the specified issue, the courts, eager to encourage freedom in the alienation of estates, construed the estate as be- ing an absolute fee simple in three respects : (i) for the purpose of alienation, so as to bar heirs and rever- sioner ; (2) for the purpose of forfeiture for treason ; (3) for the purpose of charging the estate with incum- brances. As a result, upon the birth of issue, the grantee alienated the estate to some person who at once recon- veyed it to the grantee, thereby vesting in him an es- tate in fee simple and defeating the intention of the grantor. 1 Through the influence of the nobility, who wished, by tying up estates in their own families, to prevent free alienation, the statute de donis conditionalibus was passed (13 Edw. I.), which, operating on conditional fees, produced 4. Estates tail. This statute enacted that thence- forth the will of the donor be observed in conditional fees, and that the tenements given to a man and the heirs of his body should in any event go to the issue, if there were any ; otherwise, that they should revert to the donor. This statute operated for two hundred years, until in the twelfth year of Edward IV., in Tal- tarums case? a common recovery was held to be a bar to an estate tail. Estates tail are of no practical consequence in this 1 2 Bl. Comm. no et seq. \ 4 Kent Comm. n. * Year Book 12 Edw. IV. 14, 19; see 4 Kent Comm. 13. 30 A REVIEW IN LAW AND EQUITY. country, where, as a rule, they can be barred by a con- veyance in fee. 1 In the creation of an estate tail the word heirs was necessary, and also the expression of the body, or some other words of procreation. Estates tail are of two kinds: (i). General, as to a man and the heirs of his body. (2). Special, as to a man and some particular heirs of his body, as to those from his wife A begotten. Estates tail general are of two kinds: (i). Male, as to a man and the heirs male of his body ; (2). Female, as to a man and the heirs female of his body. Estates tail special are of two kinds : (i). Male, as to a man and the heirs male of his body by his wife A be- gotten ; (2). Female, as to a man and the heirs female of his body by his wife A begotten. 8 Frankmarriage was a species of estate tail, where one man conveyed tenements to another upon the lat- ter's marriage with the former's daughter or cousin. 3 The word frankmarriage was the operative word in the conveyance, and created in the grantee an estate tail special, without words of procreation. There are four incidents to estates tail: (i) The tenant in tail could commit waste; (2) curtesy ; (3) dower ; (4) they could be barred by fines, common re- coveries, and by a lineal warranty descending with as- sets to heirs. 1 See 4 Kent Comm. 14; i Wash. R. P. *&4, note (sth ed.). 2 2 Bl. Comm. 113 ft seq. 8 Id. 115. CHAPTER VI. FREEHOLDS NOT OF INHERITANCE. Freehold estates not of inheritance are of two classes conventional, or those created by act of the parties ; legal, or those created by law. 1 Conventional estates are divided into two classes those to be held by the lessee during his own life, and those to be held by the lessee during the life of an- other. In the second class, the lessee was called the tenant pur attire vie, and the person during whose life the estate was to be held the cestui que vie. If the tenant died before the cestui que vie, the estate could not go to his heirs, not being an estate of inheritance ; it could not go to the personal representatives, as it was not a chattel interest. Therefore, by the ancient common law the first taker had the right to hold the estate during the remainder of the life of the cestui que vie. This was the only instance at common law where a title to real property could be acquired by occupancy. If the grant was to a man and his heirs, to hold dur- ing the life of another, then, in event of the tenant's dying before the cestui que vie, the heirs held as special occupants. The right of occupancy was destroyed by statute 29 Charles II., which enacted that where there was no special occupant, the tenant per autre vie could devise the estate ; otherwise that it should go to his personal representatives. 2 1 2 Bl. Comm. 119; i Wash. R. P., p. 120 (sth ed.). 8 2 Bl. Comm. 257. 32 A REVIEW IN LAW AND EQUITY. There are three incidents pertaining to all life es- tates, of whatever nature: I. Estovers, or the right of the tenant to cut and use wood for the purposes stated on page 23.' 2. Emblements, which are the annual crops brought to maturity by the labor of the tenant. Grass, fruit, etc., are not emblements. When the termination of 'the tenancy could not have been foreseen, and ^vas not occa- sioned by his own act, the tenant or his personal repre- sentatives are entitled to emblements : as, in an estate to A for life, if A dies before the emblements are gath- ered, his personal representatives would be entitled to emblements. But in an estate to A to hold so long as she remains unmarried, the marriage of A would de- stroy her right to emblements. 3. The right of subletting, unless there is a provision in the lease to the contrary. 8 Legal estates of freehold are divided into three classes, tenancy in tail after possibility of issue extinct, curtesy, and dower. 1. Tenancy in tail after possibility of issue extinct arose from an estate tail special, where the person from whose body the issue was to come had died, leaving no issue ; or having left issue, the issue had become ex. tinct. The surviving tenant, under these circum- stances, had a life estate, with the right of committing waste, a right not enjoyed by the ordinary tenant for life. 3 2. Curtesy arises when a man marries a woman seized of an estate of inheritance, and she dies, having had issue capable of inheriting the estate. The hus- 1 Estovers, as used in this connection, should not be confounded with the common of Estovers, which, strictly, is a right exercised in lands other than those occupied by the tenant. 2 2 Bl. Comm. 122 et sey.; 4 Kent Comm. 73, 3 2 Bl. Comm. 124. FREEHOLDS NOT OF INHERITANCE. 33 band then has an estate for life in these estates of the wife. There are four requisites essential to curtesy. (i). Legal marriage. (2). Actual seisin of the wife. (3). Birth of issue capable of inJieriting. (4). Death of the wife. 1 Seisin is of two kinds actual, or seisin in fact, and constructive, or seisin in law? In connection with cur- tesy, seisin means the actual possession or enjoyment of the estate of inheritance by the wife. There was no curtesy in a remainder or reversion. As the hus- band had it in his power to reduce his wife's construc- tive seisin to actual seisin, he had no curtesy in her estates if he failed to do so. 3 Upon marriage and the birth of issue capable 01 inheriting, the husband became tenant by the curtesy initiate, and this interest at common law could be sold under execution. 4 The husband had curtesy in the equitable estates of the wife, to whose rents and profits she was entitled, 5 though there was no curtesy in equitable estates in which the wife was the trustee. Curtesy is regulated by the statutes of the different States, the common law having been largely modified in most instances. 3. Dower arises when a husband is seised, dur- ing marriage, of an estate of inheritance and dies. Here the wife has a life estate in one-third of such lands and tenements. There are three requisites of dower, (i). Legal mar- 1 2 Bl. Comm. 126 et sef.; 4 Kent Comm. 27 et seq.\ i Wash. R. P. *I28 et setf. 5 Constructive seisin is substantially merely a right to gain actual seisin. 3 2 Bl. Comm. 127-130. 4 Wickes v. Clarke, 8 Paige 172; Canby's Lessee v. Porter, 12 Ohio 80. This principle is changed by statute in some States. 1 6 i Wash. R. P. *I30. 34 A REVIEW IN LAW AND EQUITY. riage. (2). Seisin, either actual or constructive, of the husband. (3). Death of the husband. Actual seisin is not essential, since the wife has no power to convert the husband's constructive seisin into actual seisin. 1 At common law dower could be barred in three ways: (i). By elopement and adultery. (2). Divorce a vin- culo. (3). Jointure, which was an estate settled upon a woman in lieu of dower. There were four essentials to a good jointure : (i). It must take effect immediately on the death of the husband. (2). It must be for the wife's own life, not for the life of another, nor for a term of years. (3). It must be held by her in her own right, and not in trust for her. (4). It must be in lieu of her whole dower? A jointure made before marriage was binding on the wife ; if made after marriage, she had her election be- tween the jointure and her common-law dower. 3 By the widow's quarantine was meant the right of the widow to remain in and occupy the house of her deceased husband for the period of forty days. In case an insufficient dower was assigned to the widow, she could enforce her claim to the rest by the writ of rig/it of dower. If no dower were assigned, she could enforce her claim by a writ of dower* The subject of dower is regulated by statute in the various States, and these statutes, as well as those re- lating to curtesy, should be carefully studied by the student, in preparation for his examination. 1 2 Bl. Comtn. 129 et seq.; 4 Kent Comm. 35 et seq.\ i Wash. R. P. *i6g, par. 1-5. 2 Bl. Comm. 136. 3 i Wash R. P. *266. 4 3 Bl. Comm. 182, 183. CHAPTER VII. ESTATES LESS THAN FREEHOLD. Estates less than freehold are of three kinds es- tates for years, estates at -will, and estates at suffer- ance. I. An estate for years is an estate created by a con- tract for the possession of lands or tenements for some determinate period. 1 It is created by a lease. The lease itself creates no estate, but gives the lessee a bare right of entry, which is called the interesse termini? The word term indicates the interest, or the amount of estate which the lessee has in the property. The word time indicates how long the term may continue. Thus, if an estate is granted to A for six years, and, at the end of the term, to B for ten years, in case A sur- renders or forfeits his interest B's estate vests immedi- ately, as the term has expired ; while if the same grant had been made with remainder to B at the expiration of the time, B's estate would not vest till the end of six years, whatever might have become of the estate of A in the meantime. 3 The incidents of an estate for years are : 1. Estovers. 2. The right of subletting, unless there is a covenant to the contrary in the lease. 3. Emblcments, under certain circumstances, as when the estate for years is brought unexpectedly to an end 1 2 Bl. Comm. 139. See Tied. R. P. 172. 2 Tied. R. P. 174. 3 2 Bl. Comm. 144. See i Wash. R. P. *2Q2, par. 4. (35) 36 A REVIEW IN LAW AND EQUITY. by no fault of the tenant's. Thus if A leases for a term of years from B, a tenant for life, and the latter dies before the lease for years expires, A is entitled to emblements. 1 In case the property leased consists of buildings, un- less there are covenants to that effect, the tenant cannot compel the landlord to keep them in repair. Though they should be destroyed by fire immediately after the making of the lease, the landlord is not obliged to re- store them, nor is the tenant relieved from paying rent. Even equity gives no relief in this case. 3 So long as the tenant remains in possession, he can under no circumstances dispute his landlord's title. 3 II. Estates at will are such as are held at the will of landlord and tenant, and may be determined at the will of either party. 4 No arbitrary termination of the estate was allowed to operate to the injury of either party. The tenant was entitled to emblements if the estate was determined by the landlord. 5 The law does not favor estates at will, and at common law they were generally construed as estates from year to year, as the rent was usually paid annually. 6 The general rule now is that either party must give the other a notice equal in length to the rent period, before he can ter- minate the estate, and that this notice shall take effect at the beginning of a rent period? If A is tenant of B and pays his rent quarterly, and the rent is due the first of October, a notice to quit from B given on the first of August would operate from the first of the fol- lowing October. III. An estate at sufferance occurs when a tenant 1 2 Bl. Comm. 144; Tied. R. P. g 182. J 2 Bl. Comm. Id. (Cooley's ed. note 9); Tied. R. P. 189. 3 Tied. R. P. 198, and cases cited. 4 Tied. R. P. 212; i Wash. R. P. *37o. See 2 Bl. Comm. 145. 5 4 Kent Comm. in; 2 Bl. Comm. 146. 6 Id. 112; Id. 147, and note. 7 Tied. R. P. 218. ESTATES LESS THAN FREEHOLD. 37 comes into possession of land by a lawful title, and remains in possession when the title has expired, and without any lawful title. 1 Such a tenant differs from a trespasser only in that the landlord must make entry and proceed against him by the action of ejectment." 1 4 Kent Comm. 116. * 2 Bl. Comm. 150. See Darrell v. Johnson, 17 Pick. 266. CHAPTER VIII. ESTATES UPON CONDITION. An estate upon condition is one which may be cre- ated, enlarged, or defeated by the happening or not happening of- some event. 1 Conditions are divided into 1. Conditions in fact, or express conditions, being such as are contained in the instrument creating the estate, as in the case of a mortgage. 2. Conditions in law, or implied conditions, which need not be expressed in the deed, but which exist by the presumption of law, as that a tenant for life shall not commit waste ; as, in a grant to a corporation, that the corporation shall live up to its object and design.* Conditions are also divided into 1. Conditions precedent, or those which must be ful- filled before the estate can vest or be enlarged ; as, an estate to A for life on his marriage with B : an estate to A for ten years ; if he marries B, then for life. 2. Conditions subsequent, or those which cause the defeating of the estate ; as an estate to A to hold so long as he remains unmarried. 3 Express conditions are void A. If they are impossible, or become so by the act of God ; as an estate to A for life if he shall go a tho- sand miles in an hour. B. If they are repugnant to the law ; as an estate to A for life if he kills a certain person. 1 4 Kent Comm. 121; 2 Bl. Comm. 151. 2 2 Id. et seq. 3 4 Kent Comm. 124; Tied. R. P. 271. (38) ESTATES UPON CONDITION. 39 C. If they are repugnant to the nature of the estate ; as an estate to A for life, provided he alienates a por- tion of it in fee. 1 If the void condition is a condition precedent, the estate never vests ; if a condition subsequent, it is in- operative and cannot defeat the estate. The distinctions between an estate upon condition, an estate with limitation, and a conditional limitation are these : An estate upon condition is one which is not abso- lutely defeated by the happening of the condition, but which requires entry on the part of the grantor or his heirs in order to completely divest the grantee of the estate ; as, an estate to A for life, upon condition that he remain unmarried. Here, upon the marriage of A, entry on the part of the grantor or his heirs would be necessary to defeat A's life estate. An estate with limitation is one which is absolutely defeated by the happening of the condition ; as, an estate to A to be held only as long as he remains un- married. Here the marriage of A entirely divests him of the estate, no entry on the part of the grantor or his heirs being needed. A conditional limitation is an estate upon condition with a limitation over to some other party upon the happening of the condition ; as, an estate to A for life upon condition that he remain unmarried, but if he marry, then to B and his heirs. Here, upon A's mar- riage, his estate would be defeated and the title would immediately vest in B and his heirs. The condition is construed as a limitation, out of regard for B, whose estate might otherwise be defeated through the failure of the grantor or his heirs to enter upon A's mar- riage. 2 1 2 Bl. Comm. 156, 157; Tied. R. P. 274, 275. 8 Tied. R. P. 281; 4 Kent Comm. 126. See also 2 Bl. Comm. 155. 4O A REVIEW IN LAW AND EQUITY. Among the most important estates upon condition are those created by mortgage. In this connection may be mentioned the vivum vadium, which was the grant of an estate from A to B, to be held by the latter until the rents and profits should pay to B a loan from the latter to the former. In this case the pledge was a living one ; that is, the title to the land could not be completely lost by A. A Welsh mortgage differed from a vivum vadium only that in the case of the former the rents and profits were applied solely to the payment of the interest, while in the latter they were applied both to principal and interest. 1 Both the vivum vadium and the Welsh mortgage are obsolete. A mortgage proper (vadium mortuunt) is a convey- ance absolute in form, from A to B, upon condition that if A shall at a time certain or upon demand repay to B a sum of money, the conveyance shall be void. 3 At common law, if the mortgagor failed to make the payment precisely at the appointed time, the estate conveyed in mortgage became absolute in the mort- gagee. Afterwards equity interfered and gave to the mortgagor a reasonable time in which to redeem the estate, upon condition broken, this right being called the mortgagor's equity of redemption? There are two parts to a mortgage, the conveyance, and the defeasance, which contains the conditions, upon the fulfillment of which the conveyance becomes void. They are commonly contained in the same instrument, though they may be made separately. 4 A deed abso- lute in form may be shown to be a mortgage, if that was the real intention of the parties. 6 1 2 Bl. Comm. 157 ; 4 Kent Comm. 137 ; 2 Wash. R. P. *476 2 2 Wash. R. P. *475 ; R. and L. Law Diet., sub. Mortgage. 3 2 Bl. Comm. 158; Tied. R. P. 299. 4 4 Kent Comm. 141. 5 See Emerson v. Atwater, 7 Mich. 12; Tied. R. P. 307. FORECLOSURE. 41 At common law it was held that the fee, together with the general property, was in the mortgagee, there being merely a right of redemption in the mortgagor, and this is the doctrine in some States, while in others it is held that the fee is still in the mortgagor, the O O ' mortgagee having only a lien on the mortgaged prop- erty. 1 The mortgagee's interest is regarded as a chattel in- terest, and goes to his personal representatives, instead of to his heirs-at-law. s At common law the mortgagee could take posses- sion of the mortagaged premises at any time, and apply the rents and profits to the liquidation of his claim, unless there was a stipulation that the mort- gagor should remain in possession until condition broken. Mortgages generally contain this provision, and if they do not it is the universal practice for the mortgagor to retain possession, founded upon the pre- sumed or tacit consent of the mortgagee. 3 Upon default in payment, the mortgagee has the right to foreclose that is, to cut off the mortgagor's interest in the mortgaged premises. The methods of doing this are regulated by statutes, varying in the different States. These statutes should be consulted by students. In general, they may be grouped under the following heads : a. By peaceably entering on the premises and remain- ing in possession a certain time." The mortgagor, during this time, can redeem by paying the amount due, and the mortgagee must account for the rents and profits. b. By bringing a bill in equity, asking for a foreclos- ure by decree of court. Sometimes the court de- 1 2 Bl. Comm. 158; 4 Kent Comtn. 154. See Tied. R. P. 301. 8 Tied. R. P. 319. 3 4 Kent Comm. 155, 165. 4 2 Pingree on Mortgages, 1576 et seq. 42 A REVIEW IN LAW AND EQUITY. crees that unless the mortgagor shall pay the amount due before a certain time, his interest shall be forever foreclosed, and that the estate shall become absolute in the mortgagee. This is called strict foreclosure. The more common decree is for a sale of the premises, any balance left after payment of the amount due on the mortgage and the costs to be paid to the mortgagor. 1 c. Many mortgages contain a power of sale, author- , izing the mortgagee, in default of payment, to sell the mortgaged premises. This proceeding is regulated by statute.' The mortgagor is not obliged to foreclose if he has any personal remedy against the mortgagee, as a note or a bond ; and if foreclosure proceedings fail to sat- isfy his claim, he can follow any personal remedy he may have. Tacking was an English doctrine by which, if there were three mortgages on the same property, the third mortgagee could buy the first mortgage and could " tack " his third mortgage to it, compelling the pay- ment of the first and third before the second could be satisfied. It depended on the equitable maxim that when the equities are equal the law will prevail. The doctrine does not hold in the United States. 3 1 Tied. R. P. 358. * Tied. R. P. 363. * 4 Kent Comm. 176 et sty. CHAPTER IX. REMAINDERS EXECUTORY DEVISES REVERSIONS. I. A remainder is an estate limited to take effect on the termination of some preceding estate. There are three essentials to every good remainder. 1 . // must have a particular estate to support it. An estate at will is not sufficient for this purpose. 2. The remainder must pass from the grantor at the time of the creation of the particular estate. If an es- tate for life were conveyed to A to-day, and to-morrow a conveyance were made creating a remainder in B, the latter would be void. 3. The remainder must vest during the existence of the particular estate, or immediately on its termi- nation. If an estate be given to A for life, re- mainder to B's oldest son, and B dies before A, leaving no son, the remainder is void ; while if B has a son during the life of A, the remainder vests in him and is good.' Remainders are of two kinds vested or executed, and contingent or executory. A. A vested remainder is one in which the estate is invariably fixed in a determinate person on the termi- nation of the particular estate. It is one in which the remainder-man is certain to enjoy the estate, provided he survives the owner of the particular estate. The test to distinguish between a vested and a contingent remainder is the certainty of the right to enjoy which the remainder-man in the first case has, not the cer- 1 2 Bl. Comm. 164 et seq. (43) 44 A REVIEW IN LAW AND EQUITY. tainty of the enjoyment? An estate to A for life, re- mainder to B and his heirs, is a vested remainder. B. A contingent remainder is one which is directed to take effect in a dubious or uncertain person, or upon a dubious or uncertain event, as an estate to A for life, remainder to B's unborn son, or an estate to A for life, remainder to B upon his return from Rome. Every contingent remainder requires an estate of free- hold to support it, in order that the seisin may vest." In an estate to A for twenty years, remainder to B and his heirs, upon A's taking possession the seisin is in B ; but in an estate to A for twenty years, remain- der to B's unborn son, there is no one in whom the seisin can vest, and consequently the remainder would be void, and only the estate to A would pass by the conveyance. As a general rule, a contingent remainder cannot be limited on a double possibility or contingency where there is some legal improbability in the contingencies ; as, in an estate to A for life, remainder to B's heirs, no such person as B being in existence.* &HVM**x ILLUSTRATIONS. An estate to A for life, remainder to such uses as A shall appoint, and in default of appointment, remain- der to B, is a vested remainder in B. 4 An estate to A for one hundred years, if B shall live so long, and after B's death to C in fee, is a vested re- mainder. The possibility that B will live one hundred years is so small as not to give a contingent character to the remainder. 5 1 2 Bl. Comm. 168; 4 Kent Comm. 202, 203, 206; Fearne Cont. Rem. 216. a 2 Bl. Comm. 171. 3 Id. 170. This rule is obsolete. Tied. R. P. 417. 4 Cunningham v. Moody, i Ves. 174. 6 4 Kent Comm. 209. REMAINDERS. 45 An estate to A, B, and C for life, remainder in fee to the survivor of them, is a contingent remainder. 1 A devise of one lot to A in fee and of another to B in fee, and if either dies without issue the survivor to take both, is a cross contingent remainder.* The courts favor vested remainders, and where there is doubt will construe remainders as vested. 3 Rule in Shelly's case. 4 When by any gift or con- veyance an ancestor takes an estate for life, and by the same gift or conveyance an estate is limited, either me- diately or immediately, to his heirs in fee or in tail, the word heirs shall be construed as a word of limitation, and not of purchase. Under this rule, if an estate were given to A for life, remainder to his heirs, the whole estate would vest in A and he would take an estate in fee simple. In other words, the word heirs has no reference to the heirs as such, but it is regarded as simply defining or limiting the estate which the ancestor is to take. If the ances- tor dies intestate and not having alienated the estate, the heirs take by descent, and not by purchase under the grant to the ancestor. So, if an estate were given to A for life, remainder to B for life, remainder to A's heirs, A would have a life estate with remainder to himself in fee, and he could convey his life estate, sub- ject to B's life estate, together with the remainder in fee simple, so as to bar his heirs. 5 The rule in Shelly's case has been abolished in some States, in others it has partial operation, and in others it retains its full effect. A perpetuity is an attempt to control the disposition and direction of property for a longer time than is al- lowed by law as, if an estate were given to A for life, 1 Id. 207. 5 Id. 201. 3 Id. 203. 4 i Co. 104. 5 See 4 Kent Comm. 214; Tied. R. P. 433 et seq.\ 2 Wash. R. P. *268 et seq. 46 A REVIEW IN LAW AND EQUITY. remainder to B's eldest son C, remainder to C's eldest son, etc. The law permits the owner of property to control its disposition among persons who are in existence during the life of the first taker, and for twenty-one years after their decease. That is, the absolute and uncontrolled inter- est must vest in some person during that time, any limita- tion beyond being void. 1 A grant of property to trus- tees to hold in trust during the lives of the testator's sons and during the lives of all their sons who should be living at the time of the testator's death, and upon the death of the last to be given to certain persons absolutely, would be good, as not coming within the rule against perpetuities. This subject is regulated by statute in the different States. There is one exception to the rule against perpetuities, namely, in grants of property to trustees to be held for eleemosynary purposes * i. e., for purposes of religion, education, charity, and of relieving the people of bur- dens which might be imposed by the government by way of taxation. Here the grantor can determine the perpetual disposition of the property. Merger is the doctrine by which, when a lesser and a greater estate come together in the same person, the lesser is merged or swallowed up in the greater. Thus, in a grant of an estate to A for life, remainder to B and his heirs, if A should purchase the remainder of B, his estate for life would be merged in the fee thus acquired. The estates must vest in one and the same person by one and the same right, in order to allow of merger. Thus, if a tenant for years should make the remain- der-man or reversioner his executor, merger would not take place. Merger did not apply in the case of an estate tail, if the tenant in tail purchased the reversion. 1 1 4 Kent Comm. 267; Tied. R. P. 544. Bish. Eq. 133. 2 Bl. Comm. 177. EXECUTORY DEVISES REVERSIONS. 47 ^\ II. An executory devise is such a disposition of lands by will that thereby no estate vests in them on the death of the devisor, but only on some future contin- gency. An executory devise differs from a remainder in three particulars : 1. It does not require a particular estate to support it. A conveyance by deed to A, to take effect in one year from its date, would be void. A devise to A, to take effect one year from the testator's death, would be good. 2. A fee can be limited over a fee by an executory de- vise ; by a remainder it could not. In estate to A in fee, and if he dies before reaching the age of twenty- one, then to B and his heirs, the limitation over to B would be void by deed ; it would be good in a devise. 3. By an executory devise a remainder can be limited in a cliattel interest after a life estate in the same. A grant of an estate of a thousand years to A, to be held by him for life, remainder to B, would be void by deed, but good as an executory devise. At common law a life estate was regarded as greater than an estate for years, however long, and when the two came together in one person the estate for years was merged in the life estate, and there was nothing on which a remainder could operate. But in wills the strictness of the common law was mitigated in order to carry out the obvious intention of the testator. 1 III. A reversion is the residue of an estate left in the grantor to commence upon possession after the de- termination of a particular estate granted by him. It is -never created by deed, but arises by construction of law. The usual incidents of a reversion are fealty and rent. 1 2 Bl. Comm. 172 et seq. For discussion of 2, see Van Home v. Campbell, 100 N. Y. 287. 48 A REVIEW IN LAW AND EQUITY. The rent may be granted away, reserving the rever- sion, and the reversion may be granted away, reserving the rent, by special words ; but by a general grant of the reversion the rent passes as an incident thereto. 1 1 2 Bl. Comm. 175. CHAPTER X. SEVERALTY, JOINT TENANCY, ETC. With regard to the number and connection of their owners, estates may be held in four different ways sever alty, joint tenancy, coparcenary, and tenancy in com- mon. I. An estate is held in severalty when one person is the sole owner thereof. II. An estate in joint tenancy is where lands or tene- ments are granted to two or more persons to hold in fee simple, fee tail, for life, for years, or at will. 1 This estate is always created by act of the parties, never by laiv. Estates in joint tenancy always possess four unities, namely, title, time, interest, and possession, i. e., the estate must be created by the same title, and at the same time, and each tenant must have an equal inter- est and a common possession. Joint tenants are seised per my et per tout, i. e., each one is seised of the whole and of each part. They are seised of the whole of an undivided part, not of apart of an undivided whole, as is the case with tenants in common. Therefore when one joint tenant conveys to another, a release would be used, and not a feoffment, since no livery of seisin is needful, each tenant being already seised." In the case of a grant to a man and his wife, they were neither tenants in common nor joint tenants, as they were regarded as one person. They were seised 1 2 Bl. Comm. 180. 9 2 Bl. Comm. 180 et seq. ; Tied. R. P. 238. (49) 50 A REVIEW IN LAW AND EQUITY. per tout and were called tenants by the entirety. In a grant to a man and his wife and a third person, the man and wife took a half, and the third person the other half. 1 The chief incident of joint tenancy was the right of survivorship (Jus accrescendi), by which the whole es- tate given to the joint tenants finally vested in the last survivor. Thus in a grant to A, B, and' C to hold as joint tenants in fee, the whole estate in fee would vest in A if he survived B and C. 2 An estate in joint tenancy may be destroyed by de- stroying any of the four unities. At common law there was no right of partition, but this right was given by statute 31 and 32 Henry VIII. (1540-41)." Suppose an estate were given to A, B, C, and D to hold as joint tenants for life, with remainder in fee to the survivor, and that D alienates his interest to E. Then A, B, and C are joint tenants with regard to each other, and tenants in common with regard to E. C dies, then A and B hold three-fourths of the estate as joint tenants, and E one-fourth as a tenant in common with A and B. B dies, then A holds the three-fourths and E the one-fourth as tenants in common. On the death of D the whole estate in fee would vest in A. III. Coparcenary is where lands of inheritance de- scend from an ancestor to two or more persons. By common law, when an ancestor died leaving as his heirs females, they all inherited, taking as coparceners. By spe- cial custom, males took as coparceners, as in lands held by gavelkind. Coparcenary differed from joint tenancy in four re- spects : i. It was created by act of law, while joint tenancy was created by act of parties. 1 2 Bl. Comm. 182; Tied. R. P. 242, 243. * Id. 183; Id. 238. 3 2 Bl. Comm. 185. SEVERALTY, JOINT TENANCY, ETC. 51 2. The unity of time was not necessary. If A, B, and C were coparceners, and A died leaving a daughter D ; B, C, and D were still coparceners, though unity of time was absent. 3. There was no right of survivorship, since coparcen- ers were seised per my and not per tout. 4. Coparceners could compel partition at common law. 1 Hotchpot was where one coparcener had, prior to the death of the ancestor, received an estate in frankmar- riage, and then the ancestor had died, leaving estates in fee simple. The donee in frankmarriage was obliged to put her estate in with the estates in fee simple, in order to share as coparcener in such estates. The rule held only where lands descended in fee simple. When they descended in fee tail, the donee in frankmarriage was entitled to her share as though she had received no advancement. 2 IV. Tenancy in common is where tenants hold by different titles, but have the unity of possession. They are seised per my and not per tout, consequently there is no right of survivorship. Partition could not be compelled at common law, but statutes 31 and 32 Henry VIII., enabled this to be done. 1 The ancient common law favored joint tenancy. When the influence of the feudal system weakened, the construction favored tenancy in common. At the present time, express words to that effect are needed to create an estate in joint tenancy, such as " to hold as joint tenants and not as tenants in common."' 1 2 Bl. Comm. 187 et seq. s Id. 190. 3 2 Bl. Comm. 191; Tied. R. P. 239. 4 2 Bl. Comm. 193 ; Tied. R. P. 240 ; I Wash. R. P. *4o8. CHAPTER XL TITLE BY DESCENT. Title is the legal ground upon which a person's es- tate rests. A perfect title comprises actual possession, right of possession, right of property? The right of property is now obsolete. 2 At common law these three elements of title might exist in as many different persons. Suppose that A disseises B. A hai the naked possession, but both the apparent and the actual right of possession lie in B. A dies, still in possession, and C, his son, remains in pos- session. This is called a descent cast, /. e., when a dis- seisor dies and his heir takes possession of the prop- erty. Now C has the actual right of possession, though the apparent right of possession is still in B. He can enforce his right only by an action at law, but not by any act of his own. Should B take no action for thirty years, his apparent right of possession would be gone, and he would have the mere right of property, C hav- ing the possession and the right of possession. Now if C should be disseised by D and the latter's son E should receive the estate by a descent cast, the actual right of possession would be in E, the apparent right of possession in C, and the right of property in B. In case the disseisor and his heirs remained in pos- session under a claim of right for sixty years, they gained a perfect title, and the disseisee lost even the right of property. 3 The common law in regard to the time required to 1 2 Bl. Comm. 195, 196. s Id. 198, note 3 (Cooley) ; see Walker's Am. Law, 366. 3 2 Bl. Comm. 197 et seq. (52) TITLE BY DESCENT. 53 gain a complete title to real property by adverse pos- session has been changed by statute both in this coun- try and in England, and now by open, continued, unin- temtpted, and adverse possession under a claim of right for twenty years, an owner's title may be completely barred. 1 Generally, by statute, the twenty years do not begin to run in the case of infants, married women, insane persons, and persons beyond seas, until the disabil- ity has been removed. 2 The occupancy by adverse possession need not be by one person, but may be by any number of persons who are in privity with each other, as ancestor -and heir, grantor and grantee. 3 Descent is the title by which a person, on the death of his ancestor, acquires his estate by right of repre- sentation as his heir-at-law. Consanguinity is the relationship existing between persons who are descended from the same common ancestor. Consanguinity is of two kinds: i. Lineal, or the relationship existing between per- sons one of whom is descended directly from the other, as between father, son, grandson, etc. 2.. Collateral, or the relationship existing between persons descended, not the one from the other, but from the same ancestor, as between brothers, they be- ing descended from the same parents. In reckoning lineal relationship, each generation counts a degree, so that the father is related to the son in the first degree, to his grandson in the second, etc.* In computing collatereral relationship, two methods have been used : a. The common- law method, in which, starting with the common ancestor, the degrees were reckoned down 1 See 3 Wash. R. P. *48g et seq. ; Tied. R. P. 697 et seq.\ School District v. Lynch, 33 Comm. 333 ; Gay r. Mitchell, 35 Ga - X 39 > Mor * rison v. Kelley, 22 111. 610 ; School District v. Benson. 31 Me. 384. * 3 Wash. R. P. *soi. 3 Id. *493- 4 2 Bl. Comm. 201 et seq. 54 A REVIEW IN LAW AND EQUITY. by generations to the persons whose relationship was to be determined, and the degree of the more remote de- termined the degree of relationship. If they were re- lated in the same degree to the common ancestor, that degree determined the degree of relationship between them. Thus, the degree of relationship of an uncle and a nephew is determined by starting from the com- mon ancestor, who would be the grandfather of the nephew and the father of the uncle, and reckoning down to the nephew, two degrees, and to the uncle, one degree ; and the degree of the nephew being the more remote, he would be related to the uncle in the second degree. First cousins would be related in the second degree, each being two degrees removed from the common ancestor, the grandfather. b. The metJiod of reckoning consanguinity employed in the civil law, and which has been generally adopted in this country, is to count from one person up to the common ancestor, and then down to the other, the sum of the degrees determining the degrees of relationship. Uncle and nephew would be related in the third degree, first cousins in the fourth, etc. 1 An heir apparent is one who would inherit, pro- vided he survives the ancestor, as an eldest son. An heir presumptive is one who would inherit, pro- vided the ancestor should die at the present moment, as a daughter who was an only child.* There are seven canons of descent at common law. All are now obsolete, with the exception of the fourth, which is still operative with considerable modifications. I. Inheritances shall lineally descend to the issue of the person who last died actually seised, but shall never line- ally ascend. Actual seisin is necessary. Thus, if A 1 2 Bl. Comm. *2o6 and note (Cooley); 4 Kent Comm. 412; 3 Wash. R. P. *4o6. 2 2 Bl. Comm. 208. TITLE BY DESCENT. 55 should die leaving two sons, B the elder, C the younger, and B should die, never having been act- ually seised, C, the younger son, would inherit to the exclusion of B's heirs, as being the heir of A, the per- son last actually seised. 2. Male issue shall be preferred to female. A dies leaving three daughters and one son. The son inherits the whole estate to the exclusion of the daughters. 3. Where there are two or more males in equal degree, tlie eldest only shall inherit; -where there are two or more female heirs in the same degree, they take as co- parceners, share and share alike. 4. The lineal descendants of 'any person deceased shall represent their ancestor, i. e., shall stand in the same place that the person himself would have stood, had he been living. Suppose an ancestor has three daughters, A, B, and C ; A dies leaving three daughters, B dies leaving a son and two daughters, and C dies leaving four daughters. Last of all, the ancestor dies. Then the three daughters of A will each take one-third of one-third of the estate, being regarded as standing in the place of their mother. The son of B would take the whole of one-third, ac- cording to canon 2, the four daughters of C will each take one-fourth of one-third of the estate. This taking by representation is called succession per stirpcs. The general rule prevailing in this country is that where the heirs are related in the same degree, they take share and share alike. When related in different degrees, they take per stirpes. 1 Thus, in the illustra- tion, the ten children of A, B, and C would each take one-tenth of the estate of the ancestor. 5 . On the failure of hneal descendants of the per son last seised, the inheritance shall descend to his collateral rela- tions, BEING OF THE BLOOD OF THE FIRST PURCHASER, 1 4 Kent Comm. 391. 56 A REVIEW IN LAW AND EQUITY. i. e., of the person who first received the grant of the es- tate from the lord. According to the ancient law, if A acquired a feud by purchase and died leaving no issue, the feud would escheat. Even his brother could not take, as he was not descended from A, the first purchaser. A feud acquired by descent was called ^feudum an- tiquum, and in case A acquired a feud by descent, and died without issue, B his brother could inherit as being of the blood of the ancestor. When the rigor of the feudal system was abated, in order to admit collaterals to the inheritance in the case of feuds acquired by pur- chase, it was customary in grants of feuds to grant them "to be held as feuda antiqua" that is, to be held with all the qualities of a feud derived from the pur- chaser's ancestors. 6. The collateral heir of the person last seised must be his next collateral kinsman of the whole blood. The half-blood, at common law, could never inherit. If A should die leaving two sons by different mothers, B, the elder, and C, the younger, and B should die, never having been actually seised, it is true that C, the half-brother, would inherit, not, however, in any sense as the heir of B, but as being the heir of the person last actually seised, namely, A. A kinsman of the whole blood is one descended from the same pair of ancestors. 7. In collateral inheritances, kindred derived from male ancestors, however remote, shall be admitted before those derived from female ancestors, however near, i. e., the relatives on the father's side, no matter how re- mote they may be, are admitted in preference to rela- tives on the mother's side, however near. An uncle on the father's side would be admitted in preference to an uncle on the mother's side. 1 1 For discussion of these rules see 2 Bl. Comm. 208 et seq. ; 4 Kent Comm. 375 et seq. CHAPTER XII. TITLE BY PURCHASE. Purchase is the possession of lands and tenements which a man has, by his own act or agreement, and not by descent. 1 There are five methods of acquiring a title to estates by purchase: escheat, forfeiture, occupancy, prescription, alienation? 1. Escheat is the means by which, on the extinc- tion of inheritable blood on the part of the person last seised, the lord acquired title to the estates of his ten- ant. Actual entry by the lord or the suing out of a writ of escheat, was necessary in order to complete his title. 3 2. Forfeiture is the punishment annexed by law to some illegal act or negligence in the owner of real property, whereby he loses all his interest therein. At common-law forfeiture took place in eight ways 4 a. By crimes and misdemeanors, such as treason, felony, etc. b. By alienation contrary to law. Thus, if a tenant for life alienated in fee simple, he would forfeit his life es- tate. There is no forfeiture on this ground to-day. In the illustration the tenant would simply convey his life estate by his deed in fee simple. c. By non-presentation to a benefice. d. By simony or the corrupt presentation of any one to an ecclesiastical benefice or living for a reward ; 1 2 Bl. Comm. 240 ; 4 Kent Comm. 441. s 2 Bl. Comm. 244. 8 Id. 245. 4 2 Bl. Comm. 267 et seq. (57)' 58 A REVIEW IN LAW AND EQUITY. whereby the person entitled to present to the benefice or living lost his right to do so. e. By breach, or non-performance of a condition an- nexed to an estate. f. By waste. Waste is an injury to houses, gardens, trees, and other corporeal hereditaments to the disheri- son of the remainder-man or r'eversioner in fee simple or fee tail. g. By breach of copyhold customs, as by disclaiming to hold of the lord. //. By bankruptcy, whereby the title to property passes from the bankrupt to his assignees. 3. Occupancy is the taking possession of things which before belonged to nobody. The only instance at the common law where a title to real property could be gained by occupancy has been explained on page 31. By alluvion is meant the formation of soil by the action of water ; by dereliction, the rendering of soil available by the subsidence of water. In either case, the property in the soil thus formed or rendered available lies in the adjacent owner.' 4. Prescription is the title acquired in incorporeal hereditaments by virtue of their immemorial enjoy- ment by a person and those under whom he claims. By statute 32 Henry VIII. (1541), sixty years' enjoy- ment was essential to prove title by prescription. Twenty years' enjoyment is now essential. When a person prescribed in himself and those whose estate he held, he was said to prescribe in a que estate. When he prescribed as having received the right from his ancestors, he was said to prescribe in himself and his ancestors. In the former case he can prescribe for nothing that is not appendant or appurtenant to 1 2 Bl. Comm. 281 ; i Wash. R. P. 107 et sef. See/, *7i. (75) 76 A REVIEW IN LAW AND EQUITY. 3. The concord, or agreement, which is an acknowl- edgment from A that the lands in question belong rightfully to B, After this acknowledgment is made, A is called the cognizor and B the cognizee. 4. The note, which is merely an abstract of the writ of covenant and of the concord. 5. The foot, which includes the whole matter, con- taining the parties, day, year and place, and before whom it was acknowledged. 6. The proclamation, which was the reading in open court of the record of the fine. The number of read- ings varied with the different statutes passed in relation thereto. The effect of a fine was to bar the claims to the estate thus conveyed of parties, privies, and strangers. By parties are meant the cognizor and cognizee. By privies, such persons as are in any way related to the parties who levy the fine. Strangers, or all other persons in the world, were also bound by the fine, un- less, within five years after the proclamations were made, they interposed their claims. Persons having a future interest, as a remainder or reversion, were allowed five years in which to assert their claims after their rights accrued. Common recoveries, as first employed by the ecclesiastics, were mentioned on page 70. They were chiefly used as a means of barring estates tail, since by them the rights of remainder-man and rever- sioner were barred, as was not the case with the fine. Suppose A, the tenant in tail, wishes to convey his es- tate to B by a common recovery. B, the recoveror, begins an action against A, the recoveree, by a writ called zpracipe quod reddat, in which he alleges that A has not title to the lands in question, but came into possession of them after he, B, had been wrongfully turned out by some third party. A appears and asks ALIENATION BY MATTER OF RECORD. 77 that C, who warranted the lands to him, be called in to defend the title. This is called the voucher of C, and C is called the vouchee. C appears to defend the title, whereupon B asks leave to imparl, or confer with, the vouchee, C, in private. The leave is granted, where- upon the vouchee disappears or is defaulted, and then judgment is given in favor of B, to recover the lands in question from the tenant A, while A receives a I judgment for lands of equal value against C, the vouchee. The vouchee, C, who was usually the crier of the court, and who was called the common vouchee, had no lands, so that although A had a nominal recompense in the record for the lands lost to him, it practically amounted to nothing. This proceeding was held to bind the remainder-man and reversioner, because they could look for the satisfaction of their claims to the lands supposed to have been recovered by A front C, the common vouchee. Sometimes two or even three vouchees were employed, but the proceeding was in this case substantially like the one just described. Alienation by special custom applied especially to copyhold estates, which could not be conveyed di- rectly from one copyholder to another on account of their peculiar nature, they being technically estates at will. 1 The method of conveyance was for the copy- holder to make to the steward of the 'lord's court, as agent of the lord, a symbolic delivery of the lands, to- gether with an instrument called a surrender, in which the surrenderor states, in the form of a request, the disposition which he wishes the lord to make of the property, the person to whom he wishes it granted, etc. The common law rendered the execution of these di- rections obligatory on the lord. In order to devise a copyhold, it must be surrendered to such uses as should be declared in the will. 2 1 2 Bl. Comm. 147. 2 Id. 365 et seq. CHAPTER XVI. ALIENATION BY DEVISE LEGACIES. Alienation by devise is the disposition of a man's property contained in his last will and testament.' As has been seen, lands could not at common law be de- vised, and hence uses were resorted to for that purpose. When the statute of uses temporarily destroyed these equitable estates, the disposal of lands by will was im- possible, and this led to the passage of the statute of wills, 32 Henry VIII. (1540), five years after the adop- tion of the statute of uses, by which all persons seised in fee simple, except married women, infants, idiots, and persons of non-sane mind, could devise two-tliirds of their lands held in chivalry, and the whole of those held in socage. The statute of 12 Charles II. (1660) reducing all tenures to free and common socage, copy- holds being the only important exception, enabled owners to devise the whole of their real property. 2 Originally, a man could devise only one-third of his .personal property, but this restraint gradually wore away until he could dispose of the whole. 3 / Parties. The general rule is that all parties are competent to make a devise, with the exception of those mentioned in the statute of wills. 4 The capacity of married women in this respect is regulated by stat. ute in the different States. Any parties, however in competent to make a will, can be themselves devisees. 6 At common law a male infant could devise chattel? 1 2 Bl. Comm. 372. " Id. 375. 3 Id. 492; Schouler Wills 14. 4 Id. 31. 5 4 Kent Comm. 506. (78) ALIENATION BY DEVISE LEGACIES. 79 at the age of fourteen, and a female at the age of tivelve. The age of capacity has been increased throughout the United States, and, in many, an infant is incompetent to dispose of personal property by will. No infant could ever devise real property, except by special custom.' Execution. The general rule is that a will of real estate must be in writing and subscribed by the testator, and acknoivledged by him in the presence of at least two witnesses, who are to subscribe their names as witnesses? At common law a will of personal property was good without writing. 3 Such a will is called a nuncupative will. These wills are now valid only when made by a soldier in actual military service, or by a mariner while at sea.* Unless there be a statutory regulation to the con- trary, the testator need not sign his name at the end of the will, provided that the body of the will be in his handwriting, that his name appear in it, and that he intended to sign the instrument by thus writing his name in the body of it. 5 The testator need not sign the will in the presence of the witnesses. An acknowledgment that the signa- ture is his is sufficient. The witnesses need not attest the will in the presence of each other, though this is usually done. 8 When the witnesses are required to sign in the pres- ence of the testator, constructive presence is sufficient, such as being in an adjoining room and in such a position that the testator can see them if he wishes. But if the testator is unconscious, or cannot see the wit- nesses sign, such attestation is void." 1 1 4 Kent Comm. 506 ; Schouler Wills 39, 43 ; i Jarm. Wills 33. '- 2 Bl. Comm. 376; 4 Kent Comm. 513. 3 4 Kent Comm. 516. 4 Schouler Wills 360, 364. 5 Id. , 312; i Redf. Wills. *2ii. 6 4 Kent Comm. 515, and cases cited ; i Redf. Wills *2ig. 1 Schouler Wills g 340 et seq. 8O A REVIEW IN LAW AND EQUITY. Originally, if any one of the witnesses was a legatee under a will, the will was void, but the general rule now is that the bequest to that witness only shall be void. 1 Revocation. Wills may be revoked in four ways. 8 1. By the destruction or cancellation of a will, with the intention to revoke it. Alterations made after the will has been executed should be duly attested, or they will be void. 2. By the making of a subsequent will. 3. By such a change of circumstances as will lead to the presumption of an intention to revoke. Such a change of circumstances consists in marriage and the birth of a child, subsequent to the making of a will. Both these circumstances must exist ; one alone is not sufficient. 3 4. By the disposal, during life, of the property de- vised. In case a man by will disposes of a particular parcel of land, and then alienates it, the will is void as regards the land, and a subsequent repurchase does not bring it under the operation of the will. 4 LEGACIES. Legacies are bequests or gifts Q{ goods &nA.chattels\sy testament. 6 They may be divided into five classes. 1. General legacies, or those which are not an- swered by any particular portion of the estate the de- livery of which will alone fulfil the intent of the testator ; as a bequest to A of one thousand dollars. 2. Specific legacies, or those which will be answered only by the delivery of some particular portion of the estate ;" as a bequest to A of ten shares of some par- 1 Schouler Wills 357; 2 Bl. Comm. 377. 8 See Schouler Wills 380. 3 Brush v. Wilkins, 4 Johns. Ch. 506 ; Warner z: Beach, 4 Gray 162 ; Walker v. Hall, 34 Pa. St. 483. See local statutes. 4 4 Kent Comm. 529. See local statutes. Also i Redf. Wills *333 et seq. * 2 Bl. Comm. 512. 6 2 Redf. \Vills *i32. ALIENATION BY DEVISE LEGACIES. 8 1 ticular stock, or of some specific piece of furniture. In case the estate is not sufficient to pay all the debts and legacies, the specific legacies do not abate until all the others are exhausted. Neither can a specific legatee look to any property other than that specified for the satisfaction of his legacy.' 3. Demonstrative legacies, or those where a certain amount of money is given to come out of a particular fund. Such a legacy does not fail if the particular fund is changed, nor does it abate if the estate is not sufficient to meet all claims. 2 4. Lapsed legacies, or those in which the legatee dies before the testator. 3 5. Contingent legacies, as an estate to A, when or if he attain the age of twenty-one. 4 The Cy Pres doctrine is the rule of construction ap- plied to a will by which, when the testator evinces a particular and a general intention, and the particular intention cannot take effect, the words shall be so con- strued as to give effect to the general intention. It is principally applied to sustain bequests for charity. Where there is a definite charitable purpose which cannot be effected, the courts will not substitute another ; but if charity be the general substantial in- tention, courts will find some means of effectuating it, though the method provided for its execution fails, even by applying the fund to a different purpose from that contemplated by the testator, provided only it be chari- table. This doctrine is not universally accepted in the United States. 5 1 2 Redf. Wills *I35. J Id. *I36. 3 Id. *is8 ; 2 Bl. Comm. 573. * Id. 5 Bisp. Eq. 126 et seq.; 2 Redf. Wills *357 et seq. CHAPTER XVII. PERSONAL PROPERTY. Personal property comprises all property not of a freehold nature, nor descendible to the heirs-at-law. It may be divided into 1. Chattels real, or interests annexed to or concern- ing the realty, as a lease for years. 2. Chattels personal, consisting of tangible and mov- able property, not attached to the realty. 1 Under this head the doctrine of fixtures may be considered. Fixtures consist of personal property which has been attached to the realty, but which still retains its character as personal property and may be removed by the person attaching it to the realty, or his personal representatives. 2 This was in derogation of the com- mon law, which regarded all things attached to the realty as becoming a part thereof. 3 In determining whether an article is a fixture, the manner of its attachment and the difficulty of, and in- jury likely to be caused by, its removal, and particu- larly the intention of the parties, are to be considered. 4 The question as regards fixtures commonly arises in five instances. a. Between heir and executor, where the construction is in favor of the heir. b. Between the personal representatives of the tenant for life, and the remainder-man or reversioner, where 1 2 Kent Comm. 340, 341. 1 Ferard. Fixt. 2 ; Schouler Per. Prop. 112. There is some con- fusion in the use of the term, however. See Ewell Fixt. i. 3 2 Kent. Comm. 343. 4 Tied. R. P. 3 ; i Wash. R. P. *6. (82) PERSONAL PROPERTY. 83 the construction is in favor of the personal representa- tives. c. Between landlord and tenant, where the construc- tion is most strongly in favor of the tenant. d. Between vendor and vendee, where the construc- tion is in favor of the latter. e. Between mortgagor and mortgagee, where the construction is in favor of the latter.* The English rule, that courts are more ready to construe as fixtures articles used for purposes of trade and manufacture than those used for agricultural pur- poses, does not hold in the United States. 2 Personal property may also be divided into 1 . Choses in possession, and 2. Choses in action, or rights not reduced to pos- session, but which may be enforced by an action at law, such as bonds or promissory notes. Remainders may be limited in all chattels of a dura- ble nature. If there is a specific bequest of a chattel whose use involves its consumption, as of hay or grain, with remainder over, the latter is void. If, however, the bequest is general, the property should be con- verted into money and the principal reserved for the remainder-man. 3 Title to personal property may be acquired in three ways : by original acquisition, by act of law, by act of parties. i. Title by original acquisition may be acquired (a). By occupancy. This right is now confined to goods found upon the surface of the earth, when the finder is justified in appropriating them- to his own use, in case the owner cannot be found. 4 1 Tied. R. P. 3 ; i Wash. R. P. *6. See z Kent Comm. 345. 5 i Wash. R. P. *8. For discussion of cases see Ewell Fixt. no. 3 2 Kent Comm. 351 et seq. 4 Id. 357 ; see 2 Schouler Per. P. 6 et seq. 04 A REVIEW IN LAW AND EQUITY. (&). By accession, and confusion of goods. Acces- sion is the right to all which one's property produces, and the right to that which is united to it by acces- sion, either naturally or artificially. This includes the right to the produce of the soil, the natural increase of animals, etc. It is held that if a person hires animals for a certain time, he is entitled to the young born during that time, he being regarded as the temporary proprietor. (slf A by his labor unites to his own property the property of B, he becomes the owner of the latter by right of accession. A wilful trespasser cannot, however, gain a title to the property of another under this prin- ciple, and the true owner can reclaim and take his goods in whatever form they may exist, provided he can trace and identify them. If A should take logs belonging to B, convert them into boards, and the latter into boxes, B could assert his property in the boxes, provided he could prove that they were made from his logs. 1 In case of confusion of goods, if the mixture was by common consent, the owners are tenants in common. If the mixture was made wilfully by one party alone, he loses his right in the property unless he can dis- tinguish it from that with which it was intermingled, or unless it was equal in value to that with which it was intermingled. 2 (c). By intellectual labor, the rights to the profits of which are protected by patents and copyrights. "2. Title by act of law may be acquired (a). By forfeiture, as for various crimes. Title by forfeiture has practically no existence in the United States. A peculiar instance of forfeiture at common law occurred in the case of deodands, which were per- sonal chattels which were the immediate occasion of 1 2 Kent Comm. 361 et seg. * Id. 364 ; 2 Schouler Per. P. 37. PERSONAL PROPERTY. 85 the death of any reasonable creature, and which were thereupon forfeited to the king. 1 (b). By custom. The most important illustrations of a title thus acquired are heriots, mortuaries, and heir- looms. Heriots are customary tributes of goods and chattels, payable to the lord upon the decease of the tenant. They were sometimes the best beast, or best piece of furniture, etc. Heriots existed chiefly in copy- hold estates. Mortuaries were practically ecclesiastical heriots, be- ing a customary gift claimed by the minister in many parishes upon the death of parishioners. Heirlooms are goods and chattels which by special custom go to the heir with the inheritance, instead of to the personal representatives of the deceased. 8 (c\ By judgment. When a judgment is recovered against a defendant in trespass or trover, the title to the goods, for the conversion of which the action was brought, vests in the defendant. 3 (d\ By insolvency, by which, according to the laws of the different States, or by the national bankrupt law, when such a law is in force, the title to the goods of the insolvent is taken from him and vested by legal process in another, who is to dispose of the property according to law for the benefit of the creditors of the insolvent. 4 (e). By prerogative. This has no operation in this country. By it, at common law, the king was entitled to waifs, or goods thrown away by a thief in his flight ; wrecks, or vessels ashore after being abandoned by their crews ; and estrays, or wandering cattle whose owners were unknown.' (/). By intestacy, as when a person dies, leaving 1 I Bl. Comm. 300. * 2 Bl. Comm. 421 et seq. 3 2 Kent Comm. 388. * Id. 389. 5 i Bl. Comm. 290 ft sty. 86 A REVIEW IN LAW AND EQUITY. personal property undisposed of by will. 1 Here, by the authority of the proper court, the title to such property is vested in an administrator, whose duties are defined by statute, but which may be summarized as follows : (i.) To make an inventory of the estate of the de- ceased. (2.) To collect the outstanding debts, convert the prop- erty into money, and pay the debts due from the estate. The order in which debts are to be paid is prescribed by statute. At common law the order was: funeral charges ; debts due the State ; debts of record, as judg- ments ; debts arising from instruments under seal ; debts arising from simple contracts. (3.) To distribute the estate to those who are by law entitled to it." Students should examine the statutes on this point. Executors are the persons appointed by a testator to carry out the directions and purposes of his will. 3 Their duties correspond to those of administrator in the first two points, unless there be a different provi- sion in the will in regard to turning the estate into money. Their other duties vary according to the will of the testator. At common law, an executor could appoint an executor to carry out the provisions of the will of which he was executor. This is now changed by statute in most States. An administrator had no such power. 4 An administrator or executor with will annexed, is a person appointed by the court to act as executor of a will when the testator has failed to appoint one.' An administrator de bonis non is an administrator ap- pointed to fulfil the duties of an administrator who has died, leaving the estate wholly or partially unsettled.' 1 2 Kent Comm. 409. 2 Id. 415-426. 3 I Williams Ex. 266. 4 2 Bl. Comm. 506. 5 i Williams Ex. 527. * Id. PERSONAL PROPERTY. 8/ An executor de son tort is one who, without authority, undertakes to act as executor. He is liable for any injury or loss which may occur to the property while he is so acting.' An administrator derives all his authority from the court, while an executor derives his authority primarily from the will, and it arises, not on the probate of the will, but at the testator's death." The descent of real property is governed by the lex loci rei sitce (law of the place where the property is sit- uated). Thus, if A dies in Boston, leaving real prop- erty in Chicago, its descent is regulated by the laws of Illinois. The descent of personal property is governed by the lex domicilii (law of the domicile). 3 By domicile is meant a person's legal residence. Thus, if A, whose home is in Boston, dies in Chicago, leaving personal property in New York, its descent is regulated by the laws of Massachusetts. 3. Title to personal property arising from the ACT OF THE PARTIES, may be by gift or by contract. Gifts are of two kinds, gifts inter vivos, and gifts causa mortis. Gifts inter vivos go into absolute and immediate effect. Delivery is essential to their validity. Actual delivery is necessary when such delivery is possible. If the thing given be a chose in action, there must be an assignment unless, as in the case of a promissory note payable to bearer, the title passes by delivery. A gift perfected by delivery and acceptance is irrevo- cable unless it be 4 a. Prejudicial to creditors. The general rule is that gifts or settlements made by a debtor are fraudulent and can be set aside by the creditors. Gifts or settle- 1 Williams Ex. 296 et seq. * Id. 337 et seq. 3 2 Kent Comm. 429 et seq. 4 2 Kent Comm. 440. 88 A REVIEW IN LAW AND EQUITY. ments made by a person who is free from debt at the time, but who afterwards becomes indebted, are valid, unless made with the intention of defrauding future creditors. 1 b. Unless the donor was under some legal incapacity, as infancy. c. Unless the gift was induced by intimidation or fraud. Gifts causa mortis are gifts made in apprehension of death. They are revocable by the donor in event of his recovery. The rule in regard to delivery is the same as in gifts inter vivos. Symbolical delivery may be good when no other delivery is, under the circumstances, possible, as the delivery of the key of a room containing furniture. 2 At common law it was a doubtful question whether bonds, bills of exchange, promissory notes, and other choses in action could be the subjects of a gift causa mortis, but the question is well settled in the affirmative in this country. 3 1 2 Kent. Comm. 440. 8 Id. 444-447 ; 2 Schouler Per. P. 159, 162. 3 Id. 447 ; Id. I47 . CHAPTER XVIII. CONTRACTS GENERAL PRINCIPLES, PARTIES, ETC. A contract is an agreement between two or more persons, upon a sufficient consideration, to do, or not to do, a particular thing. 1 Contracts may be divided into 1. Contracts under seal, called specialties, and 2. Contracts not under seal, called simple contracts. Contracts may be further divided into 1 . Parol contracts, or those made orally, and 2. Written contracts, or those expressed and con- tained in some writing. Contracts may also be divided into 1. Express, or those formed by direct act of the parties, and 2. Implied, or those which are presumed by the law to exist from the relations of the parties. Implied contracts are of two kinds, (a) Those implied in fact. Thus, if A orders and receives goods from B, nothing being said about the price, the facts warrant the infer- ence of an agreement on the part of A to pay B reasonable price. That is, the conduct of the parties proves the contract, while in express contracts the contract is proved by their language. (b\ Contracts implied in law. See Quasi-Contracts. There are four essentials of every good contract. 1. Parties able to contract. 2. A sufficient consideration. 3. Parties willing to contract. 1 2 Bl. Comm. 442 ; Sturges v. Crowninshield, 4 Wheat. 197. (89) 90 A REVIEW IN LAW AND EQUITY. 4. An actual meeting of the minds (Assentio men- tium). The following parties are unable to form a binding contract : (a) Infants, (b) married women, (c) idiots and lunatics. ""A distinction is to be observed between void and voidable contracts. The former are incapable of ratifi- cation ; can never be made the subject of an action at law. The latter are capable of ratification, and when so ratified are binding. The contracts of an infant are voidable. 1 If ratified by him in an unmistakable man- ner, upon becoming of age, they are binding. The following contracts of infants are, however, binding. (i). Contracts for necessaries? (2). Contracts for necessaries furnished a wife.* The infant is not, however, liable for necessaries furnished to his intended wife in preparation for mar- riage. As a general rule, at common law, the contracts of a married woman were void. 4 If, however, a separate estate had been settled on her, she was in equity re- garded as a feme sole with regard to that, and con- tracts made with direct reference to such an estate or for its benefit were binding. 5 A deed made by a wife was absolutely void, though a deed made to a wife be- came valid upon ratification by the husband." The statutes of most States have entirely altered the com- mon law, and, with limitations varying with the dif- ferent States, marriage does not affect her ability to contract. The contracts of idiots are void, as there is no capac- 1 Met. Contr. 45 ; i Par. Contr. *2Q4. a 2 Par. Contr. *2g6. 3 Id. ; i Chitty Contr. 197. 4 I Par. Contr. *34$. i 5 2 Kent Comm. 164. 6 2 Bl. Comm. 292. CONTRACTS GENERAL PRINCIPLES, PARTIES, ETC. 9 1 ity to assent. A contract made during lunacy can be ratified, if the lunatic is restored to mental sound- ness. 1 Parties must be not only able, but WILLING TO CONTRACT. Contracts made under any form of illegal duress are voidable. A contract made by a person legally imprisoned, for the purpose of securing his re- lease, is binding. 3 Contracts made in a state of intoxi- > cation such as to deprive the person of the ordinary use of his faculties are voidable? No contract can be VALID WITHOUT A SUFFICIENT CONSIDERATION. Considerations are of two kinds, good and valuable. 1. A valuable consideration is one that is a benefit to the promisor, or an injury to the promisee. 2. A good consideration is love or natural affec- tion. 4 In order to bind third parties, the consideration must be valuable. Contracts with good considerations are binding only as between the parties.* Marriage is a valuable consideration, i. e., a contract made in con- sideration of marriage is binding as to third parties.' In the case of contracts under seal, and of negotiable instruments in the hands of a third party, the law implies a consideration, whether there be actually a consideration or not. In the case of sealed contracts, the law presumes a consideration only as between parties and their privies, not as regards third parties. 7 There must be an actual agreement of the parties, an actual meeting of the minds ; otherwise there is no contract. In the case of contracts made by mail, the 1 See i Chitty Contr. 187 ; i Par. Contr. *383. * 2 Kent Comm. 453 ; Met. Contr. 26 et seq. 3 2 Kent Comm. 451, 454 ; I Chitty Contr. 192. 4 2 Kent Comm. 464, 465 ; i Chitty Contr. 27. 5 i Par. Contr. ^432. 6 Id. *43i, and cases cited. " i Par. Contr. *42? ; 2 Kent. Comm. 465 ; Walker Am. Law 414. 92 A REVIEW IN LAW AND EQUITY. general rule is that the assent of a party making a proposition by letter is supposed to continue until the other party has received the letter. 1 Thus, if A in New York makes by letter an offer of certain goods at a certain price to B, in San Francisco, A's consent is presumed to continue until the letter has reached B, and if B accepts and signifies his acceptance by a letter, the contract is completed upon the mailing of the letter. A subsequent retraction on the part of A would not affect the validity of the contract. It is not necessary that the consideration be adequate in value. Any benefit to the promisor, however slight, if of any legal value, and any damage, inconvenience, or loss to the promisee, are sufficient to support the contract. 3 An executed consideration will not support a sub- sequent promise, unless the consideration were exe- cuted at the request of the promisor, either express or implied. Thus, if A voluntarily, without any request on B's part, gives to B one hundred dollars, a subse- quent promise by B to repay A will be void, there be- ing no consideration for the promise. But if B had asked A to give him one hundred dollars, a subsequent promise of repayment on the part of B would be binding. There are three cases, however, in which, in order to support an executed consideration, the request is implied, if it was not made expressly. 3 i. Where the consideration consists in the plaintiffs having been compelled to do that to which the defend- ant was legally compellable, as when A, a surety, who has been damnified, brings an action to recover indemnity from his principal B. Here the law pre- sumes a request from B to A to pay the amount, and a promise from B to reimburse A. 1 r Par. Contr. *4%3. * Met. Contr. 191. 3 i Chitty Contr. 69 et seq. CONTRACTS GENERAL PRINCIPLES, PARTIES, ETC. 93 2. Where the defendant has adopted and enjoyed the benefit of the consideration. Thus, if A, without the authority or request of B, should make a wagon for the latter and leave it on his premises, and B should use the wagon, the law would presume both a re- quest from B to A to build the wagon, and a promise to pay for it. Upon this principle depends the right of a publisher to recover for publications sent and not returned by the person to whom they were sent. 3. When the plaintiff voluntarily does that to which the defendant was legally compellable, and the defend- ant afterwards, in consideration thereof, expressly promises to reimburse the plaintiff, thus if A pays a debt owed by B, a promise by B to recompense A would support an action against B. The FOLLOWING FOUR CLASSES OF CONTRACTS ARE VOID : immoral, illegal, impolitic, fraudulent. a. Immoral contracts are such as contravene the well-established principles of morality, as an agreement in consideration of future illicit cohabitation.' b. Illegal contracts include immoral contracts and all other contracts which tend to any violation, of the law of the land, as a contract for the violation of revenue laws, or a promissory note given for a gambling con- sideration. 11 c. Impolitic contracts are such as contravene sound public policy, as marriage brocage contracts, contracts in general restraint of trade ; contracts in general re- straint of marriage. Marriage brocage contracts are agreements to pay third persons for procuring a marriage, through their influence with one of the parties to the match.' Contracts in general restraint of marriage are void ; otherwise, with contracts in partial restraint. Also, 1 Walker Am. Law 455 ; 2 Chitty Contr. 979- 3 See 2 Chitty Contr. 971 et seq. 3 Id- 988. 94 A REVIEW IN LAW AND EQUITY. legacies on condition that the legatee does not marry, are construed as unconditional legacies. 1 Contracts in general restraint of trade, with no limits to the space or time within which the trade or occupa- tion is not to be exercised, are void. Also any un- necessary or unreasonable restraint, though with space or time limits, is void. Thus, it has been held that a contract not to engage in the teaching of French in the State of Rhode Island is void, in that a general pro- hibition was not essential to the protection of the plaintiff, nor reasonable for him to ask.* d. All contracts tainted with any species of fraud are void. The principles governing fraud will be stated under Equity. The lex loci contractus (law of the place of the con- tract) controls the nature, construction, and validity of the contract. As a rule, contracts valid in the place where they are made, are valid everywhere? If, how- ever, a contract made under one government is to be performed under another, and the parties had in view the laws of the second government in regard to the ex- ecution of the contract, the lex loci solutionis (law of the place where the contract is to be executed) prevails. Thus, the days of grace allowed upon bills of exchange are computed according to the law of the place in which it is to be paid, not of the place where it is drawn.* The lex fori (law of the forum, or of the place where an action is brought) governs and controls the remedy to be pursued upon breach of contract. It has been decided that the statute of limitations is a part of the lex fori? Thus, if an action is brought upon a con- 1 Met. Contr. 267 ; i Story Eq. Juris. 280 et seq. 2 2 Par. Contr. *748 et seq. ; Herreshoff v. Boutineau, 17 R. I. 3. 3 2 Kent Comm. *455. 4 Id. *459 ; Pomeroy v. Ainsworth, 22 Barb. 118. 8 Id. *4&2 ; 2 Par. Contr. *5gi. CONTRACTS GENERAL PRINCIPLES, PARTIES, ETC. 95 tract, in a State where the period of the statute of limitations operating upon that species of contract is five years, and the contract was made in a State where six years is the statutory period within which an action can be brought, the law of the first State controls in this respect. I/ CHAPTER XIX. SALES. I. A sale is a contract for the transfer of property from one person to another in consideration of some price, or recompense in value. When goods are given in exchange for goods, the transaction is called barter. 1 There are three points to be considered in every sale the thing sold, the price, the consent of the con- tracting parties. 3 1. The thing sold must have an actual or possible ex- istence, be specific, or identified, and capable of de- livery. If A sells a house to B, and at the time of the sale the house had been burned, unknown to the parties, the sale is void, provided the house and n,ot the land was the inducement to the contract. In case the vendor is unable to give a good title to the whole of the property sold, whether it be land or chattels, the rule is, that if the defect of title is so great as to render the thing sold unfit for the use in- tended and not within the inducement to the purchase, the purchaser is not held to the contract, but is at lib- erty to rescind it. 3 2. The PRICE must be real, and not merely nominal, and must be fixed, or capable of being ascertained by the method prescribed in the contract. 4 3. For mutual consent see page 91. 1 2 Bl. Comm. 446 ; Benj. Sales 2. a 2 Kent Comm. 468 ; see Benj. Sales I. 3 2 Kent Comm. 468, 475. 4 Id. 476 ; see Benj. Sales 85 et seq. (96) SALES. 97 Warranties are of two kinds, express and implied. The only implied warranties which are generally ac- cepted as such are those of title, that when a sale is made by sample the bulk of the goods corresponds in quality to that of the sample, and that when goods are ordered by description they should correspond to the description of the goods ordered. The mere expres- sion of judgment or opinion does not amount to a warranty. 1 Defects are of two kinds, latent and patent. A latent defect is one which is not evident upon exami- nation, and which only the use of and experience with the article can bring to light. A patent defect is one that is apparent upon exami- nation. The maxim caveat emptor (let the purchaser beware or be on his guard) applies to patent defects, and to such latent deTects as are mutually unknown, but not to defects known to the vendor only. These must be made known by the vendor to the vendee. 2 In case of a breach of warranty the vendee has two remedies. He may return the property and sue to re- cover the purchase-money, or he may keep the prop- erty and sue to recover the difference between the actual value of the property and the purchase-money.' An action lies by the vendee against a third party, who, by false representations in regard to the thing sold, has induced the vendee to buy. Also, an action lies by the vendor against a third party who has induced him to give credit to the vendee by false representations, resulting in loss to the vendor. 4 Delivery. When the bargain is completed and 1 z Kent Comm. 478 etseq. 486 ; Benj. Sales 600, 627, 645, 648. s Id. 482 et seq.; Id. 611, 616. So far as the writer knows, the rule of caveat emptor has not been formulated in precisely this language, but it is believed to be deducible from the authorities, including others than those cited. 3 2 Kent Comm. 480. 4 Id. 488 ei seq. 98 A REVIEW IN LAW AND EQUITY. everything that the vendor has to do with the goods has been done, the contract of sale becomes absolute and delivery is not necessary as between the parties, to pass the title. 1 The vendee is entitled to the goods upon payment of the price. If sold upon credit, he is entitled to them at once. When actual delivery is impossible, as in the case of logs in a river, symbolical delivery is suf- ficient. Delivery of goods to or by an agent is equiva- lent to delivery to or by a principal.* Place of delivery. If no place of delivery is speci- fied in the contract, the goods are to be delivered where they are at the time of the sale. 3 The statute of frauds, designed for the prevention of frauds and perjury, was passed in 29 Chas. II. (1677). It enumerates certain classes of contracts, which must be in writing, in order to be made the sub- ject of an action, and Sec. 17, Chap. III., which has been substantially adopted in this country, provides that no contract for the sale of goods for the price of ten pounds or upwards shall be good unless the buyer shall accept part of the goods so sold and actually re- ceive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by the parties to be charged, or their agents thereunto lawfully authorized. The statute of frauds as existing in the State where the student is examined, should be carefully learned by him, and an examination of the leading decisions under each section made. The statements made in the section quoted in regard to delivery apply to the delivery essential to take a con- 1 2 Bl. Comm. 448 ; 2 Kent Comm. 492. * Id. 492, 493, 499, 500 ; Benj. Sales 677, 696. 3 2 Kent Comm. 505, and cases cited. SALES. c,9 tract out of the statute of frauds. A partial delivery is sufficient for this purpose. 1 The payment of earnest money does not entitle the vendee to possession ; it merely takes the contract out of the statute. 2 The property does not pass to the vendee until the articles have been separated from the common stock, and are ready for delivery. 3 Thus, if A buys of B a certain amount of cloth, and pays for it, and before the cloth has been set apart or cut from the rest, the whole is destroyed, the loss falls on B, and A can re- cover the amount paid to B. The contrary would be true if the cloth had been separated from the mass and prepared for delivery. FRAUD AS AFFECTING SALES. As a rule, all contracts tainted with fraud can be set aside. In all cases of sales the contract must be bona fide, and upon a valuable consideration. In case a vendee procures goods with no intention of paying therefor, the vendor can treat the sale as void and re- plevy the goods. 4 In the case of a sale accompanied by an agreement that the vendor shall remain in possession of the thing sold, two rules exist. i. That such retention of possession gives rise to a conclusive presumption of fraud. 2. That while such retention is evidence of fraud, it is not conclusive evidence, but is capable of being re- butted. 4 Stoppage in transitu is the right which the vendor, who sells goods on credit, has to resume the pos- 1 Mills v. Hunt. 20 Wend. 431. J 2 Kent Comm. 496. 3 Id. For review and classification of cases, see Benj. Sales 334, note, 4th Am. Ed. 4 Benj. Sales 428 ; 2 Kent Comm. 512 ; Benj. Sales 440, note, 4th Am. Ed. : Id. for effect of insolvency. 5 See 2 Kent Comm. 515 et seq. 100 A REVIEW IN LAW AND EQUITY. session of the goods while in the hands of a middle- man or carrier, in transit to the vendee, on the latter's becoming insolvent. The exercise of this right does not rescind the con- tract, and the assignee of the vendee is entitled to re- ceive the goods from the vendor, on tender of the price. 1 The vendor can assert this right as against any gen- eral lien that the middle-man may have against the vendee, but not as against the special lien which he has for carrying the particular thing in question. 2 The right can be defeated in two ways. a. By delivery to the vendee or his agent ; but the goods must have arrived at their actual destination. The test is whether the goods have arrived at a place where they are under the direction and control of the vendee or his agents. 3 b. By the vendor's having given to the vendee instru- ments sufficient to transfer title to the property, as bills of lading, if the vendee, on the strength of these docu- ments, sells the property. 4 Thus, A ships goods to B, and sends the bill of lading by mail, B indorses it to C, who purchases the goods in good faith. A's right of stoppage in transitu is gone as against C. 1 2 Kent Comm. 542. 2 Id. ; 3 Par. Contr. *242. 3 Id. 544 et seq. ; I Par. Contr. *6oi et seq. * Id. 548 ; Id. *6o6. CHAPTER XX. BAILMENTS. Bailment is a delivery of goods in trust, upon a con- tract, express or implied, that the trust shall be duly executed and the goods restored by the bailee, as soon as the purpose of the bailment shall have been an- swered. 1 There are five kinds of bailment : depositum, man- datum, commodatum, pignus, locatio. I. Depositum is a bailment of goods to be kept by the bailee for the bailor, and restored on demand, without recompense? The consideration is the disad- vantage to the bailor arising from being out of posses- sion of his property. 3 The bailee is to keep the goods with reasonable care, and is liable only {Q* gross neglect, or the want of care which every sensible man, under the circumstances, would take of his own property. 4 There are three cases in which the responsibility of the bailee is increased, and he is liable for ordinary neglect? 1. When he specially promises to keep the goods safely. 2. When he voluntarily and without request, volun- teers to keep the goods of another. 3. When the bailee receives compensation. This is not strictly an instance of deposit, but it differs only in 1 2 Bl. Comm. 451 ; Trunick v. Smith, 63 Pa. St. 18, 23. 8 2 Kent Comm. 559 ; Story Bailm. 4. 3 2 Par. Contr. *gg et seg. 4 Story Bailm. 62, 64 ; 2 Kent Comm. 559. 8 Id. 565. 102 A REVIEW IN LAW AND EQUITY. the nature of the consideration. The ordinary in- stance is that of warehousemen. II. Mandatum is when one undertakes, without recompense, to do some act for another in respect to the thing bailed. 1 Where one merely undertakes to carry an article from one place to another, he is liable only for gross neglect. When, however, he undertakes to do some work relating to it, he must use a degree of care suitable to the work, and adequate to its perform- ance. 2 The mandatary is not liable for non-feasance, that is, for a total omission to do the promised act in regard to the thing bailed ; but when once he has started to do it, he is liable for misfeasance, that is, the improper doing of the thing promised to be done. 3 III. Commodatum is the bailment or loan of an article for a certain time, to be used by the borrower without paying for its use. 4 Here, the bailee is held to the highest degree of care, and is liable for slight negli- gence.' The ordinary expenses attendant on the thing must be borne by the borrower ; the extraordinary expenses, or those arising from the inherent defects of the thing, by the lender. 6 IV. Pignus, or PLEDGE, is the bailment, or delivery of goods by debtor to creditor, to be kept till the debt is discharged. 7 In this case the debtor is called the pawnor and the creditor the pawnee. The pawnee is bound to take ordinary care of the thing pawned, and is liable for ordinary neglect. 8 In case any profit arises to the pawnee, while in possession of the pawn, he must account for the same to the pawnor.' 1 See Story Bailm. 137 ; Jones on Bailm. 117. 2 2 Kent Comm. 569 ; Coggs v. Bernard, 2 Ld. Raym. 909. 3 Id. ; Story Bailm. 165. 4 Jones Bailm. 118, 217 ; 2 Kent. Comm. 573. 5 Story Bailm. 237. 6 2 Kent Comm. 577. 1 Jones Bailm. 117. 8 Story Bailm. 332. ' Id. 343. BAILMENTS. 103 If the pawn is not redeemed at the specified time, the pawnee can pursue one of three courses. 1. He can proceed directly against the pawnor, with- out looking to the pawn. 2. He can bring a bill in equity and secure a sale of the property by order of court. 3. He can proceed to sell the property himself upon giving due notice to the pawnor. 1 A pledge differs from a mortgage of personal prop- erty in two particulars. 1. The pawnee has only a special property in the thing pawned, the general property being in the pawnor; while the mortgagee has the general property, the mortgagor having merely a right to redeem. 2. The pawnee has possession of the pledge; other- wise with the mortgagee. 2 V. Locatio (letting) is a contract by which the use of a thing, or labor or services about it, are stipulated to be given for a reasonable compensation, express or implied. This bailment is of three kinds." A. Locatio rei (letting of the thing), by which the hirer, for a compensation, gains the temporary use of the thing. The hirer is bound to use ordinary care, and is liable for ordinary neglect. He has a special property in the thing hired. In case of loss or injury, the bailor must prove want of due care on the part of the bailee. 4 The bailee can use the property only for the purpose for which it was hired? Thus, if A hires a horse with which to go to B, and he goes to C in- stead, he is liable in trover for conversion, and for any damage arising from going to C. B. Locatio operis faciendi (letting of work to be done) is where work and labor are to be bestowed on the 1 2 Kent Comm. 582. * Story Bailm. 287. 3 2 Kent Comm. 586. * Id. 587 ; Story Bailm. 405, 410. 6 Id. 413- IO4 A REVIEW IN LAW AND EQUITY. thing delivered for a pecuniary recompense. The bailee is liable for ordinary neglect, and must apply a degree of skill suitable to his undertaking. 1 In the case of an inn-keeper (treated by Mr. Story under Locatio custodies), the liability is greater than in the case of other bailees of this class. He is held to the highest degree of responsibility. He is an insurer of the goods of his guest, and he can only limit his lia- bility by express agreement or notice. Whether the notice is a reasonable and valid one is to be determined by the courts. Thus, it is held that the ordinary regu- lation requiring guests to deposit valuables in the hotel safe is a reasonable one, and guests suffering loss from a neglect to do so, have no remedy against the inn-keeper. 8 This high degree of liability attaches to an inn- keeper only, not to a lodging or boarding-house keeper. In the latter instances, the landlord makes a separate contract with each guest, while an inn is a house, the owner of which holds out that he will receive all travellers who are willing to pay a price adequate to the sort of entertainment provided, and who come in a situation in which they are fit to be received. 3 The local statutes should be consulted by the student on this subject. C. Locatio operis faciendi mercium vehendarum (the letting of the work of carrying goods) is a bailment by which one person undertakes to carry goods from one place to another for a pecuniary recompense. The contract has special relation to common carriers. A common carrier is one who undertakes for hire to transport the goods of such as choose to employ him from place to place/ The liability is of the high- 1 Story Bailm. 429, 431. 2 See 2 Par. Contr. *I46, *I49, note, and cases cited, 8th Ed.; 2 Kent Comm. 594. 3 2 Par. Contr. *isi. 4 Dwight v. Brewster, i Pick. 50. BAILMENTS. IO5 est order. Common carriers are responsible for all in- juries to, or losses of goods, except those arising from the act of God, or the public enemy. By the act of God is meant any agency operating without the aid or interference of man. 1 By the public enemy is meant those persons with whom the State or Nation is at war.* The term does not include a mob ; therefore common carriers are liable for injuries to property which they hold as common carriers, arising from such a source. The liability of a common carrier BEGINS when the goods come into his custody, as by delivery at the freight-house of a railroad. 3 There are TWO RULES which have been adopted by the courts TO DETERMINE WHEN THE LIABILITY as a common carrier ENDS : 1. It is held to end when the goods have reached their destination and transportation has ceased. Thus, if goods are shipped from the city of A to the city of B, the liability as common carrier ends when they reach B, and are stored in the freight-house, or a reasonably safe place. 4 2. The liability as common carrier continues not only until the goods have reached their destination, but until the consignee has had a reasonable time in which to remove them, 5 and there is some authority for holding that the carrier is bound to give notice to the consignee of their arrival.' If the goods are not re- 1 2 Par. Contr. *i5g, *i6o. 2 Id. *i63. 3 Id. *i?6. 4 Rice v. Railroad Co., 98 Mass. 212 ; Bausemer z/. Railroad Co., 25 Md. 434 ; Richards v. Railroad Co., 20 Hi. 404. 5 Moses v. Railroad Co., 32 N. H. 523 ; Mills v. Railroad Co., 45 N. Y. 622. 6 Herman v. Goodrich, 21 Wis. 536 ; McDonald v. Railroad Co., 34 N. Y. 497. Such is apparently the English rule. Mitchell v. Rail- road Co., 10 L. R. Q. B. 256; Railroad Co. v. Swaffield, 9 L. R. Ex. 132. IO6 A REVIEW IN LAW AND EQUITY. moved within a reasonable time, the carrier's liability becomes merely that of a warehouseman? Liens. The common carrier has a lien on the goods for his freight. A lien is the right to retain possession of personal property for the satisfaction of some charge in relation thereto. 2 Liens are of two kinds, general and special. They arise in three ways : 3 1 . By express contract. 2. By general course of dealing. 3. From the particular circumstances of the dealing between parties. A general lien is one which can be enforced on goods in possession for the satisfaction of the balance of an account. A special lien is one which can be enforced on goods in possession only for charges in relation to those par ticular goods. Special liens are favored, general liens not. 4 A common carrier has a special lien and can probably create a- general lien by express contract. 5 Liability of the carrier beyond his own route. The general rule is, that no responsibility as a carrier is cast upon the carrier beyond his own route, unless the usage of business, or of the carrier, or his conduct or language, shows that he takes the parcel as carrier for the whole route. The receipt of payment for the whole route, is strong evidence of such an undertaking.' Common carriers of passengers. The common carrier is liable for injuries to passengers arising from the slightest negligence on its part. 7 As a rule, con- tributory negligence on the part of the passenger re- leases the carrier from liability. 8 As in the case of 1 z Par. Contr. *iQ7. 2 Bouv. Law Diet. sub. Lien. 3 2 Kent Comm. 634. 4 Id. 5 Rorer, Railroads, 1311 ; Jones, Liens 265. 6 2 Par. Contr. *2i$. ' Id. 219. 9 Marble v. Ross, 124 Mass. 44. BAILMENTS. goods, so in that of passengers, the common carrier is bound to receive all who in a suitable condition offer themselves. The carrier's liability to a passenger be- gins when the latter enters the premises of the carrier with the intention of taking passage, and ceases when he has left the premises at the end of the journey. 1 The carrier is liable for injury to baggage, as in the case of other goods, provided the baggage consists of such things as are essential to the personal needs of the passenger. The fare paid by the passenger includes payment for the transportation of personal necessaries as baggage. Whether an article may properly be car- ried as baggage is a question of fact, to be determined by the circumstances of each case. When baggage reaches its destination, the rules governing the carrier's liability are identical with those prevailing in the case of other goods. 2 Regulation of common-law liability by contract or notice. The carrier can by contract, or by notice equivalent to contract, exempt himself from any lia- bility for damage not caused by his own negligence or default. The carrier cannot by contract, or notice equivalent thereto, protect himself from liability for the conse- quences of a wilful default or tort. The weight of authority is against the proposition that the carrier can exempt himself from all liability for the consequences of his own negligence. 3 1 -2 Wood, Railroads, 1205, 1218. 2 2 Par. Contr. *igg ; Schouler Bailm. 667, 672, 692. 3 2 Par. Contr. *25o. CHAPTER XXI. AGENCY GENERAL CLASSES OF AGENTS. Agency is founded upon a contract either express or implied, by which one of the parties confides to the other the management of some business, and by which the other assumes to do the business. 1 Agents are of two general kinds : General agents and special agents, 1. A general agent is one empowered to transact all the business of his principal of a particular kind. 2. A special agent is one empowered to do only some particular act for his principal. 2 As a rule, the acts of an agent bind the principal when done within the scope of his authority. The acts of a general agent; will bind the principal if they are within the general scope of the authority of agents of that class, though they may be contrary to the express instructions of the principal. The general agent derives his power both from his principal and from the usage which invests agents of his class with certain powers. A special agent, on the contrary, derives all his power from his principal, and any act done contrary to the instructions of his princi- pal is voidable as regards the principal. The person dealing with a special agent must look to his authority as delegated by the principal ; otherwise, he acts at his peril. 3 Thus, if A sends flour to B, a flour factor, with in- structions to sell at $6.00 a barrel, and he sells at 1 2 Kent Comm. 614. * I Par. Contr. *4i. 3 2 Kent Comm. *b2oet seq. ; I Par. Contr. *42. (108) AGENCY GENERAL CLASSES OF AGENTS. 109 $5.00; this sale binds A, because it is within the gen- eral scope of a factor's authority to sell the goods sent by a principal. But if A sends flour to B, a horse- dealer, with instructions to sell at $6.00, and he sells at $5.00, the sale is voidable, because, being a special agent for the sale of the flour, he derives all his power from the instructions of his principal, and any act con- trary to them is voidable by the latter. The purchaser in this case must ask for evidence of the agent's au- thority to sell at the proposed price, if he wishes to act with security. Neither class of agents ordinarily has power to appoint sub-agents. 1 How created. The contract of agency may be created in three ways: by parol, by writing, by implica- tion from the acts and relations of the parties. Au- thority to make an instrument under seal must, how- ever, be itself given by an instrument under seal. 2 An act of the agent, though in excess of his authority, may be ratified by the principal, and it is then as binding as though made originally with authority. When agent is personally liable. When the agent acts within the scope of his authority his acts bind the principal, and no liability is incurred by the agent. The agent, however, becomes personally liable in four cases. 3 i. When the principal is unknown, or the agent holds himself out as the principal. In this case, the real principal can take advantage of the acts of his agent, and can call upon the third party to carry out con- tracts made with the agent on the supposition that he was the principal. In a suit brought by an undis- closed principal against a third party, the latter can set offzny claim which he may have against the agent with whom he dealt, supposing him to be the principal. 4 1 i Par. Contr. *86 ; 2 Kent Comm. 633. * Id. 614, 615. 3 2 Kent. Comm. 629 et seq. ; i Par. Contr. *&4 tt seq. 4 2 Kent Comm. 633. IIO A REVIEW IN LAW AND EQUITY. 2. When there is no responsible principal. 3. When the agent makes an undertaking in his own name, as if A, an agent, should make a note reading " I promise to pay " and should sign it A, agent for B. 4. When the agent exceeds his powers. There is a distinction between public and private agents on the point of personal responsibility. If an agent, on behalf of the government, makes a contract and binds himself as such, he is not personally bound, though the terms of the contract be such as would bind him if acting as a private agent. 1 Agency, how terminated. Agency may be termi- nated in six ways. 8 1. By the death of the agent. 2. By the death of the principal. 3. By the limitation of the agency to a particular time. 4. By the completion of the business for which the agent was appointed. 5. By revocation of the power by the principal. The principal can do this whenever he wishes, except in the case of an agency coupled with an interest in the busi- ness of the agency. 3 6. By a change in the state or condition of the prin- cipal, as by insolvency. Classes of general agents. There are four chief classes of general agents : attorneys, auctioneers, brokers, and factors. i. Attorneys have a general lien upon the papers of their clients, and a special lien on the funds recovered in any particular case 4 . They have no power to settle claims except by the express authority of their clients. 5 For relations between attorney and client, see Equity. 1 2 Kent Comm. 633. * Id. 643 et seq. 3 I Par. Contr. *6g. 4 2 Kent Comm. 640, 641. 5 Mechem Agen. 813, and cases cited. AGENCY GENERAL CLASSES OF AGENTS. Ill 2. An auctioneer in possession of goods has an inter- est coupled with the possession. He has a special prop- erty in the goods, and a special lien on them for the charges of the sak and his commission. The auc- tioneer is the agent of both buyer and seller, and his memorandum of sale is sufficient to take a sale out of the statute of frauds. The contract is completed when the hammer falls, this act of the auctioneer as agent of both parties completing it. 1 The general rule in regard to puffers, or persons em- ployed by the vendor to enhance the price of goods sold at auction, is that the employment of such bidders voids the sale. The proper method is to announce, be- fore the opening of the sale, the minimum price which will be accepted. 2 3. Brokers are persons employed to make bargains between their principals and third parties. When a bargain is concluded it is customary for the broker to give the vendee a " bought note," or a brief statement of the property sold, price, etc., and to the vendor a " sold note " containing substantially the same matter as the "bought note." If these notes agree they form indisputable evidence of the contract. If they conflict, parol evidence can be introduced to show the real con- tract. 3 4. Factors. The terms broker and factor are often used synonymously, but a factor differs from a broker in two respects. a. He has the goods of his principal actually in his possession ; the broker does not. b. As a result the factor has a general lien on the goods as being in his possession. 4 A factor can do all 1 2 Kent Comm. 537, 540 ; Mechem Agen. 893. 2 2 Kent Comm. 538; i Par. Contr. *4g6. 3 I Par. Contr. *54i, *542. 4 I Par. Contr. *gi, *gg. See Mechem Agen. 927, g86a. 112 A REVIEW IN LAW AND EQUITY. such acts in regard to the goods in his possession as are sanctioned by the general usages of trade. He can sell on credit, if such be the usage. He cannot, however, pledge the goods as security for his own debt, and any attempt to do so is null and void. 1 This rule is altered by statute in many States. A factor acting under a del credere commission is one who, for an additional premium or commission, becomes liable to his principal when, in a sale on credit, the pur- chase-money becomes due. It is an original contract and is not within the statute of frauds. Under this contract the factor is commonly regarded as becoming a surety for the solvency of the vendee, and a guarantor of the payment of the price for which the goods were sold. 2 Master and Servant. The general rules of agency govern in respect to master and servant. The master is responsible for all acts of the servant done within the scope of his authority? If a servant buys goods for his master on credit contrary to his in- structions, the master is bound if the servant had pre- viously bought goods on credit without remonstrance from the master, and if the vendor had no notice of the master's instructions to his servant. A master is liable for torts committed by a servant when in the perform- ance of his duty, as if a coachman employed in convey- ing his master from one place to another, negligently in- jure a traveller who is in no fault. The master is not liable for acts committed out of the course of his em- ployment, nor for wilful trespasses 4 The master is justified in making an assault in de- fense of his servant, and a servant in defense of his master.* 1 Mechem Agen. 994. 2 i Par. Contr. *gi. 3 2 Kent Comm. 259 , Schouler Dom. Rel. 489. 4 Id. 490, 491. 6 2 Kent Comm. 261. AGENCY GENERAL CLASSES OF AGENTS. 113 A master is bound to use all reasonable care, diligence, and caution in providing for the safety of those in his employ, and in furnishing for their use sound, safe, and suitable tools and machinery ; otherwise he is liable for any injury occurring to the employee through defects in the tools or machinery used, provide v/the employee is guilty of no contributory negligence* An employee cannot recover from his employer for in- juries resulting from the negligence of a co-employee. Co-employees are those who directly co-operate with each other in a particular business in the same line of employment, and whose usual duties bring them habit- ually together. 1 See Wood on Mas. and Ser. 329, 334, 345, 372. CHAPTER XXII. BILLS AND NOTES. A promissory note is an unsealed promise in writing by one person to pay another person therein named, or to his order or to bearer, a specified sum of money absolutely and at all events. 1 There are thus six essen- tials of every promissory note. 2 i. It must be certain that is, there must be a clear promise to pay. "2. It must be payable absolutely, unconditionally, and at all events. 3. It must be payable in money. 4. It must be for a certain and fixed amount of money. 5. It must be payable at a certain time, or at a time which is capable of becoming certain. Thus a note payable on demand, or at the death of A, is a good note ; while a note payable " as soon as the crop can be sold, or the money raised from any other source," is not a promissory note. 6. It must be delivered.* The following is a form fora promissory note largely in use : 1 i Dan. Neg. Ins. 28. 2 See Id. 30 et seq.; 3 Kent Comm. 75 et seq.; Story Prom. Notes 24 et seq. 3 Story Prom. Notes 56, n. (i 14) BILLS AND NOTES. 115 $100 NEW YORK, N. Y., Aug. 8, 1890. months after date, I (we) promise to pay to A B. or order (or bearer) one hundred dollars, with inter- est at % Value received. CD. Illustrations of possible indorsements on back of note. (See Story Prom. Notes 138.) 1. A. B. (Indorsement in blank.) 2. Pay to the order of E. \ F. r Indorsement in full. A. B. ) 3. Pay to the order of G. ) , TT E F \ Indorsement m full- 4. Pay to the order of I. \ J., without recourse. \ Qualified indorsement. G. H. 5. Pay to the order of M. 1 N. if he be living when ~ .... .. , \ Conditional indorsement, the note becomes due. i.j. j 6. Pay to the order of X. \ Y. on account of M. N. I Restrictive indorsement. M. N. i Parties to a note. Every note must have at least two parties, the maker or payor, as he is sometimes called, and the payee, or the party to whom or to whose order the note is payable. When a note is signed by two or more persons it is either joint, or joint and several. It is a joint note when written " We promise to pay " and signed by the parties. In case such a note Il6 A REVIEW IN LAW AND EQUITY. is not paid, all the makers must be joined in suit. A joint and several note is one written, " We jointly and severally promise to pay." In event of non-payment, the holder can sue the makers jointly or individually. In case one of several joint and several makers pays the whole amount, he can recover from the other makers their proportionate shares. 1 If the note be payable to bearer, title to it passes by mere delivery. If it be payable to order, when trans- ferred it must be indorsed in order that the holder can bring suit directly in his own name against the prior parties to the note. No particular form is essential in indorsement. In substance it consists in the payee's writing his name on the back of the note, 2 as illustrated on page 115. The indorsement of a note AMOUNTS TO A CON- TRACT on the part of the indorser with and in favor of the indorsee and of every subsequent holder. 3 1. That the instrument itself and the antecedent signatures thereon are genuine. 2. That he, the indorser, has a good title to the in- strument. 3. That he is competent to bind himself as an in- dorser. 4. That the maker is competent to bind himself and will pay the note upon presentment when it is due. 5. That if, when duly presented, it is not paid by the maker, he, the indorser, will upon due and reason- able notice given him of the dishonor, pay the same to the indorsee or other holder. Indorsements may be of five kinds in blank, in full, restrictive, qualified, conditional. 4 1 Story Prom. Notes 57; I Dan. Neg. Ins. 94. 9 Story Prom. Notes 116, 117, 120, 121. 3 Id. 135; i Dan. Neg. Ins. 66ga. 4 Story Prom. Notes 38-149; 2 Par. Bills and Notes 18-22. BILLS AND NOTES. 117 1. An indorsement in blank is when only the name of the indorser is written on the back of the note, no direction being given as to whose order the note is to be paid. Such an indorsement of a note payable to order gives it thereafter the force of a note payable to bearer, and title can thenceforth be transferred by delivery. The last holder can fill in above the in- dorsement in blank, a direction to pay to the order of himself, and can then treat the blank indorsement as made to him, and the indorser in blank becomes liable as though he had originally directed the note to be paid to the order of the last holder. (See indorsement I, page 115.) 2. An indorsement in full is when the name of the person in whose favor it is made is mentioned. (See Indorsements 2, 3, page 115.) 3. A qualified indorsement is one in which the in- dorser qualifies the duties and obligations of an in- dorser which he would otherwise incur under the gen- eral principles of the law. (See indorsement 4, page 115.) An indorsement without recourse relieves the indorser of responsibility in event of non-payment. It does not affect negotiability ; it merely cuts off subse- quent holders from any remedy against the indorser. 4. A conditional indorsement is one which involves some fact or event upon the occurrence of which the validity of the indorsement is ultimately to depend. (See indorsement 5, page 115.) 5. A restrictive indorsement is one in which the pay- ment of the note is restricted to a particular person, or for a particular purpose, or is made in favor of a person who cannot make a transfer of the note to another. It thus restricts the negotiability of the note. (See in- dorsement 6, page 1 1 5.) There is no limit to the number of indorsements which may be made on a promissory note. In case Il8 A REVIEW IN LAW AND EQUITY. the same note comes for a second time into the hands of the same holder with a number of indorsers and in- dorsees between the first and last appearance of his name on the note, he stands, with regard to the note, as though it had never left his possession ; and, in event of dishonor, he can look to any indorsers prior to the first appearance of his name on the note, but not to any subsequent indorsers; this to avoid circuity of action. 1 When, at the time a note is made, a party writes his name on the back without specifying in what capacity or for what purpose, he has been regarded by the courts in three lights as a joint maker, as a guarantor, as an indorser? In many States this matter is regulated by statute. An accommodation indorser is one who indorses a note for the benefit of the payee, to enable him to ne- gotiate it. With regard to subsequent holders, he does not differ from an indorser for value. 3 Consideration. A promissory note is presumed to be founded upon a valid and valuable consideration. Hence, in a suit between the original parties, or be- tween an indorser and his immediate indorsee the plaintiff is not obliged to prove a consideration, but the burden of proof rests upon the defendant to prove the contrary. 4 A promissory note is a contract ; and, as between immediate parties, it would be void if the consideration were immoral, illegal, impolitic, or if it were tainted with fraud, extorted by duress, etc. 5 But, with regard to subsequent holders, the rule is that a promissory note, not overdue, in the hands of an in- nocent purchaser for value, is valid as against all prior 1 Story Prom. Notes 151 ; see for explanation and limitation of the rule. 2 Par. Bills and Notes 30 et seq. * I Dan. Neg. Ins. 713 ; i Par. Contr. *25O. 3 2 Par. Bills and Notes 27. 4 Story Prom. Notes 181. 8 Id. 188, 189. BILLS AND NOTES. 119 parties on the note, regardless of the original considera- tion as existing between maker and payee. 1 There are two important exceptions to this rule. From public policy, all notes whose considerations are usurious, or which are given for gambling debts, are absolutely void in whatever hands they may be. a See local statutes on this subject. The consideration of a promissory note may be in- quired into in two cases. 3 1. As between the maker and \h& payee. 2. As between an indorser and his immediate indorsee. It cannot be inquired into as between 4 1. An innocent indorsee for value, and any prior in- dorser other than his immediate indorser. 2. As between an irtnocent holder and the maker. An accommodation note is one made without consid- eration for the benefit of the payee to enable him to negotiate it. Such a note does not differ from any other, so far as the rights of an innocent holder for value are concerned. 6 In case of the note on page 115, the consideration could be inquired into in a suit between A B, and C D, or G H and I J, but not in a suit on the note be- tween I J and C D, or I J and E F. If, however, an innocent purchaser for value takes a note after it is overdue, he takes it as a dishonored note, and subject to all the equities existing between the maker and payee, or any indorser and his im- mediate indorsee. That is, if such a purchaser brings suit on the note against the maker or indorser, the maker or indorser can set up any defense, such as lack of consideration, which he could set up against a 1 Story Prom. Notes IQI, 192 ; Tied. Comm. Paper 279. 2 Id. 192 : 3 Kent Comm. 79. 3 i Dan. Neg. Ins. i?4. 4 Randolph Comm. Paper 1885, 887 ; Tied. Comm. Paper 154. 5 3 Kent Comm. 56 ; see i Dan. Neg. Ins. 79- 120 A REVIEW IN LAW AND EQUITY. suit brought by the payee, or immediate indorsee ; Provided it is a defense arising from the transaction in- volving the note, and not from any independent trans- action. 1 Thus, if M, the purchaser of an overdue note, should sue A, the maker, the latter could not set off against M a claim which he held against B, the payee, arising from an independent transaction, though such a claim could be set off in an action by B against A. Presentment. So far as the maker is concerned, a note may be presented for payment at any time within the period which will, under the statute of limi- tations, act as a bar to any claim under it. But, in order to bind the indorsers, it must be presented to the maker for payment on the very day on ivhicli by law the note becomes due? Three causes only will constitute a sufficient excuse for failure to present for payment, and to give notice to indorsers in event of non-pay- ment. 8 1. Inevitable accident. 2. Irresistible force, such as war, or the forbidding of commercial intercourse with the maker's country. 3. Unforeseen occurrences, such as the prevalence of a malignant disease, which stops all business in the maker's place of abode. If a note is made payable on demand, payment must be demanded within a reasonable time* Consult local statutes in regard to this. A demand is not necessary prior to the bringing of suit on a demand note, unless so provided by statute. The statute of limitations runs against a demand note from the day of its date ; 5 against a note payable at 1 Story Prom. Notes 178 ; 3 Kent Comm. 91 ; i Dan. Neg. Ins. 744 et seq. 3 Story Prom. Notes aor. 3 See Id. 205, 356 ; i Dan. Neg. Ins. 478. 4 Story Prom. Notes 207. 5 Id. 29 n. BILLS AND NOTES. 12 1 sight, only after presentment. 1 No days of grace are al- lowed on a demand note ; otherwise on a sight note.' 1 In computing the time at which a note payable in so many days after date is due, the day of date is ex- cluded. 3 Thus, a note dated August 8th, and payable twenty days after date (without grace), would become due on August 29th. Days of grace are days of indulgence granted to the maker for the payment of a note. They are three in number, and the note becomes due and payable on the last day of grace. Days of grace are calculated exclu- sive of the day on which the note would otherwise be due. 4 Thus, in the note on page 115, if it were payable three months after date, it would, without days of grace, be due on November 8th. November gth would be the first day of grace, and November i ith the last, on which presentment should be made. Days of grace are counted consecutively without any deduction or al- lowance for intervening holidays or Sunday. 5 If the last day of grace falls on Sunday, or a holiday, present- ment should be made on the day preceding. When a note becomes due it should be presented for payment within reasonable hours. What are reasonable hours is to be determined by the customs and usages of the place of payment. If a particular place of payment is specified in the note, it should be presented at that place. Failure to present at the place does not, however, relieve the maker from lia- bility ; otherwise, with the indorsers." If the maker had funds at the appointed place, and the note is not presented at that place, the maker can- not be compelled to pay costs and damages in a suit on the note, and if the funds are at the appointed 1 Randolph Comm. Paper 1608. 2 Story Prom. Notes 224. z Id. 211. 4 Id. 217. 5 Id. 219. 6 Id. 226, 227, 230. 122 A REVIEW IN LAW AND EQUITY. place, as at a bank, and they have been lost by the failure of the bank, he is exonerated from any liability on the note. 1 In case no place of payment is specified in the note, it should be presented to the maker personally, or at his usual abode or place of business. Presentment should be made by the holder, or his duly authorized agent, and the demand for payment should be plain and unequivocal. 8 Proceedings upon non-payment. Upon the dis- honor of a note, it is the duty of the holder to gwzdue notice thereof to all prior parties on the note to whom he intends to look for payment. The notice must be given by the holder himself, or by a duly authorized agent. Notice by a party without interest in the note is void.* Notice of dishonor should be given personally to the party to be bound, as indicated above, if he resides in the same town as the holder ; otherwise, notice by mail is sufficient. Notice by mail in any case is sufficient if received. When the notice of dishonor is given by mail, it must be deposited in the post-office so as to leave by some mail on the day succeeding the day of dishonor? Thus, if a note becomes due August 7th, and payment is refused, notice of dishonor must be mailed on August 8th, so that it may start on its way on that day. Fail- ure to mail the notice within this time releases all the indorsers. If the holder wishes to hold all the indorsers, he sends a notice to them all ; otherwise, only to those to whom he looks for payment. Each indorser, upon re- ceipt of notice of dishonor, has the same time in which 1 Story Prom. Notes 227, 228. There is a conflict in this respect, however ; see Tied. Comm. Paper 310. 2 Id. 235, 242. 3 Tied. Comm. Paper 334~335 ; Story Prom. Notes 301. 4 Id- 337, 339 ; Id- 312, 319 et seq. NOTES AND BILLS. 123 to notify prior indorsers as the maker has, that is, practically one day. 1 Suppose A, B, C, and D are in- dorsers on a note falling due August 7th, and E, the holder, mails notice of dishonor to D on August 8th, D receives it on August 9th ; he must then send notice to C not later than August loth. B upon receipt of notice has until the day following in which to notify A. If the holder notifies all the indorsers, as A, B, C, D, and D pays the note, the notice given to the other indorsers by E inures to Us benefit, and he can look to them, or either of them, for reimbursement." If E notifies D alone, and in due time D notifies C, C noti- fies B, and B notifies A ; E can then look for payment to any of the indorsers, as A, since in case due notice is given, the first indorser will be ultimately liable. 3 The holder must give his notice, in event of dishonor, on the day following, no matter how many indorsers there may be. 4 Thus, E could not wait four days after dishonor and then give notice to the first indorser, A. When the notice is placed in the post-office, the party placing it has done all in his power, and it is imma- terial, so far as his rights are concerned, whether the party to whom it is directed receive it or not. 5 As regards the form of the notice, no precise form of words is necessary, but it should contain 8 1. A true description of the note. 2. An assertion of its &\\& presentation and dishonor. 3. An assertion that the holder, or other person giv- ing the notice, looks to the party to whom notice is given for reimbursement. The same causes as operate to excuse failure to pre- sent for payment will excuse a failure to give due and regular notice of dishonor. (See page 120.) 1 Story Prom. Notes 331. 2 Id. 302. 3 Id. 334. " Id. 332. 5 Randolph Comm. Paper 1300. 6 Story Prom. Notes 348- 124 A REVIEW IN LAW AND EQUITY. In the following special cases, the indorser is bound to the holder, without receiving notice of dis- honor. l 1. When the note was given for the accommodation of the indorser only ; as when A makes a note payable to B for the latter's accommodation, and the latter in- dorses and negotiates it. 2. An original agreement on the part of the indorser, made with the maker or other party, at all events to pay the note on maturity to the holder. 3. The receiving of security by an indorser from the maker or other party, to secure him against liability on the note. 4. An original agreement by the indorser to dispense with notice. 5. A release of a prior indorser by the holder releases all indorsers between the indorser released and the holder, 2 since otherwise they could look to the re- leased indorser for indemnity, in case they were com- pelled to pay the note. Such a release does not affect indorsers prior to the released indorser. 6. Any giving of time by the holder to the maker, by a binding agreement upon a note's coming due, will release the indofsers. 3 For the course to be pursued by the holder of a lost or destroyed note as against the maker or indorsers, see local statutes. Promissory notes (non-negotiable). A promissory note payable to a particular person, without containing any words of negotiability, may be assigned, and the pur- chaser can bring suit against the maker in the name of the assignee. If such a note is indorsed by the payee, the indorser incurs the ordinary liability of an indorser on a negotiable note, so far as his immediate indorsee is concerned, but there is no privity between him and 1 Story Prom. Notes 357. 2 Id. 423. 3 Id. 413. NOTES AND BILLS. 125 any subsequent holder of the note; 1 that is, each in- dorser and his immediate indorsee do not differ from the same parties to a negotiable note, but they have no privity with either prior or subsequent parties. The holder can, however, use the name of the payee in a suit against the maker. A bill of exchange or draft is a written order or re- quest by one person upon another to pay to some third party, or his order, or to bearer, a certain sum of money. The six essentials to a promissory note also apply to the case of a bill of exchange. There are three parties to every bill: the drawer, who corresponds to the maker of a note ; the drawee, or per- son to whom the bill is addressed, and who is requested to make the payment ; the payee, or person in whose favor the bill is drawn. 2 The bill may be made pay- able on demand, or at sight, or so many days after sight, or on a day certain. When a bill is payable at sight, or so many days after sight, the payee should present it to the drawee for ac- ceptance within a reasonable time. What is a reason- able time depends upon the circumstances of each case, unless regulated by statute. 3 When a bill is accepted by the drawee, he is called the acceptor, and becomes the party primarily liable. The indorsers on the bill stand in precisely the relation of indorsers on a note, while the drawer becomes a surety, and in event of non-payment by the acceptor, becomes liable to the holder of the bill. 4 After accept- ance, the acceptor can be released from liability in only two ways : s 1. By payment 2. By a release from the holder. 1 Story Prom. Notes 128 ; Tied. Comm. Paper | 242, 257!). 2 3 Kent Comm. 75. 3 i Par. Bills and Notes 377 : 3 Kent Comm. 83. 4 Id. 86. 5 Id. 126 A REVIEW IN LAW AND EQUITY. Acceptance may be of two kinds : 1. General, or according to the terms of the bill. 2. Special, or one varying the terms of the bill in some particular. A special acceptance binds the ac- ceptor, but the holder is not obliged to take a special acceptance. If he does so, it releases the drawer and indorsers from any liability on the bill. 1 Acceptance may be by parol or in writing. The common method is for the acceptor on presentation of the bill to write the word "accepted " with his signa- ture on its face. 1 The drawee has a reasonable time in which to accept the bill after it has been presented. This is largely regulated by statute. A promise to accept a bill, made before actual accept- ance, amounts to an acceptance in favor of the person to whom the promise is made, and who took the bill on the strength of it." If, upon presentation, acceptance is refused, the holder should give the indorsers notice, the rules governing the notice being identical with those hold- ing in case of notice to indorsers upon the dishonor of a note. If a third person, upon the refusal of the drawee to accept, intervenes and accepts the bill, it is called an acceptance supra protest. A holder is not obliged to accept an acceptance supra protest, but once accepted the acceptor supra protest becomes primarily liable, and if he pays the bill has his remedy against the prior parties to the bill. 4 Protest. Bills of exchange may be divided into two classes : i. Domestic, or those drawn and payable in the same country. 1 2 Randolph Comm. Paper 621 ; i Dan. Neg. Ins. 471. 4 3 Kent Comm. 84; i Par. Bills and Notes 281, 282. 8 Id. 84. 4 3 Kent Comm. '87. NOTES AND BILLS. 127 2. Foreign, or those drawn in one country and p&,y. able in another. In the case of a foreign bill, presentment must be made by a notary, and protest must be made by him i'j event of non-acceptance. As regards bills of exchange the States are regarded as foreign. 1 The rules regarding days of grace, etc., apply to bllb of exchange as well as notes. Bank checks partake largely of the nature of drafts, the bank being the drawee. A check should be pre- sented for payment within a reasonable time; otherwise any damage resulting from a failure to present, falls upon the payee, and not on the maker. 2 Thus if A, having funds in a bank, gives B a check upon the bank, and B does not present it for payment for a year, within which time the bank fails, the loss falls upon B, and he has no remedy against A. What is a reasonable time for presentment depends upon the circumstances in each case. Presentment for payment should be made as soon as possible. The giving of a check is not ordinarily payment, but only a means of enabling the payee to obtain the money with which to satisfy his claim. 3 1 3 Kent Comm. 93 ; i Par. Bills and Notes 642. 2 2 Dan. Neg. Ins. 1567, 1590. 3 Id. 1623. CHAPTER XXIII. PARTNERSHIP. I. THE NATURE, CREATION, AND EXTENT OF PARTNER- SHIP. Partnership is a contract of two or more competent persons, to place their money, effects, labor, or skill in lawful commerce or business and to divide the profit and bear the loss in certain proportions. The two leading principles of the contract are : 1. A common interest in the stock of the company. 2. A. personal responsibility for the partnership engage- ments. 1 Partners may be divided into four classes : a 1. General partners, or those who are held out to the world as such, and who are personally liable to the full extent of their property for the partnership debts. 2. Special or limited partners, or those who invest a certain amount in the capital of the firm, and whose liability as partners is limited to that amount. This subject is regulated by statute. 3. Dormant partners, or those who share in the profits of the firm, but have no active concern in its manage- ment, and who are not held out to the world as partners. 4. Latent partners, who differ from dormant partners only in that they are actively concerned in the manage- ment of the business of the partnership. The terms dormant and silent partners are sometimes used syno- nymously. Persons are partners as regards third parties, if one of two facts exists. 1 3 Kent Comm. 23, 24. * Story Part. 74, 75, 80. (128) PARTNERSHIP. 129 1. If they allow themselves to be held out to the world as such. 2. If they share in the profits of the firm, since, by sharing in the profits, they deduct so much from the funds to which the partnership creditors look. On this principle, dormant and silent partners are liable to the full extent of their property to partnership creditors. To make persons partners inter sese, an actual inten- tion to that effect is necessary. 1 Partnership may be created by parol as well as by writing, and can be inferred from circumstances? II. THE RIGHTS AND DUTIES OF PARTNERS IN RE- GARD TO EACH OTHER AND THE PUBLIC. In regard to their stock in trade, partners differ from joint tenants in that there is no right of survivorship, and from tenants in common, in that a partner can dis- pose of the whole stock in trade, while a tenant in com- mon can dispose only of his individual share. 3 If the capital stock be invested in land, the land is regarded as personalty so far as the creditors are con- cerned. If it is agreed between the partners that the land bought with the capital shall be regarded as per- sonal property, this agreement governs, and upon the decease of a partner, his share in the land will go to his personal representatives, as personal property. In the absence of such an agreement, there is a conflict of opinion as to whether the land will go to the heirs- at-law or the personal representatives. 4 (See statutes.) The acts of each partner in matters relating to the partnership are regarded as the act of all and bind all alike, each partner being regarded as the agent of the others in all partnership affairs. All acts done within the scope of this agency bind all 1 3 Kent Comm. 32. See i Lindley Part. *33 et seq. 2 Id. 28. 3 Story Part. 90. 4 Story Part. gc, 93- 130 A REVIEW IN LAW AND EQUITY. members of the firm. The question as to whether a particular act is within the scope of a part- ner's authority as agent, depends upon whether the act is appropriate or incident to the trade or business, according to the common course and usages thereof. Any private agreement or contract between the partners will not release partners from liability for the acts done by one of their number, unless such agreement were known to the parties dealing with the partner. Each partner is a general agent with regard to his copartners. 1 One partner cannot bind the others by an instrument under seal unless he has authority by a sealed instru- ment, except in two cases : 2 1. By a release given to a debtor upon payment of a claim. 2. By an instrument under seal, when the partnership is in bankruptcy. The majority of a firm acting in good faith, can bind the minority in ordinary transactions, when all have been consulted. 3 One partner can sell the whole stock in trade unless such stock be land, in which case he can dispose of his own interest only. 4 The admission of an antecedent debt by one partner, if made during the continuance of the partnership, binds all the partners and takes the debt out of the statute of limitations. 5 If one partner borrow money on the credit of the partnership, all the partners are liable, though the money be diverted by the borrowing partner to his own use. On the other hand, if one partner borrow money on his own credit, the partnership is not liable, though ' See 3 Kent Comm . 41 et seq. ; Story Part. 101, 102; i Lindley Part. *23& et sef. 2 Par. Part. 122, 123. See i Lind. Part. *278. 3 Story Part. 123. 4 Id. 94. 5 3 Kent Comm. 49. PARTNERSHIP. 13! the money be used for partnership purposes. The question in each case is to whom credit was given. 1 One partner is not permitted to deal on his pri- vate account in any business which is obviously at variance with the business of the partnership. 3 III. Dissolution. A partnership may be dissolved in six ways : 3 1. By the voluntary act of any partner. The pre- vailing rule is that any partner can dissolve the part- nership at will, though it had been agreed that the partnership should continue for a definite time, or that notice of an intention to dissolve should be given. The other partners have an action for damages for breach of contract. In cases involving great loss by an immediate dissolution, a loss which could not be adequately repaired by a judgment for damages, a court of equity might restrain a partner from dis- solving a partnership contrary to the copartnership articles. 4 2. By the death of a partner, which ipso facto dis- solves any partnership. 3. By the insanity of a partner. This does not ipso facto dissolve a partnership, but when once established, it affords sufficient ground for a court of equity to de- cree a dissolution. 4. By the bankruptcy either of the whole partnership or of an individual member. 5. By judicial decree, upon any ground which seems to the court sufficient, as insanity or habitual drunken- ness. 6. By any change in the condition of a partner which renders him unable to carry out hjs part in the part- nership business. 1 Par. Part. 88 ; Story Part. 134 ; i Lind. Part. '303. 2 sKentComm.si. 3 Id. &etseq. 4 Id. 54 ; i Par. Contr. *ig5. See Story Part. 275- 132 A REVIEW IN LAW AND EQUITY. When one partner retires from a firm, notice of the fact must be given to all persons who have dealt with the firm in order to relieve him from any subsequent liability as a partner to such persons. To persons who have not dealt with the firm, the publication of notice of dissolution in a paper of the place where the busi- ness is located is sufficient. Actual notice must be given to the parties who had had dealings with the firm when the retiring partner was still connected with it. 1 A retiring partner cannot allow his name to be used as a member of the firm without incurring liability, but if he has given due notice of his retirement, and his name is still used against his will, he is not compelled to take legal measures to restrain the use of his name. 2 Upon the dissolution of a partnership, the partner- ship creditors must first look to the partnership funds for the satisfaction of their claims, while the individual creditors look to the private funds of each partner. If, after the satisfaction of the claims of private creditors, there is any surplus, the partnership creditors can look to this in case the partnership funds do not satisfy their claims and vice versa? 1 3 Kent. Comm. 66 et seq. 2 Id. 68. 3 Id. 65. CHAPTER XXIV. OTHER CONTRACTS MATTERS OF DEFENCE. I. Suretyship and guaranty. A guaranty is a promise to answer for the payment of a debt, or the performance of a duty in the case of the failure of an- other person who is primarily liable to pay the debt, or perform the duty. 1 The words guarantor and surety are sometimes used as synonymous, but in event of the default of the principal, the guarantor is entitled to reasonable notice of the default, and if reasonable notice is not given, he is let out of Jiis obligation to the extent that he has been damnified by failure to receive notice, while the surety is entitled to no notice of the default of the principal, but becomes himself primarily liable upon his principal's default. 2 The chief difference be- tween an indorser, a surety, and a guarantor is in the nature of the notice to which each is entitled upon de- fault of the principal. 3 When the guarantee, though collateral to the prin- cipal contract, is made at the same time with it, and becomes a ground of the credit given to the principal debtor, the whole is regarded as one transaction, and the consideration of the principal contract extends to, and becomes the consideration of the guarantee. When the guarantee is made stibsequent to the prin- 1 3 KentComm. 121. * See Id. 124. 3 This is true of these parties only in connection with negotiable in- struments. In general, the surety's liability is a primary liability ; that of a guarantor secondary. See Baylies on Sureties and Guarantors 3. (133) 134 A REVIEW IN LAW AND EQUITY. cipal contract, there must be a new consideration in order to support it. 1 Sureties and Guarantors How Released. Sure- ties and guarantors may be released from liability in four ways. 2 1. By any fraud practiced by the principal debtor or his creditor. 2. By the release of the principal debtor for a good consideration. The mere promise on the part of the creditor to give additional time for payment when the debt becomes due, does not release the surety, there being no consideration ; otherwise, in case of a prom- ise to give time founded upon a consideration. 3. By any alteration, by the creditor and principal debtor, of the terms of the original agreement, without the consent of the surety. 4. By the commission or omission on the part of the creditor of any act injurious to the surety. Thus, if the surety holds collateral security or funds applicable to the debt, the negligent loss of or injury to such funds by the principal affords the surety ground for relief in equity. In case a surety is compelled to pay the debt, he stands in the place of the principal creditor, and is sub- rogated to all his rights and remedies with regard to the principal creditor. II. A novation is a substitution of a new debt for an old. It may arise in three ways. 8 1. When a debtor contracts a new engagement with his creditor in consideration of being released from the former engagement ; as when A owes B fifty dollars, and the latter accepts A's promissory note in satisfaction of the original debt. 2. By the intervention of a new debtor, as if B owes 1 3 Kent Comm. 123 ; Baylies on Sureties 53e against good conscience. In all cases the transaction must result in the unjust enrichment of the defendant, riot merely in the impoverishment of or detriment to the plaintiff. Quasi-contracts of this nature may be divided into two general classes. 5 I. Those arising when money has been paid by one person for the use of another. II. Those arising when money has been received by one person for the use of another. I. The general rule giving rise to quasi-contracts of this class is, that when a person has paid money for an- other under circumstarices and upon occasions which make it just and equitable that he should be repaid, a contract for repayment may generally be implied in law without any actual agreement to that effect.* 1 Steamboat Co. v. Joliffe, 2 Wall. 450. 2 3 Bl. Comm. 163. 3 Keener Quasi-Contracts ; Pollock Contr. *28. 4 Leake Contr. 74 ; see Moses v. Macfarlan, 2 Burr. icoS ; Smith v. Jones, ii L. J. C. P. 100 ; Lewis v. Campbell, 8 C. B. 545. 5 Leake Contr. 76. 6 Leake Contr. 77 ; Lewis v. Campbell, 8 C. B. 545 ; Lawson Contr. 51 ; Ralston v. Wood, 15 111. 159. 140 A REVIEW IN LAW AND EQUITY. Three principles are to be noted in this connec- tion. 1 . A quasi-contractual obligation arises when a person has been compelled by law to pay, or, being legally com- pellable, has paid money which another person was pri- marily liable to pay, so that the latter has gained the benefit of the payment. 1 2. A quasi-contractual obligation cannot be created by the payment of the debt of another which is merely voluntary. The payment must be made under legal liability, or under compulsion of some sort. 2 3. Though the payment be compulsory, it will create no quasi-contractual obligation in favor of the plaintiff, unless it operates to discharge a liability of the defend- ant which is recognized as such either in law or equity. The discharge of a merely moral obligation creates no rights in favor of the person discharging it against the person for whom it is discharged. 3 Quasi-contractual obligations of Class I. ARISE COMMONLY IN THREE INSTANCES. 1. When a surety who has been compelled to pay the debt guaranteed is entitled to be reimbursed by the principal debtor. Although the surety's right to recover in this in- stance can be established on the basis of a contract im- plied in fact, yet it was originally recognized as resting on a contract implied in law* 2. When a co-surety or a debtor who has paid more than his share of the debt, is entitled to contribution 1 Leake Contr. 77, cases cited ; Hutton v. Eyre, 6 Taunt. 289. s Leake Contr. 85 ; Keener Quasi-Contr. 388 et seq. ; Johnson v. Royal Mail Co., L. R. 3 C. P. 43 ; Winsor v. Savage, 9 Met. 346 ; Jones v. Wilson, 3 Johns. 434 ; Woodford v. Leaven worth, 14 Ind 311. 3 Atkins v. Banwell, 2 East 505 ; Sayles v. Blane, 14 Q. B. 205 ; Lawson Rights, Rem. and Pr. 2550 ; Leake Contr. 86. 4 Leake Contr. 79 ; Bish. Contr. and cases cited. 5 Keener Quasi-Contr. 400 and cases cited. QUASI-CONTRACTS. 14! from the other co-sureties or co-debtors. Although the right to recover can in this case be ordinarily sus- tained on the basis of a contract implied in fact, yet it has sometimes been recognized as quasi-contractual, 1 and in some instances it must apparently be recognized as such, as when two persons, who are sureties for the same debt, unknown to each other, by different instru- ments and at different times, are held to be co-sureties l in the matter of contribution. 1 In this connection a limitation on the common state- ment that there is no right of contribution as between joint tort-feasors should be noticed. While the prin- ciple is true as between tort-feasors who knowingly and wilfully commit the wrong, it does not apply to a plaintiff who has innocently done an act not tortious in its nature, but who has been compelled to indemnify a party injured thereby. 3 Thus, in Churchill v. Holt, 4 it was held that the plaintiff, who was the lessee of a building and who had been compelled to indemnify a person for injuries received in falling through an open hatchway, could recover from the defendant whose ser- vants had left the hatchway open without the knowl- edge of the plaintiff. The right of an insurer, who has been compelled to pay for the loss arising from injuries to property, to recover from the person who is primarily liable for the loss, is identical in principle with the right of contribu- tion of co-sureties. 5 3. When one person, whose goods are in legal re- 1 Deering v. Earl of Winchelsea, 2 B. and P. 270 ; see Tobias v. Rogers, 13 N. Y. 59. 3 Deering z>. Earl, supra; Whiting v. Burke, 6 Ch. 342 ; Norton v. Coons, 6 N. Y. 33 ; Keener Quasi-Contr. 403. 3 Keener Quasi-Contr. 408, citing and discussing Churchill v. Holt, 127 Mass. 165 ; Armstrong County v. Clarion County, 66 Fa. St. 218 ; Wooley ?'. Batte, 2 C. and P. 41? ; Bailey v. Bussing, 28 Conn. 455. 4 I27 Mass. 165. 5 Leake Contr 82, and cases cited. 142 A REVIEW IN LAW AND EQUITY. straint for the debt of another, pays the debt to secure the release of the goods, and is then permitted to recover the amount paid from the debtor primarily liable ; as if a factor should =o deal with the goods of his principal as to give d lien on them to a third party, and the principal should satisfy the lien in order to recover possession. 1 II. Quasi-contractual obligations arising when money has been received by one person to the use of another. This is to be understood simply as meaning that ob- ligations of this class can be enforced by the plaintiff in an action of assumpsit for money received by the de- fendant to the use of the plaintiff. The general principle which gives rise to these obliga- tions is that when money has been received by a person under circumstances or upon occasions that require, upon principles of justice and equity, that it should be paid over to another, a debt may be implied in law, without any actual agreement of the parties to that effect. 2 This doctrine is invoked most frequently in four in- stances. i . When one person has paid money to another for a consideration wJiich wholly fails ; the money thus paid can generally be recovered in an action for money had and received. 3 Illustrations. The recovery of the purchase-money when goods sold have failed to be delivered by the vendor \ 4 the recovery of money paid by the assignee of a void bond ; 5 the recovery of money paid as a de- 1 Leake Contr. 82. 8 Id 88 ; Addis. Contr. 29 ; see Gorman v. Carroll, 7 Allen 199 ; Jamison v. Moore, 43 Miss. 598 ; Allen v. Burlington, 45 Vt. 202 ; see also Lawson Contr. 49 and cases cited. 3 Leake Contr. 105 ; Lawson Contr. 50 ; Milliard Contr. 13. 4 Devaux v. Conolly, 8 C. B. 640. 5 Flynn v. Allen, 57 Pa. St. 482. QUASI-CONTRACTS. 143 posit upon application for shares in a proposed com- pany which is afterwards abandoned without any al- lotment of shares ;' the recovery of money paid on deposit by a purchaser of land when the vendor fails to complete the bargain by reason of defect of title ; a the recovery of the premium paid on an insurance policy when the risk insured against was not incurred. 3 The following principles are to be observed by way of limitation upon the general right of recovery in this instance : (a). When the failure of the consideration is caused by the plaintiff's own default, there can be no re- cover}- ; as when a purchaser of land, after making a deposit, refuses to complete the contract. 4 (#). There must be complete and entire failure of con- sideration, if the consideration be indivisible, in order to maintain an action for money received. If, how- ever, the consideration be divisible, and the price ap- portionable accordingly, there may be a recovery of an apportionate part of the price upon a partial failure of the consideration. 6 (c). If the stipulated consideration has been received, the fact that it was or has become valueless affords no ground for recovery.' (d}. When the consideration has been partially per- formed, and further performance has become impossible, a plaintiff who has paid out money under the contract cannot recover. 7 1 Leake Contr. 105, and cases cited. s Id. 107, and cases cited ; Pipkin v. James, I Humph. 325. 3 Stevenson v. Snow, 3 Burr. 1240. 4 Leake Contr. no, and cases cited. 5 Id. no, H2, and cases cited. 6 See Taylors. Hare, i B. and P. N. R. 260; Begbie v. Phos- phate Co., L. R. 12 B. D. 679; Schwazenbach v. Odorless Co., 65 Md. 34. 1 Leake Contr. in, and cases cited. 144 A REVIEW IN LAW AND EQUITY. 2. When money has been paid under a mistake of fact which is of such a character as to have produced a sup- posed liability to pay the money which in reality did not exist; 1 and this, though the plaintiff had means of knowl- edge, of which he did not avail himself, 2 and though he had once known the fact, forgetfulness of which had led to the mistaken payment. 3 Illustrations. The recovery of money paid for goods sold, upon a mistake in the weight or measure- ment of the goods, or in the calculation of the price ; * the recovery of money paid to his lessor by a tenant who was afterwards ejected and compelled to pay rent to the real owner for the same time ; 5 the recovery of money by a grantee from a person who had col- lected rents for the grantor, and who continued to do so after the conveyance and in ignorance of it. 6 The following principles are to be observed by way of limitation upon the general right of recovery in this instance : (a). If a payment is made under a mistake of fact which creates no supposed legal obligation, there can be no recovery ; as in case of a gift, made under mistake, but under no supposed liability. 7 (b}. If a payment be made as the result of a mistake of a third party, such as an arbitrator, or a valuer, there can in general be no recovery. 8 1 Leake Contr. 101 ; Frontier Bank z: Morse, 22 Me. 88 ; Appleton Bank v. McGilvray, 4 Gray 518 ; Waite v. Leggett, 8 Cow. 195 ; Kingston Bank r. Eltinge, 40 N. Y. 391. 2 Kelly v. Solari, 9 M. and W. 54 ; Kingston v. Eltinge, 40 N. Y. 391. 3 Id. 4 Cox v. Prentice, 3 W. and S. 344 ; Wheadon v. Olds, 20 Wend. 175- 8 Newsome v. Graham, 6 B. and C. 71. 6 Hills v. Bearse, 9 Allen 403. 1 Wilson z: Thornbury, L. R. 10 Ch. 239 ; Leake Contr. 103 ; Keener Quasi-Contr. 26. 8 Leake Contr. 103 ; Freeman v. Jeffries, L. R. 4 Ex. 189. QUASI-CONTRACTS. 145 (c). In order to recover money paid under a mistake, there must be a failure of consideration. If the plain- tiff has received an equivalent for the money paid, there can be no recovery. 1 (d). The retention of the money by the defendant must be against good conscience in order to sustain a recovery. Money paid in ignorance of the fact that the claim was barred by the statute of limitations cannot be recovered. 2 (e). In order to recover money paid under mistake, notice of the mistake must be given to and demand made of the defendant, if he is unaware of the mistake. 9 A mistake of law will not afford ground for re- covery, however much against good conscience the re- tention of the money by the defendant may be.* A mistake of law occurs when the party knows the facts, but does not know the legal consequences? 3. When one person has wrongfully or fraudulently pos- sessed himself of money, or of goods which he has turned into money, the rightful owner may waive the wrong and recover in an action for money had and received? To waive the tort is merely to choose the remedy in contract in preference to the remedy in tort. 1 Illustrations. The recovery of money which the 1 Keener Quasi-Contr. 34, citing Merchants' Bank v. National Bank, 139 Mass. 513 ; Illinois Trust, etc., Bank v. Felsenthal, 26 111. 624 ; United States v. Badeau, 130 U. S. 439. 8 Keener Quasi-Contr. 43 ; Moses v. Macferlan, 2 Burr. 1005. 3 Leake Contr. 104 ; Kelly v. Solari, 9 M. and W. 58 ; Keener Quasi-Contr. 141 ; there is, however, some conflict in the American cases ; see Leather Manufacturers' Bank v. Merchants' Bank, 128 U. S. 26, and cases cited. 4 Leake Contr. 104 ; for discussion of cases see Keener Quasi-Contr. 85 et seq. 5 Mowatt v. Wright, i Wend. 355. 6 Leake Contr. 89 ; Cooley Torts *g3 ; Shaw v. Coffin, 58 Me. 254 ; Gilmore v. Wilbur, 12 Pick. 120 ; Lawson Contr. 44, and cases cited. 1 Cooper v. Cooper, 147 Mass. 370. 146 A REVIEW IN LAW AND EQUITY. plaintiff had been induced to pay by false pretences / the recovery of money paid under an agreement which the plaintiff could avoid on the ground of fraud /" the recovery of money received by a tort-feasor who has wrongfully obtained 'the plaintift's goods and converted them into money ; 3 the recovery of the proceeds of a sale from a sheriff who had sold the plaintiff's goods on an execution issued against another; 4 the recovery of the proceeds of the sale of land obtained from the owner by wrong or fraud. 6 The following principles are to be observed by way of limitation upon the general right of recovery in this instance : (a). The tortious act of the defendant must result in his unjust enrichment, in order that the plaintiff may recover in an action of assumpsit. Mere impoverish- ment on the plaintiff's part is not enough. 8 (). Money wrongfully obtained and transferred to a third party without notice of the wrong cannot be re- covered from such third party; 7 otherwise, with goods. 8 (c). The defendant gains the right of set-off, when the tort is waived and an action of contract brought, which he would not otherwise have had.' 1 Holt -v. Ely, i E. and B. 795 ; Martin v. Morgan, i B. and B. 289. 2 Street v. Blay, 2 B. and Ad. 456 ; Judge v. Stone, 44 N. H. 593. 3 Rodgers v. Maw, 15 M. and W. 448 ; Lamine v. Dorrell, 2 L. Raym. 1216 ; Lawson Contr. 43, and cases cited. 4 Oughton v. Seppings, i B. and Ad. 241 ; see Harris v. Miner, 28 111. 135- 5 Morgan v. Elford, L. R. 4 C. D. 352 ; Ely v. Wolcott, 4 Allen 506. 6 Keener Quasi-Contr. 160 ; National Trust Co. v. Gleason, 77 N. Y. 400. 7 Foster z>. Green, 7 H. and N. 88 1 ; Bayne v. United States, 93 U. S. 642 ; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268 ; State Bank v. United States Bank, 114 U. S. 401 ; Thacher v. Pray, 113 Mass. 291. 8 Glyn v. Baker, 13 East 509. Thorpe v. Thorpe, 3 B. and Ad. 580. QUASI-CONTRACTS. 147 (d). The measure of recovery in each case is the amount whose retention by the defendant would be against good conscience ; not the injury to the plaintiff, nor the amount which he may have paid. 1 4. When a person has paid money under unlawful compulsion or extortion of any kind, it can generally be recovered in an action for money had and received? This principle is invoked most frequently in three cases. (a). To recover money paid under duress of the per- son, as imprisonment, threats of imprisonment,' or of personal injury. 4 (b). To recover money paid to remove duress of goods, or other property, i. e., to procure possession of property wrongfully taken or detained, 5 or to pro- tect the possession from threatened injury.' (c). To recover money extorted by a person as the consideration for doing what he is legally bound to do without such payment, or without such excessive pay- ment ; ' as when a carrier refuses to carry goods except on payment of an excessive charge ; 8 or when excessive or illegal fees are charged by an official for performing the duties of his office. 9 1 Keener Quasi-Contr. 183 ; Western Assurance Co. v. Towle, 65 Wis. 247. 8 Leake Contr. 95. 3 Harmon v, Harmon, 61 Me. 227 ; Sartwell v. Horton, 28 Vt. 370. 4 Richardson v. Duncan, 3 N. H. 508 ; Harvey v. Boyd, 42 111. 336. 5 Carew v. Rutherford, 106 Mass, r; Peyser v. Mayor, 70 N. Y. 501; Shaw v. Woodcock, 7 B. and C. 84; Atlee v. Backhouse, 3 M. and W. 650. 6 Heckman v. Schwartz, 64 Wis. 48 ; Cobb v. Charter, 32 Conn. 358; Leake Contr. 96. ' Id. 99. 8 Ashmole f.Wainwright, 2 Q. B. 837; Clinton v. Strong,g Johns.369; Beckwith v. Frisbie, 32 Vt. 559; Railroad Co. v. Steiner, 61 Ala. 559. 9 Morgan v. Palmer, 2 B. and C. 729; Walker v. Ham, 2 N. H. 238; Robinson v. Ezell, 72 N. C. 231 ; Dewz/. Parsons, 2 B. and Aid. 563. 148 A REVIEW IN LAW AND EQUITY. The following principles are to be observed by way of limitation upon the general right of recovery in this instance : (a). Money paid in compromise of a question of right to hold goods and not in discharge of a demand which is enforced by their detention, cannot be recovered. 1 (b\ Money paid under compulsion of legal process cannot be recovered, so long as the process stands? If set aside on application to the court, recovery may be had. 3 (c}. Money paid to prevent a threatened sale of real property cannot be recovered, unless a cloud on the title would result from the sale ; * otherwise, with money paid to prevent the sale of personal property, the reason of the distinction being that in the case of the latter the officer takes possession, while in a sale of real property the purchaser is left to enforce such rights as he has acquired. 6 (d). Money paid after the compulsion or duress has ceased cannot be recovered : as in the case of the vol- untary payment of a note which was given under com- pulsion. 8 (e). There can be no recovery of a payment which should have been made, though made under compulsion or duress.' 1 Leake Contr. 97; Atlee v. Backhouse, 3 M. and W. 633. 2 Marriott v. Hampton, 7 T. R. 269; 2 Smith's L. C. 356, 5th ed.; Stevens v. Howe, 127 Mass. 164; Corbet v. Evans, 25 Pa. St. 310 ; Kobler v. Wells, 26 Cal. 606. 3 De Medina v. Grove, 10 Q. B. 152; Lawson Contr. 47, and cases cited. 4 Keener Quasi-Contr. 424, and cases cited. 5 Id. 6 Id. 439; Schultz v. Culbertson, 46 Wis. 313. 1 Diller v. Johnson, 27 Tex. 47. CHAPTER XXVI. TORTS. Wrongs are of two kinds, public and private. Pub- lic wrongs are called crimes. Private wrongs are called torts. Sometimes wrongs are of both a public and private character, as assault and battery, or certain kinds of libel ; but when considered from the standpoint of injury to the individual, they are called torts. 1 Torts differ from contracts in three particulars. 8 1. Joint wrong-doers, or tort-feasors, are severally lia- ble for the injury done. There is no plea in abatement for non-joinder, and no right of contribution from each other. 3 2. The death of either party to a tort destroys all right of action / while, as a rule, the personal representatives, and often the heirs-at-law, of contracting parties, are bound by the contracts entered into by the deceased. 3. Persons who are not liable on their contracts, as in- fants or insane persons, are liable for their torts. Torts differ from crimes, aside from being regarded as private wrongs, in that in the former the wrong- doer's intent, as a rule, is immaterial, while in the latter criminal intent must be alleged and proved.* DAMAGES. In regard to damages, the law uses two words, damnum and infuria. Damnum is actual damage in- 1 i Hill. Torts i, 60. * Id. 2. 3 This is true only of tort-feasors who knowingly engage in the wrongful act. See Keener Quasi-Contracts 408. 4 See local Statutes for modification of this rule. 5 Cooley Torts *84. (149) 150 A REVIEW IN LAW AND EQUITY. curred by a person, an actual injury to his property, person, or rights. Injuria is a legal injury, an injury for which the law will give a remedy? In all torts there must be the infringement of a right, or the violation of a duty. Hence there may be damnum without injuria, and injuria without damnum. Thus, if A erects a building which conceals the shop of B from view, the latter might suffer great actual damage (damnum), but there would be no injury for which the law would give redress. This would be a case of damnum absque injuria (damage without legal injury). On the other hand, if A should walk over the land of B, no permission either express or implied being given, he would be liable in an action of trespass by B, for though B's land may have suffered no actual injury (damnum), yet there is a legal injury (injuria) for which he can recover nominal damages. This would be a case of injuria sine damno (legal injury without actual damage). In certain cases, as when the wrong-doer's motive is vicious or malicious, the law permits the injured party to recover, in addition to his actual damages, vindictive {punitive, exemplary) damages, i. e., damages which are designed not to be so much the reparation of the injury as the infliction of a penalty upon the wrong-doer. 2 To recover damages for a tort, the tort must have been the immediate, not the remote cause 6f the injury. If an injury has resulted from some wrongful act, but through the medium of some intervening cause or agency, the law attributes the injury to this latter cause, and does not trace it back to the remote cause. 8 Thus, in an action against a carrier for the loss of 1 Bouv. Law Diet., sub. Damnum and Injuria; i Hill. Torts 76; Cooley Tons *62, *8i ; i Suth. Dam. 3. 5 Wood's Mayne Dam. 61 n. (ist Am. Ed.). 3 Cooley Torts *68. TORTS. 1 5 1 goods by a flood, in which it was shown that had it not been for the lameness of a horse employed by the carrier, the goods would not have been in the way of the flood, it was held that the lameness of the horse was the remote and not the immediate or proximate cause of the loss, and that the carrier was not liable. 1 CLASSES OF TORTS. Torts may be divided into three classes, torts to the person, torts to property, torts to reputation, I. The chief torts to the person are assault and battery, false imprisonment, injuries arising from dangerous animals. 1. An assault is an attempt, with unlawful force, to inflict bodily injury on another, accompanied with ability to give effect to the attempt, if not prevented. A battery is an assault which succeeds in its pur- pose. There must always be an intent, express or implied, to constitute a battery. Assent to the commission of a battery is no defence to an action for injury sus- tained. 3 A battery may be justified on one of three grounds. 1 (a). As a proper mode of correction, as in the punish- ment of a child by a teacher or parent. (b). As a means of preserving the peace. (c). As a necessary means of defence of the person of oneself, or of the person of husband, wife, parent, child, master, servant, or as a means of defence of property. 2. False imprisonment is any unlawful restraint of a man's liberty, either by force or under the threat of force. 4 If a person is arrested under process, it must have been issued by a court or officer having authority 1 Morrison v. Davis, 20 Pa. St. 171. * Cooley Torts *i6o-*i64. 3 Id. *i6s etseq. ; Big. Torts 105, 108. 4 Cooley Torts *i6g. 152 A REVIEW IN LAW AND EQUITY. to issue it, and there must be nothing on the face of the process informing the officer executing it that in the particular case there was no authority for issuing it ; * otherwise the imprisonment is illegal. An arrest without a warrant may be lawfully made in two cases.* (i). When a felony has been committed, and the party making the arrest has sufficient grounds for sus- pecting the person arrested to be the felon. (2). In forcible breaches of the peace, as in affrays and riots. 3. As a rule, an owner is liable for all injuries inflicted by a dangerous animal upon innocent persons who are guilty of no contributory negligence, if he knows, or might reasonably have been supposed to know, of the dangerous character of the animal. 3 Owners are liable for injury done to the property of others by their animals, whether dangerous or other- wise. The use of fierce dogs to defend the owner's premises may, in some circumstances, be the employment of unlawful force. The taking of life to prevent a mere trespass is never lawful, and the employment of a dog, known to be likely to inflict extreme injury, against trespassers, would be unlawful, would make the owner liable for injuries inflicted by the animal, and, in case death resulted, might, in some cases, make him guilty of manslaughter. 4 II. The chief torts to property are trespass, waste, nuisance, conversion, Injuries to incorporeal rights, seduction. i. A trespass is an unlawful act, committed with violence, actual or implied, to the property, person, or 1 Cooley Torts *i;2. 2 Id. *I75 3 Id. *342 et seq. ; i Hill. Torts 592 ; Big. Torts 248. * See Cooley Torts *i68, 169. TORTS. 153 rights of another. 1 In this connection only that por- tion of the definition which refers to property applies. Trespass may be committed upon real or personal property by a person or his agent, or by animals. The only important exception to the rule that an owner is liable for trespasses committed by his animals, is in the case of animals which are being driven along a highway. Here, if due care is exercised in their driving, and they enter upon the property of another, their owner is not liable, if they are removed in a reasonable time. Any person who is in actual possession of property may maintain an action of trespass. 8 2. Waste is an injury done, or permitted to be done, to corporeal hereditaments, by the tenant, to the prejudice of the heir, the remainder-man, or the rever- sioner." It differs from trespass in that it is committed by a person lawfully in possession. Waste is of two kinds. (a). Permissive, or the neglect to do that which will prevent injury, as to let a house go to decay for want of repairs. (b). Voluntary, or the commission of some destruc- tive act. The most ordinary forms of voluntary waste are cutting off timber, opening and working mines, and converting arable into pasture land. 4 3. A nuisance is a wrong arising from unreasonable or unlawful use, by a person, of his own property, or from his improper or unlawful personal conduct, work- ing an obstruction of or to the right of another or 01 the public, and producing such material annoyance, in- convenience, discomfort, and hurt .that the law will presume a consequent injury. 6 Nuisances are of three kinds.' 1 Bouv. Law Diet., sub. Trespass. 9 Cooley Torts *34i. 3 Bouv. Law Diet., sub. Waste. 4 Cooley Torts *333- 5 i Wood Nuis. i. 6 Id - 34- 154 A REVIEW IN LAW AND EQUITY. (a). Private, or those committed to the hurt of the lands, tenements, and hereditaments of another, such as filthy percolations from the premises of one man on those of another. They produce damage to but one or a few persons. (). Public or common, or those which produce an- noyance or hurt to the whole community in general, such as keeping a disorderly house. (c\ Mixed, or those which affect the community as a whole, and which also work particular damage to some individual or class, such as a ditch unlawfully dug across a highway, into which a person falls. The ditch is a public nuisance, and, to the party falling into it, a private nuisance. The person injured can maintain an action against the party who dug the ditch, while the remedy for the public is by complaint or indictment. Carrying on an offensive trade or occupation in a re- mote locality for a long time, does not entitle the owner to continue it when the locality has become populous. No person can gain a right to maintain a public nuisance by prescription* 4. Conversion is the appropriation by one person of personal property belonging to another, to his own personal use. In all actions brought for con- version, there is an assumption that the original tak- ing of the goods may have been lawful, the wrong consisting in the continuing in possession and the re- fusal to surrender the goods to their real owner. In this respect conversion differs from trespass, in which the original taking was unlawful. 1 Conversion is of two kinds.* (a). Direct, or when a person actually appropriates to his own use or enjoyment the property of another, or destroys or alters its nature. 1 i Wood Nuis. 40, 105. * Cooley Torts '442. * Bouv. Law Diet., sub. Conversion. TORTS. 155 (b). Constructive, or when a person does such acts in regard to the personal property of another as amount, in view of the law, to an appropriation of the property to himself. Thus, an original unlawful taking is, as a rule, conclusive evidence of actual conversion. 5. The chief injuries to incorporeal rights are :' (a). Infringement of patents, copyrights, and trade- marks. (b). Injuries to the good-will of a business. (c). Injuries to rights in easements, as by barricading a right of way, causing land to fall by excavations, interfering with the right of support in a party wall, etc. 6. Seduction is the enticing of a woman to unlawful sexual intercourse. 8 The husband has a right of action against the seducer of his wife, and the parent for the seduction of a child, provided that he is entitled to her services, loss of service being the ground of the action. When loss of service has been established, vindictive damages may be given.* III. Torts to reputation are of three kinds. Slander, libel, and malicious prosecution. i. Slander consists of words falsely spoken, which are injurious to the reputation of another. 4 It is defama- tion addressed to the ear. In order to be actionable, it must be published, i. e., heard by some one.* Actionable words are of two kinds. 8 (a). Those which are actionable per se, /'. e., words for which an action will lie without proof of actual dam- age, damage being inferred from the nature of the publication. There are four classes of words actionable per se. 1 Cooley Torts '351 et seq. -* Bouv. Law Diet., sub. Seduction. 3 Cooley Torts *228, *234- 4 Odger Libel & S. *7 ; see Townshend Libel & S. 4, note. 5 Cooley Torts *ig3. * Id. *IQ4 et seq. 156 A REVIEW IN LAW AND EQUITY. (i). Those imputing the commission of an offence in- volving moral turpitude} or cognizable by a criminal prosecution which may result in a disgraceful punish- ment. (2). Those imputing a contagious disease, involving, if known, exclusion from society, as to call a man a leper. 2 (3). Words imputing unjitness for or dishonor in office, as a charge that a postmaster has robbed the mail. 3 (4). Words imputing want of integrity or capacity in business, as to accuse a physician of lack of ability. 4 (b}. Words which are actionable only on account of some actual consequential damage which must be proved. 6 A person who repeats a slander is equally liable with the party originating it. A statement that the person repeating a slander heard it from another is no defence to an action." 2. A libel is a censorious or ridiculous writing, picture, or sign made with a malicious or mischievous intent towards governments, magistrates, or individuals. 7 It is defamation addressed to the eye. Libels are divided into two classes.' (a). Those actionable per se. (b}. Those actionable on proof of special damage. The first class embraces the four cases in which slan- der is actionable per se, and in addition any libel whose tendency is to render a person contemptible or ridicu- 1 Brooker v. Coffin, 5 Johns. 188 ; Miller v. Parish, 8 Pick. 385. 8 \Villiams v. Holdredge, 22 Barb. 398. 3 Craig -v. Brown, 5 Blackf. 44. 4 Camp v. Martin, 23 Conn. 86 ; Orr v. Skofield, 56 Me. 483. 6 Oakley v. Farrington, i Johns. Cas. 129; Odiorne v. Bacon, 6 Cush. 185. 6 Cooley Torts *22o. 1 Bouv. Law Diet., sub. Libel, and cases cited. 8 Cooley Torts *2O5. TORTS. 157 lous in public estimation, or to expose him to public hatred or contempt, or to hinder virtuous men from associating with him. 1 A civil action only lies for slander, but libel in some cases is a criminal as well as a civil offence, and may be prosecuted by indictment. Such libels are those whose tendency is to disturb the public peace and good order of society. They include libels which are actionable per se, and some others." To sustain an action for either slander or libel, there must be malice. Malice is of two kinds.* (a). Express, or that which is shown by evidence to actually exist. (V). Implied, or that which the law, from the facts, assumes to exist. In cases of slander and libel actionable per se, malice is presumed, and no proof of its existence is necessary. 4 The truth of a slander or libel is a defence to a civil action, but, as a rule, it is not a defence to an in- dictment for libel, the public injury resulting from it not being affected by its truth or falsity.* PRIVILEGED COMMUNICATIONS. Under certain circumstances persons uttering or publishing words which would otherwise be actionable, are not held liable, owing to the communications being regarded as privileged. These cases are divided into two classes." (a). Cases absolutely privileged, so that no action can be maintained, though it be alleged that the publica- 1 Lindley v. Horton, 27 Conn. 58. * 3 Greenl. Ev. 164 ; Starkie S. and L. *I7O ; Townshend L. & S. 6. / 3 Cooley Torts *aog ; Townshend S. & L. 66. 4 Starkie S. & L. *2Q4. 5 Cooley Torts *2o7. 6 Id. *2 1 et seq. 158 A REVIEW IN LAW AND EQUITY. tion was both false and malicious. The chief instances are: (i). That of a witness testifying in court. (2). That of a legislator speaking in the legislative body of which he is a member. (3). That of executive and judicial officers, as regards their official utterances. (b). Cases conditionally privileged to the extent that there will be no presumption of malice, but which render the party liable, if both falsehood and malice are proved, as in case of a petition to the appointing power for the removal of an official, or of a father dis- cussing with a daughter the character of a suitor. Belief in the truth of a slander or libel, and the most careful investigation of the grounds of belief, are no defences to an action, though they may prevent the awarding of exemplary damages. 1 3. Malicious prosecution is a wanton prosecution made by a prosecutor in a criminal proceeding, or a plaintiff in a civil cause, without probable cause, by a regular process or proceeding, which the facts did not warrant, as appears by the result. 2 To maintain an action for malicious prosecution, the plaintiff must prove four things. 3 (a). That a suit or proceeding had been begun against him by or at the instigation of the defendant. (b). Want of probable cause on the part of the defendant. (c). Malice on the part of the defendant. (d\ The termination of the suit or proceeding in his favor. Probable cause means the existence of such facts and circumstances as would excite the belief in a 1 Townshend S. & L. 324 ; Odger L. & S. *3O2. * Bouv. Law Diet., sub. Malicious Prosecution. 3 Id.; Cooley Torts *i8i et seq. TORTS. 1 59 reasonable man that the plaintiff was guilty of the offence charged, or that there was ground for an action against him. As a rule, the fact that the defendant acted under the advice of counsel in beginning the proceeding is a bar to an action for malicious prosecu- tion. The burden of proof is on the plaintiff to show lack of probable cause. Malice must be proved by plaintiff. It may be either express or implied. Malice may be inferred from lack of probable cause, but lack of probable cause cannot be inferred from malice. An action for malicious prosecution will lie for the institution of a civil suit, though the exact instances are as yet uncertain. It can, however, be maintained in the following cases : malicious institution of pro- ceedings in bankruptcy, of a civil suit accompanied by the arrest of the defendant, of proceedings to have a person declared insane or for the appointment of a guardian. CHAPTER XXVII. EQUITY. History. Equity is that system of jurisprudence which affords a remedy where there is no plain, com- plete, and adequate remedy at common law. 1 In Eng- land, its administration belongs to the Court of Chancery. The precise origin of the equitable juris- diction of this court is uncertain, but the following ex- planation by Lord Hardwicke seems most probable. 3 The administration of justice in England was originally in the hands of the Great Court, or Council of the King, which acted as a supreme court of judicature. Afterwards this court was dissolved, and its jurisdic- tion distributed among various courts, it being given principally to the Court of Common Pleas, of King's Bench, of the Exchequer, and of Chancery. Now all original writs under the great seal returnable to the common - law courts were issued from Chancery. Many petitions being presented to Parliament and the King for relief which could not be obtained by a resort to common law, they were, as a rule, referred to the Privy Council of the King, which, in turn, sent them to the Chancellor, who was to decide whether the com- mon-law actions were insufficient for the case, and if they were found to be so, he proceeded to give relief through the Court of Chancery. As originally the grant- ing of such relief rested in the judgment and discretion of the King, as represented by the Chancellor, the grant- ing of it was said to be a matter of grace, and not of rig/it. 1 i Story Eq. Juris. 33. 2 See Id. 43; Bisph. Eq. 6 et seq.\ Tied. Eq. 4. (160) EQUITY. l6l The courts of common law were unable to grant full relief in every case, for two reasons. 1 1. Because of the limited number of actions, by which the rightsofallparties could not be protected inevery instance. 2. Because of the closeness with which the common- law judges adhered to certain ancient and very technical decisions. Originally, proceedings at equity and law differed in two essential points. 2 1. In equity, there was no oral testimony. All testi- mony was taken by depositions. 2. In equity, the court was judge both of law and fact. The court could, in its discretion, frame an issue of fact and send it to a jury for determination, but the finding of the jury was not binding on the judge. At present, the essential difference between courts of equity and of common law is best illustrated by the result of a trial in each. At common law the trial results in a judgment for the defendant, or for damages for the plaintiff. In equity the trial results in a decree, in which all the rights of the parties are adjusted. A decree may be partially in favor of the plaintiff and partially for the defendant, while a judgment must be wholly in favor of one or the other. Courts of equity now, at least, follow precedent as closely as do courts of law. The difference between the two lies in the form of the proceedings and in principles. Equity is enlightened law, untrammelled by confinement to a limited number of actions. MAXIMS OF EQUITY. There are ten maxims of equity, of chief importance. 1 i. Where there is a right, there is a remedy, /'. e. t 1 Bisph. Eq. 7; see also Tied. Eq. 3; I Pom. Eq. Juris. 16. 5 Bisph. Eq. 16 3 See Bisph. Eq. 37 et seq. ; i Story Eq. Juris. 64 et seq. ; Tied. Eq. 13 et seq. l62 A REVIEW IN LAW AND EQUITY. whenever there is an infringement of a legal right, equity will give a remedy, if there is none at common' law. 2. Equity follows the law, /. e., the principles and rules of the common law are adopted whenever this can consistently be done. Thus equitable estates are distributed according to the rules for the distribution of legal estates. 3. When the equities are equal, the law will prevail, Thus if a purchaser, for a valuable consideration, with- out notice of an equitable right, obtains the legal estate at the time of the purchase, he will hold as against the owner of the equitable title. This maxim supported the doctrine of "tacking" in mortgages. (See page 42.) 4. Equity favors the active, not the passive. This is designed to encourage diligence and punish laches. 5. Equality is equity. Thus, if A conveys an estate in trust to B, to be conveyed by him to such one of four persons as he might deem best, and B dies, having failed to execute this power, a court of equity will divide the property equally among the four. 6. He who comes into equity must come with clean hands. Thus, equity will not enforce a gaming trans- action. 7. He who seeks equity must do equity. Thus, if a person seeks relief from a usurious contract, he must offer to return the borrowed money, together with law- ful interest. 8. Equity considers that as done which ought to be done. Thus, if a testator has provided absolutely that lands be sold and converted into money, equity will regard the change as having taken place at the moment of the testator's death, and the property will be governed by the rules of personal property. 9. When the equities are equal, priority of time will EQUITY. 163 prevail. Thus, if A has an equitable estate which he mortgages to B, and subsequently A conveys his equi- . table estate to C, C will take the equitable title subject to the mortgage of B. 10. Equity acts in pcrsonam. Hence when the parties are within the jurisdiction of a court of equity, it will act, though the property in question may be outside the jurisdiction. Thus, it is settled that a decree of foreclosure and a sale of mortgaged property is valid, though a part of the property is without the jurisdic- tion of the court ordering the sale. 1 JURISDICTION OF EQUITY. There are eleven chief heads of equitable jurisdic- v tion : trusts, mortgages ? 'assignments, 'accident, mistake, fraud, notice, Estoppel, 'conversion, adjustment/liens. I. A trust is an equitable right, title, or interest which a person has in property, the legal title to which lies in another. 2 The person holding the legal title is called trie trustee, and the person for whose benefit it is held is called the beneficiary or the cestui que trust. Trusts correspond to uses as they existed prior to the statute of uses. (See page 69.) Trusts may be divided into two classes. 1. Express trusts, or those which are created in express terms. 2. Implied trusts, or those which, without being expressed, are deducible from the nature of the trans- action, or which are inferred as existing by equity, independent of the intent of the parties." Implied trusts may be divided into two classes, con- structive trusts and resulting trusts.* (a). Constructive trusts are those which arise by 1 Muller v. Dows, 94 U. S. 444- 8 2 StoI T Ec l- J uris - &* 3 See Bouv. Law Diet., sub. Trust. 4 2 Story Eq. Juris. 1195; Tied. Eq. 308. 164 A REVIEW IN LAW AND EQUITY. construction of equity, regardless of the intent 'of the parties? There is no element of fraud in constructive trusts as here referred to. Trusts of this kind arise most, frequently from the rule that "Whenever one person is placed in such relation to another that he be- comes interested for him or with him in any subject of property, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated." 2 Thus, if a trustee renews a lease in his own name and with his own funds, this renewal inures to the ben- efit of the cestui que trust, the trustee being still regarded as trustee for the beneficiary in respect to the lease. (b\ Resulting trusts are those raised by implication of law, and are presumed to exist from the supposed in- tention of the parties and the nature of the transaction. 3 They may arise in four ways.* (i). When one person pays the purchase-money, but takes the title to the property in the name of another. Thus, if A buys land, but has the deed made to B, Bis regarded as trustee for A. It is essential that the pay- ment be made prior to or at the time of the conveyance. There is one exception to this rule in regard to a resulting trust, namely, in advancements* An advance- ment is a purchase by a parent, or by one standing in the place of a parent, with the conveyance taken in the name of the child. Here the presumption is that the purchase was intended for the benefit of the child, and no trust results to the parent except on proof that the purchase was not meant as an advancement. 1 Bisph. Eq. 91. 2 i Lead. Cas. in Eq. 62 n. (4th Am. Ed.). 3 Bouv. Law Diet., sub. Resulting Trust. 4 Bisph. Eq. 79 et seq.; 2 Story Eq. Juris. 1195 et seq.\ 2 Pom. Eq. Juris. 1031 et seq. 5 2 Story Eq. Juris. 1213 et seq. \ Bisph. Eq. 84. EQUITY. !65 (2). When a trustee buys property in his own name, but with trust funds. (3). When the trusts of a conveyance are not declared, or are but partially declared, and fail, the trustee, does not hold for his own benefit, but as trustee for the donor himself, or of his heirs-at-law. (4). Where there is a voluntary conveyance, without any consideration, and it is evident that it was not in- tended that the grantee should hold the property for his own benefit. Express trusts. An express trust of personal property may be proved by parol, but an express trust of real property must be in writing. 1 Three things are essential to the creation of an express trust." (a). Sufficient words to create a trust. (b). A definite subject-matter, i. e., definite property on which the trust is to operate. . (c). A definite object, for whose benefit the trust is created. Trusts may also be divided into two other classes. 5 1. Active trusts, in which the trustee has some duty to perform, as the conveyance of an estate to A as trustee, who is to pay the debts of the testator and then to convey the property in certain proportions to the children of the testator. 2. Passive trusts, sometimes called dry trusts, which require no action on the part of the trustee to carry out the trust, but in which he is merely the depositary of the legal estate. In such a trust, the cestui que trust may compel a conveyance of the legal estate to himself by the trustee. 4 Trusts may still further be divided into two classes.* i. Executory trusts. W T here some further act is re- 1 Bisph. Eq. 63. 2 Cruwys v. Colman, 9 Ves. 323. 3 Tied. Eq. 288; Bisph. Eq. 54. 4 i Lewis Trusts *i8. 6 Bisph. Eq. 57; Tied. Eq. 293. 1 66 A REVIEW IN LAW AND EQUITY. quired to be done by the trustee to give the trust its full effect, as in the creation of a trust by will, in which the trustees are directed to convey the property held in trust to certain persons at a certain time. 2. Executed trusts, where the interests to be created are fully defined and created by the instrument creating the trust, so that no further conveyance is required to perfect them, as the appointment of A to hold property as trustee for B until he reaches the age of twenty-one, and at that time the trust to cease, and B to become seised of the legal as well as the equita- ble estate. Trusts may be still further divided into two classes. 1 1. Private trusts, or those in which the beneficial interest is ultimately in one or more definitely ascer- tained individuals. 2. Public or charitable trusts. These trusts differ from others in two particulars. 2 (a). The rule against perpetuities does not operate against them. (). Certainty in the objects of the trust is not essential. The following four classes of trusts have been con- strued to be charitable : 8 (i). Trusts for the purposes of religion. (2). Trusts for the purposes of education. (3). Trusts for eleemosynary purposes. (4). Trusts for the purpose of relieving the govern- ment of burdens, as trusts for the building of town- houses, etc. The cy pres doctrine is most frequently invoked in carrying out trusts of this nature. (See page 81.) Thus, in a trust " for the preparation and circulation 1 Bisph. Eq. 59 ; Tied. Eq. 303. 2 Id. 116, 133 ; Id. 306, 307. 3 Id. 120 et seq. ; Id. EQUITY. 167 of books and such other instruments as in the judg- ment of the trustees will tend to create an anti-slavery sentiment, and for the benefit of fugitive slaves," negro slavery having been abolished when the will creating the trust went into effect, under the cy pres doctrine the fund was applied to the New England Branch of the American Freedmen's Union Com- mission. 1 II. Mortgages. (See page 40.) As equity origi- nally interfered to protect the mortgagor, it came to have complete jurisdiction in all matters pertaining to the foreclosure, redemption, etc., of mortgages." III. Assignments. At common law no chose in action could be assigned, because otherwise it was feared that litigation would be encouraged, and it also seemed absurd to the common lawyers that a person could sell a thing of which he did not have possession. But such assignments were upheld in equity, as were also assignments of future and contingent interests, such as the earnings of a ship. 3 IV. Accident. An accident is an unforeseen and injurious occurrence, not attributable to mistake, neglect, or misconduct* Equity gives relief in three instances. 5 1. When deeds, or other written instruments, are lost. If the loss is without fault on the part of the loser, equity will decree a re-execution of the instrument. It may also direct the loser to give to the party who re- executes the instrument, a bond of indemnity, to pro- tect him from any injury which may occur to him from the discovery of the lost paper. 2. When penalties in bonds are accidentally incurred. A penal bond is one in which the amount for which 1 Jackson -'. Phillips, 14 Allen 556. s Tied Eq. 414. 3 Bisph. Eq. 162, 164 ; In re Ship Warre, 8 Price 269. 4 Smith Eq. 36 ; Story Eq. Juris. 78. 6 Bisph. Eq. 176 et seq. 168 A REVIEW IN LAW AND EQUITY. the obligor is liable, in event of breach of condition, is fixed. This amount is called \hz penalty. Equity first gained jurisdiction by giving the obligor or the sureties relief when, on account of some accident, the obligor was unable to fulfill the conditions on the precise day named in the bond. Jurisdiction once gained, how- ever, equity went further, and declared that, on breach of condition, the obligor should be obliged to pay only the amount actually due to, or the damages actually sustained by, the obligee, on account of breach of con- dition, and not the penalty named in the bond. The question commonly is whether the amount stated in the bond is a penalty, or whether it is an amount agreed upon by the parties as a recompense for the damages suffered in event of condition broken. In the latter case equity gives no relief. 1 The amount of a bond will be construed as a penalty, and consequently relief will be given, unless the damages are uncertain, and it is impossible to render them certain. An obligor cannot escape an action for the specific performance of an agreement stated in a bond, by electing to pay the penalty. The giving of such a bond does not affect the question of specific performance. 2 3. A defective execution of a power, as in case of a trustee, with power to sell, who executes an imperfect conveyance to a purchaser. IV. Mistake. A mistake arises when a person, under some erroneous conviction of law or of fact, does or omits to do some act, which, but for the conviction, he would not have done or omitted to do. 3 Mistakes are of two kinds, mistakes of law and mistakes of fact. i. As a rule, equity gives no relief for mistakes of 1 Bisph. Eq. 178 et seq. ; I Story Eq. Juris. 89 ; Adams Eq. *io8. * Bisph. Eq. 180. 3 Haynes Outlines of Eq. 132. EQUITY. 169 law. Ignorance of the law excuses no one. This rule has been somewhat shaken however.' Courts readily take advantage of circumstances on which to base relief, especially if advantage has been taken by one party of the ignorance of the other, or if any attempt has been made to confirm this ignorance.* 2. A mistake of fact will be relieved in equity if the mistake is mutual, material, and not caused by negligence. V. Fraud. There are many remedies at common law for redressing injuries arising from fraud, but they are often inadequate from their very nature. The aim of equity, in the matter of fraud, is to place the parties, so far as possible, in their condition prior to the com- mission of the fraudulent act, the nature of equitable remedies rendering this possible. Again, at law fraud must always be proved ; there is never a presumption of fraud ; while in equity, an indisputable presumption of fraud frequently arises from the relations of the parties or the nature of the transaction. 3 Equity has jurisdiction in all cases of fraud, with two exceptions. 4 1. In cases of fraud used in regard to a will, in which courts of probate have exclusive jurisdiction. 2. In cases where the remedy at law is complete and adequate. Fraud is divided into two classes. 5 1. Actual fraud, or the intentional and successful employment of any cunning, deception, or artifice to circumvent, deceive, or cheat another. 2. Constructive or legal fraud, i. e., fraud which is presumed from the nature of the case, the relations of the parties, etc. 1 See Bisph. Eq. 187 et seq. ; Keener Quasi-Contract, 85 et rcq. ; 2 Pom. Eq. Juris. 842 et seq. * Bisph. Eq. 188, and cases cited. 3 Bisph. Eq. 197, 198, 201. 4 Id. 199. 200. 5 i Story Eq. Juris. 184 et seq., 258. I/O A REVIEW IN LAW AND EQUITY. Fraud may also be divided, according to Lord Hard- wicke, into four classes. 1 1. Fraud arising from the facts and circumstances of the imposition. 2. Fraud apparent from the intrinsic nature of the bargain itself. 3. Fraud which is inferred from the circumstances and relations of the parties. 4. Fraud inferred from the nature and circumstances, of the transaction as being a fraud on third parties. 1. In order to make a representation fraudulent, in this class of fraud, four facts must exist." (a). The representation must be actually/tf/fo 7 . (b\ It must be supposed to be untrue by the party making it. (c\ It must be relied on by the party to whom it is made. (d\ It must be a material misrepresentation. 2. A transaction of the second class may be fraud- ulent on two grounds.* (a). Because of its terms, as in a contract where ^he consideration is grossly inadequate contracts are, however, rarely set aside on this ground alone, also in case of usurious contracts and gambling transactions. (). Because of its subject-matter, as in marriage brocage contracts, contracts in restraint of marriage and of trade. (See page 93.) 3. Fraud of this kind may arise from two circum- stances. 4 (a). From the mental disability of one party, as in case of idiots and insane persons. (ft). From the supposition of undue influence arising from the relations of the parties. These relations are ordinarily four. 1 Chesterfield v. Janssen, r Atk. 301. 2 Bisph. Eq. 206 ; Adams Eq. *I7&. 3 Bisph. Eq. g 219, 224. 4 Id. 230 et seq. EQUITY. i 7 i (i). Guardian and ward. (2). Parent and child. (3). Attorney and client. (4). Trustee and cestui que trust. Gifts to the guardian, parent, attorney, or trustee from, and contracts to their advantage, with the ward, child, client, or cestui que trust, are regarded with the greatest disfavor by courts of equity, and are set aside upon the least indication of undue influence. In some instances the transaction can be set aside at the option of the party presumably imposed upon, as in case of a gift from client to attorney, 1 while in others the pre- sumption of fraud is prima facie only, and may be re- moved by evidence of perfect fair dealing and absence of undue influence, as in case of a transaction between parent and child. 3 The general rule is that no party in a fiduciary re- lation can be permitted to profit at the expense of the party whose interests are confided to him. 3 4. The most familiar instance of fraud of this class is found in conveyances designed to defraud creditors. Such conveyances are void, though given for a valuable consideration, provided that the purchaser knew of the intent to defraud. 4 VI. Notice. The doctrine of notice had strictly no application at common law. There parties stood solely on their legal titles, and notice or knowledge of a prior title was of no effect. The rule in equity, however, is that a purchaser who takes property with notice of valid claims and encumbrances upon it, takes it subject to those claims and encumbrances. 4 Thus, if A holds the legal title to an estate charged 1 Holman v. Loynes, 4 D- G. M. & G. 270 ; Greenfield's Estate, 14 Pa. 489. ' l Taylor v. Taylor, 8 How. 183. 3 See Bisph. Eq. 234, 238 ; I Story Eq. Juris. 30? ft "I- * Bisph. Eq. 243. * Id. 261,262. 1/2 A REVIEW IN LAW AND EQUITY. with a trust, and conveys the estate to B, who pur- chases in good faith and for a valuable consideration, and without notice of the trust, he holds it discharged from the trust. But if he takes it with notice, he takes it subject to the trust. Notice is the knowledge, either actual or constructive of some act done. It is of two kinds. 1. Actual, when the knowledge is actually brought home to the party to be charged with it, as where one sees the record of a deed. 2. Constructive, when the party, by any circum- stance, is put upon inquiry, or certain acts have been done, of which knowledge is presumed on grounds of public policy ; 1 as in case of a party in possession of a deed which refers to another deed given to another party. Here the party having the first deed has con- structive notice of the contents of the second. There is also constructive notice of the record of a deed, of a publication in a newspaper when it is authorized by legal process, of the public acts of government, and of the pendency of a suit (Us pendens). VII. Estoppel is the preclusion of a person from asserting a fact, by previous conduct inconsistent there- with, on his own part or on the part of those under whom he claims, or by an adjudication of his rights which he cannot be allowed to question. 1 Estoppel is of three kinds. 3 1. By deed. A party to a deed is estopped to deny anything therein which has operated on' the other party. This estoppel affects only parties and privies in blood, law, or estate, as ancestor and heir, executor or administrator and the person deceased, lessor and lessee, etc. 2. By matter of record, as by the adjudication of a proper court. 1 Bouv. Law Diet., sub. Notice ; Bisph. Eq. 263, 268. s Bouv. Law Diet. * Id.; Bisph. Eq. 281. EQUITY. ! 7 3 3. By matter in pais. Such an estoppel arises from the acts and declarations of a person by which he in- tentionally induces another to alter his position inju- riously to himself, as when A stands by and allows B to sell property which belongs to A, without remonstrating. A is then estopped to deny that B had title to the property. That is, he cannot assert his title against the purchaser from B. Estoppels by deed and record are common-law estop- pels. Estoppels by matter in pais, are equitable. To work an estoppel by matter in pais, five things are essential. 1 (a). A representation or concealment of material facts by the party to be estopped. (6). Knowledge of the facts on the part of the person making the representation. (c). Ignorance of the facts on the part of the person to whom the representation was made. (d). An intention that the party to whom the represen- tation was made should act upon it. (e). Action on the representation by the party to whom it was made. The doctrine of estoppel operates in election. Elec- tion is the obligation imposed upon a party to choose between two inconsistent or alternative rights, in cases where there is a clear intention on the part of the person from whom he derives one that he should not enjoy the other ? as if A should, by will, give $1,000 to B, on con- dition that B should give certain property of his to C. Here, B must choose whether to retain his own prop- erty, and surrender the legacy, or whether to accept the legacy and transfer the specified property to C. When the choice is made, he is estopped from asserting any interest in the other right. Thus, if he accepts the $1,000, he is estopped to deny that the specified prop- erty of his should be given to C. 1 Big. on Estoppel 569. 8 2 Story Eq. Juris. 1075. A REVIEW IN LAW AND EQUITY. VIII. Conversion. By conversion, in equity, is meant a change of property from personal into real, or from real into personal, not actually taking place, but supposed to take place by construction of equity.' When money has been directed to be employed in the purchase of land, or when land has been directed to be sold and converted into money, equity will suppose the change to have taken place, and will regard the money as land, and the land as money. Thus, if A enter into a valid contract with B for the conveyance of certain land from B to A, A is regarded, in equity, as the owner of the land ; he can devise it, and if he dies be- fore the conveyance is made, his personal representa- tives must pay for the land thus bargained for, which, of course, descends to his heirs-at-law. Thus, the money which A 'was to pay for the land is regarded, in equity, as converted into land. So, if B dies before making the conveyance to A, his personal representa- tives can bring an action for specific performance against A, and the money so obtained for the land goes to the personal representatives, to be distributed according to law. Conversion depends largely upon Maxim 8. IX. Under Adjustment four topics may be con- sidered, contribution, exoneration, subrogation, and mar- shalling of assets. i. The right of contribution arises when one of several parties who are jointly liable for the payment of a debt, pays the whole of it for the benefit of all. The princi- ple of contribution is applied most frequently in the case of sureties? Originally, the surety paying the whole debt had no common-law remedy against his co- sureties. Later, a common-law action was allowed on the ground of an implied promise by the co-sureties to pay their share of the debt. 1 Bisph. Eq. 307. * Id. 328 et seq. EQUITY. I75 The equitable remedy is superior, however, because it can enforce contribution from the personal representa- tives of a deceased surety, and, in case any of the sureties are insolvent, can compel the solvent sureties to pay their proportional amounts, without regard to the insolvent sureties. 2. By exoneration is meant the right of those who are successively or secondarily liable, to look for reim- bursement to those who are previously or primarily liable. 1 Thus, if a surety pays a debt, he can proceed against his principal, and a surety who by his contract is liable only upon the default of his principal or of a prior surety, can proceed against either for reimburse- ment. 3. Subrogation is the right by which a person who is secondarily liable for a debt, and has paid it, is put in the place of the creditor, and has the right to receive from the creditor all other security which he held against the principal debtor." Thus, if A holds a note of B's, secured by a mortgage, and C is surety on the note, and, upon default of payment by B, pays it, C stands in the place of A, so far as the mortgage is con- cerned, and can compel an assignment of the mortgage by A. 4. By marshalling of assets is meant that if one party has a lien on, or interest in, two funds for the satisfac- tion of a debt, and another party has a lien on, or interest in, but one of the same funds for the satis- faction of a debt, the second party can compel the first party to resort to that one of the funds on which the second party has no claim, before he resorts to the other fund. 3 Thus, if A has a mortgage on lots I and 2, and B has a mortgage on lot 2 only he can compel A to exhaust the security afforded by his 1 Tied. Eq. 530. 5 Bisph. Eq. 335; see Tied. Eq. 531. * I Story Eq. Juris. 633. A REVIEW IN LAW AND EQUITY. mortgage on lot i, before he resorts to his mortgage on lot 2. Instead, however, of B's restraining A from resorting to his mortgage on lot 2, the more usual way is to subrogate B to all of A's rights, after A has satisfied his claim in whatever way he sees fit. 1 X. Equitable liens are liens enforced by courts of equity only." They differ from common-law liens in that possession is not essential. 3 The chief equitable lien is the vendor s lien for un- paid purchase-money in case of the conveyance of land. This lien can be enforced against all parties who take with notice of it. Thus, if A conveys land to B, giv- ing the latter the deed, and before payment of the purchase-money B conveys to C, who takes with notice of the fact that the purchase-money has not been paid, 4 A can enforce, by a bill in equity, his lien on the land in the hands of C. This lien is not recognized in many States, and in others only with qualifications/ An equitable mortgage is one created by the deposit of title-deeds with a creditor as security for a debt.' In some States this is recognized as creating a mort- gage on the land, as between the parties, which may be enforced in equity as a lien on the land. 1 Bisph. Eq. 341. 2 Bouv. Law Diet., sub. Lien. 3 Bisph. Eq. 351. Id. 356. 6 Id- 353- 6 Id. 357- CHAPTER XXVIII. EQUITABLE REMEDIES. THERE are eleven equitable remedies of chief import- ance, specific performance, injunctions, re-execution, re- scission and cancellation of written instruments, account, creditors' bills, bills of discovery, partnership bills, bills quia timet, bills of peace, bills of interpleader, bills to take testimony de bene esse. I. By specific performance is meant the actual per- formance of a contract by the party bound to perform it. 1 As a rule, equity will compel the specific per- formance of a contract when the common-law remedy of damages for its breach is inadequate? Specific performance of contracts for the transfer of real property is enforced most frequently because, as a rule, a breach of contract in regard to personal property can be adequately remedied by an action for damages. If, however, this remedy is not adequate, a contract in regard to personalty will be enforced specifically as readily as one in regard to realty. Thus, if A wishes to obtain 1,000 shares of stock fora particular purpose, and B has agreed to sell him 10 shares, which are the last obtainable, and which will make up the desired number, equity will compel B to transfer his 10 shares to A. 3 In order that a court may decree the specific per- formance of a contract, four things are essential. 4 1 Bouv. Law Diet. * 2 Story Eq. Juris. 716. 3 Id. 717 et seq.; Bisph. Eq. 364, 368. 4 Bouv. Law Diet., sub. Spec. Per.; see Bisph. Eq. 372 et seq.; 3 Pom. Eq. Juris. 1405 et seq.; Tied. Eq. 497. 178 A REVIEW IN LAW AND EQUITY. 1. The contract must be founded upon a valuable consideration, and this consideration must be proved, though the contract be under seal. 1 2. The enforcement of the contract must be prac- ticable? 3. The specific performance of the contract must be actually necessary to the plaintiff, and not oppressive to the defendant. 3 4. When a contract is required to be in writing by the statute of frauds, it must be in writing if specific performance is asked. 4 The specific performance of contracts to convey land is, however, granted in three cases, though the contract is not in writing.* (a). When there has been a part performance. Thus, if A orally agrees to sell land to B, and B takes pos- session and erects a building on the land, B can compel specific performance of the contract on the part of A. 8 What amounts to a part performance sufficient to take the case out of the statute, depends upon the circum- stances of each case. (b\ When the reduction of the contract to writing has been prevented by fraud. Thus, if an intended husband promises to have a marriage settlement re- duced to writing, and by fraud prevents its being done, and the marriage occurs, the agreement in regard to the marriage settlement can be enforced specifically. 7 (c). When in an action for specific performance, the 1 Lear v. Chouteau, 23 111. 39; Smith v. Phillips, 77 Va. 548; Thompson et al. v. Allen, 12 Ind. 539. * Johnson v. Railroad Co., 3 DeG. M. and G. 914; Marble Co. v. Ripley, 10 Wall. 339. 3 i Beasl. Ch. 497 ; 2 Jones Eq. 267 ; Adams Eq. *83 ft seq. 4 Bisph. Eq. 382 ; 2 Story Eq. Juris. 752 et seq. 5 Id. 383 ; Id. 755, 759, 768. 6 Maddison v. Alderson, 8 App. Cas. 474 ; Wainwright v. Talcott, 60 Conn. 43. 1 Montacute v. Maxwell, i P. Wins. 618 ; Wharton's Ev. 911. EQUITABLE REMEDIES. 179 defendant in his answer admits the oral contract, and does not set up the statute in defence. 1 II. Injunctions. An injunction is a prohibitory writ, issued by the authority of a court of equity, to restrain one or more of the parties to a proceeding in equity from doing, or permitting those under their control to do, an act which is regarded as unjust or in- equitable so far as the rights of other parties to the proceedings are concerned. 3 With regard to their nature, injunctions are divided into two classes. 1. Mandatory, or those commanding the defendant to do a particular thing. 3 2. Preventive or prohibitory, or those commanding the defendant to refrain from some act. 4 With regard to the time when issued, injunctions are divided into two classes. 5 1. Interlocutory or preliminary, or those granted to restrain the defendant from doing some act, either temporarily or during the pendency of the suit. 2. Final or perpetual, or those which are issued in the final decree of the court, when the rights of the parties are finally adjudicated and disposed of by the order or decree of the court, and by which the defend- ant is perpetually enjoined from doing the act in ques- tion.* ' Injunctions are resorted to most frequently to pre- vent waste, nuisances, trespass, to protect copyrights, patent-rights, trade-marks, and property pending litiga- tion/ 1 Harris v. Knickerbocker, 5 Wend. 638 ; MeGowen v. West, 7 Mo. 569 ; Browne Stat. Frauds 476. 9 Bouv. Law Diet, and authorities cited. 3 Joyce Injunctions 1309. 4 Bisph. Eq. 4OL 5 Kerr Injunctions, Chap. II. 6 Kershaw v. Thompson, 4 Johns. Ch. 610. 1 Bisph. Eq. 428 et seq. ISO A REVIEW IN LAW AND EQUITY. III. Re-execution is resorted to when written instruments have been lost or destroyed. It is the principal remedy when a deed has been lost, thus de- stroying a link in a chain of title. 1 Reformation is the remedy by which an instrument is reformed so as to correctly express the intention of the parties. It is resorted to most frequently in cases of mistake or fraud? The rescission and cancellation of instruments depend upon the discretion of the court, and decrees to that effect are made when necessary for the protec- tion of the parties, as when forged instruments are ordered to be given up, or a deed to be cancelled as being a cloud on the title. 3 IV. Bills of account were resorted to because of the inadequacy of the common-law remedy. Equitable jurisdiction is exercised chiefly in three cases. 4 1. In mutual accounts. At common law it was prac- tically impossible to investigate a mutual account with a jury. 2. In complicated accounts. 3. When there is a fiduciary relation existing be- tween the parties. Having jurisdiction over such parties in other relations, equity naturally assumed jurisdiction in matters of account. No bill in equity can be brought on an account stated. Here the common-law remedy is sufficient. 6 To surcharge an account is to show that a proper credit has been omitted. To falsify an account is to show that an improper charge has been inserted. 6 V. A creditors' bill is a bill filed by creditors for the purpose of collecting their debts out of property 1 Bisph. Eq. 467- 2 Tied. Eq. 506. 3 Id. 508. 4 Bisph. Eq. 484 ; 3 Pom. Eq. Juris. 1421. 5 Bisph. Eq. 485. 6 Id. 486, citing Pit v. Cholmondeley, 2 Ves. Sr. 565. EQUITABLE REMEDIES. l8l of the debtor which cannot be reached at common law. Judgment creditors alone can resort to a creditors' bill. By this bill, equitable property belonging to the debtor may be reached, and also property transferred for the purpose of defrauding creditors. It must be shown that the creditor has exhausted his common-law remedy. This is done by alleging and proving that he has obtained judgment, and that execution has been taken out and returned unsatisfied. 1 VI. A bill of discovery is one brought to compel a defendant to disclose facts within his knowledge, or to produce instruments in his possession, in order to main- tain the right or title of the party bringing the bill, in some proceeding in another court. At common law, no party in interest could give evidence in a suit, and as it frequently happened that the plaintiff's case depended upon facts or documents in the knowledge or possession of the defendant, equity was resorted to through a bill of discovery to obtain the needed information. With the change in the common-law rules of evidence, bills of discovery have largely fallen into disuse. 2 VII. Partnership bills are bills brought for the dis- solution of a partnership, the protection of its property, an account, and a distribution of the assets. None of these ends can be fully or satisfactorily obtained at law ; hence equity has assumed jurisdiction in matters pertaining to the dissolution and winding up of part- nerships. 3 VIII. Bills quia timet are bills brought to prevent wrongs or anticipated mischiefs. 4 The remedy given depends upon the circumstances of each case. Thus, if a fund in the hands of trustees is likely to be squan- 1 Bisph. Eq. 575 ft seq. 5 Id. 556 et seq. ; z Story Eq. Juris. 688 et seq. * Id. 505 et seq. 4 2 Story Eq. Juris. 826. 1 82 A REVIEW IN LAW AND EQUITY. dered or diverted from its original object, equity will remove the trustees and appoint others. Other cases may require the appointment of a receiver, or the granting of an injunction, as against the commission of waste. 1 BILLS TO QUIET TITLE are classed among bills quia timct. Thus, if a title is clouded by any instrument, whether of record or not, which has become inoperative, equity will decree its cancellation. 2 IX. Bills of peace are bills filed to prevent the recurrence of litigation by a numerous class insisting on the same right, or to prevent the same person from prosecuting anew an unsuccessful claim.* In the first case, the court makes up an issue to determine the right, and this determination is conclusive on all parties. In the second case the court issues an in- junction against further litigation of the claim. This course was resorted to most frequently in the action of ejectment. Here a decision at common law in favor of the apparent plaintiff did not prevent recourse to the action again by the actual plaintiff. Hence, when the title to land was tried five times by ejectment, with the result in favor of the defendant each time, the court granted a perpetual injunction against further litigation of the claim. 4 X. Bills of interpleader are bills filed by a third person, who, not knowing to whom he ought to render a debt or a duty, and fearing that he may be injured by some of the claimants, asks that they may be directed to interplead, so that the court may decide to whom the debt or duty should be rendered. 5 Thus, if A de- posits money with B, and C then claims to be the owner of the money, B is not compelled to pay the 1 2 Story Eq. Juris. 826. * Bisph. Eq. 575. 3 See Id. 415 et seq. ; 2 Story Eq. Juris. 852 et seq. 4 Earl of Bath v. Sherwin, Free. Ch. 261. 5 Bouv. Law Diet, and authorities cited. EQUITABLE REMEDIES. 183 money to either A or C, but can file his bill of inter- pleader to have the ownership of the money determined as between A and C. XI. Bills to take testimony de bene esse are bills brought to take the testimony of a witness to a fact material to the prosecution of a suit at law which has been commenced, and when there is reason to fear that otherwise the testimony may be lost before the time of trial. This was resorted to when the witness was old or infirm, or was about to leave the country, or when there was but one witness to the fact. 1 This bill has fallen into disuse through the power given to common-law courts to take testimony through inter- rogatories. Bills to perpetuate testimony are bills to preserve testimony which is in danger of being lost before the matter to which it relates can be made the subject of a trial. They differ from bills de bene esse in that in the latter legal proceedings have been begun.* 1 2 Story Eq. Juris. gg 1513, 1514. l Id. 1505. CHAPTER XXIX. PLEADING. An action is a lawful demand of right. 1 Actions are divided into classes. 1. Criminal actions. 2. Civil actions. Civil actions are divided into two classes. 1. Legal actions. 2. Equitable actions. Legal actions are divided into three classes. 1. Real actions. 2. Personal actions. 3. Mixed actions. i. Real actions are those which are brought for the specific recovery of lands, tenements, or heredita- ments. Mixed actions are such as partake of the nature of both real and personal actions, as those brought both for the specific recovery of lands, etc. and for damages sustained in respect to such property. 2 By statute 3 and 4 William IV. (1833-34), all real and mixed actions were abolished, with the exception of four. 3 (a). Writ of right of dower, resorted to by a widow to obtain a specific portion of her dower, part of it hav- ing been already received. (b). Writ of dower, resorted to by a widow to obtain her dower, no portion having as yet been assigned to her. (c). Writ of quare impedit, resorted to by a person 1 3 Bl. Comm. 116. * Steph. PI. *4- 3 Id. *4, *9 et seq. (184) PLEADING. 185 who has been presented to a benefice, but whose pos- session is prevented or obstructed. (d). Ejectment. This was originally a personal action resorted to by a tenant for years, to recover damages for ouster from the property leased to him. Owing to the intricacy, technicality, and delay incident to the ancient real actions, the action of ejectment was re- sorted to as a means of trying title to land. For, in this action, in addition to giving a judgment for dam- ages, the court also determined that the ousted tenant should recover possession of the lands. As originally resorted to as a means of trying title, the procedure was as follows: A, who is out of posses- sion of lands which are in the possession of D, and to which he claims title, makes a lease for years of the lands to B. B enters and is ousted, or put off the land by D. If not ousted by D, C, who is brought along for the purpose, and who is called the casual ejector, ousts the lessee, B. B then begins an action of ejectment against D, or, if ousted by C, against C. In the latter case C gives notice to D that he, C, has ousted B, that he had no right to do so, as he had no title to the land, and that D must appear to defend his title, or B will recover judgment for the lands. D appears, and the lease to B, his entry and ouster being proved, the only remaining question was that of title, namely, whether A could give a valid lease of the lands in question to B. In course of time, these proceedings became largely fictitious. There was no actual lease, entry, or ouster. B, the lessee, and C, the casual ejector, were imaginary parties. An action of ejectment was begun by B, the imaginary lessee, against C, the imaginary ejector, in which the making of a lease by A, the real claimant, entry by B, and ouster by C are alleged in the declara- tion. D, through the attorneys of the real plaintiff A, 1 86 A REVIEW IN LAW AND EQUITY. is notified, in the name of C, of the beginning of the action, and is advised to appear and defend. Before he was allowed to appear, however, he must, by a rule of court, admit the lease, the entry, and the ouster, and thus can only deny the title of A. 1 This action is no longer in use. The method of pro- ceeding in ejectment is regulated by statute. 2. Personal actions are those which are brought for the specific recovery of goods and chattels, or for dam- ages for breach of contract, or for damages arising from other injuries. 2 They are divided into two classes.' A. Actions ex contractu. B. Actions ex delicto. A. Actions ex contractu are those arising from a breach of contract. They are of three kinds. (a). Assumpsit. (b\ Debt, (c). Covenant. (a). Assumpsit is the action brought for the recovery of damages for the breach of a simple or parol contract. Assumpsit is of two kinds. (i). Special, or assumpsit brought on an express con- tract. (2). General, or assumpsit brought on implied con- tracts in certain cases. 4 The grounds of action on a general assumpsit usually fall under one of four common counts, namely : 5 [i.] Indebitatus assumpsit, where the plaintiff alleges a debt and a promise of payment made in considera- tion of the debt, the promise being an implied promise. [2]. Quantum meruit, where the plaintiff" sues to re- cover for services rendered, as much as he deserved. 1 See 3 Bl. Comm. 300; Steph. PI. *n. 2 Steph. PI. *3. 3 Heard Civ. PI. 23. 4 Bouv. Law Diet., sub. Assumpsit, and authorities cited. 8 Id., sub. Common Counts ; see 3 Bl. Comm. 160. PLEADING. 187 [3]. Quantum valebat, where the plaintiff sues to re- cover for goods sold and delivered, as much as they were worth. [4]. Insimul computassent, where the plaintiff sues to recover for the balance of an account. In these four cases, the contract is implied and not expressed in terms by the parties. Thus, if A did work for B, without any express contract, but B allowed A T to work for him without remonstrance and availed him- self of the results of his labor, A would sue B on an assumpsit quantum meruit. If A ordered goods of B ) and there was no agreement in regard to the price, B would sue A to recover their value in assumpsit quantum valebant. (b\ Debt was an action which lay where there was a liquidated i. e., certain sum due. Unless the exact sum alleged in the declaration to be due was proved to be due, the plaintiff recovered nothing. Thus, if A, suing in debt, alleged ten pounds as the amount due, but proved a claim of only nine pounds, judgment was for the defendant. 1 (c). Covenant was the action brought to recover damages for breach of contract under seal. 9 O B. Actions ex delicto are those which are brought to recover damages resulting from a tort. They are of four kinds. (a). Trespass, (b). Trover, (c). Replevin, (d}. Case. (a). Trespass is the action which lies for the recovery of damages arising from a trespass.' (For trespass see page 152.) (6). Trover lies to recover damages against one who 1 Steph. PL *i4 ; 3 Bl. Comm. 154- * Id - J 5 6 - 3 Steph. PL *i6. 1 88 A REVIEW IN LAW AND EQUITY. has, without right, converted to his own use, goods in which the plaintiff has a general or special property. This action originally lay against a person who had found goods and who refused to restore them to their rightful owner. Hence the name trover (to find). This action differs from trespass in that the injury is not necessarily forcible, and from replevin in that the action is for damages, and not to recover possession of the specific article. The measure of damages is the value of the property at the time of conversion, with interest. A demand for the surrender of the goods is necessary to sustain an action of trover. 1 (c). Replevin lies to regain the possession of per- sonal property which has been taken from the plaintiff unlawfully. It was originally resorted to to recover possession of chattels which had been taken by distress (the taking of a chattel from a wrong-doer into the custody of the party injured to procure satisfaction for the wrong done: usually resorted to as a means of col- lecting rent due). It may now be used in all cases of illegal taking. 2 (d\ Case (trespass on the case) is the action brought to recover damages when the other actions ex delicto do not lie, as in the case of injuries not committed with force, such as libel, or of forcible injury to an intangible right, such as the obstructing of a way, or when the tort is committed forcibly, but the injury is consequen- tial, and not immediate. Thus, if A drops a log on the foot of B, the proper action for the injury is trespass ; but if A negligently leaves a log in B's way, over which he falls, the proper action is trespass on the case. The action arose from statute Westminster 2nd (13 1 3 Bl. Comm. 152 ; Bouv. Law Diet. ; 2 Chit. PI. 618 (i6th Am. Ed.) ; i Id. *i76. 2 3 Bl. Comm. 145 ; Bouv. Law Diet. ; 2 Chit. PI. 591 (i6th Am. Ed.). PLEADING. 189 Edward I., 1287), which provided that if any cause of action arose for which there was no remedy, a new writ was to be framed by the clerks of chancery analogous to those already in existence, which were adapted to sim- ilar causes of action (in consimili casu). 1 ACTIONS (HOW COMMENCED). Actions, at common law, were ordinarily commenced by writ and summons. A writ is a mandatory precept or letter, issued by a court of competent jurisdiction, addressed to the sheriff of the county where the injury is alleged to have been committed, containing a condensed statement of the cause of complaint, and requiring him to command the defendant to satisfy the claim, and on his failure to comply, to summon him to appear in the court from which the writ was issued to account for his non-compli- ance. 2 The summons contains substantially the same mat- ter as the writ, and is served on the defendant person- ally, or by leaving it at his last usual place of abode. The writ and summons state the time at which the defendant is to appear in court, and this time is called the return day of the writ. On the return day, the plaintiff enters the writ,i. e., deposits it with the clerk of the court from which it was issued, by whom the suit is entered on the records of the court. On the return day, or within a certain time thereafter, the defendant must appear, either in person or by counsel. The appearance consists in requesting the clerk to enter on the records the attorney's appearance for the defendant. If the defendant fails to appear within the 1 See Bouv. Law Diet., sub. Case ; Steph. PI. "17 ; 3 Bl. Comm. 122 ; 2 Chit. PI. *i42 (ifith Am. Ed.). 2 See Burrill Law Diet. ; Gould PI. 15 ; Heard Civ. PI. 19. 190 A REVIEW IN LAW AND EQUITY. proper time, he is defaulted, and judgment entered for the amount claimed by the plaintiff. On the entry of the case by the plaintiff and the appearance by the de- fendant the pleadings begin. 1 1 See Heard Civ. PL 33, 34. Consult works on Local Practice. CHAPTER XXX. THE PLEADINGS. The pleadings consist of 1. The Declaration. 2. The Demurrer or Plea. 3. The Replication. 4. The Rejoinder, Surrejoinder, Rebutter, Surre- butter, etc. 1. The declaration is a statement of the plaintiff's cause of action. 1 2. If, assuming the plaintiff's allegations to be true, the defendant thinks that, as a matter of law, there is no ground for action, he demurs to the declaration, /'. e., declines to proceed further until it has been decided whether, as a matter of law, the plaintiff is entitled to any relief. A demurrer thus raises an issue of law. An issue is a point affirmed on one side and denied on the other? Demurrers, as regards their nature, are of two kinds. (a). Demurrers to matters of substance. (b\ Demurrers to matters of form. Demurrers, as regards their form, are of two kinds. (a). General, or those excepting to the sufficiency of the declaration in general terms. (b). Special, or those specifying the particular ground of exception. A general demurrer is sufficient to a matter of sub- stance ; a special demurrer is necessary to a matter of form. 9 1 Steph. PI. *2g. * Bouv. Law Diet. 3 Steph. PI. *44, *I4<>. (190 192 A REVIEW IN LAW AND EQUITY. If the defendant does not demur, he is obliged to answer the declaration by some matter of fact. In so doing he is said to plead. A plea is the defendant's answer by matter of fact? Pleas are divided into two classes. A. Dilatory pleas. B. Peremptory pleas. A. Dilatory pleas are those tending to defeat the action on the ground that it is brought before the wrong court, or by or against the wrong persons, or in an improper form. Dilatory pleas are divided into three classes. (a). Pleas to the jurisdiction, by which the defendant excepts to the jurisdiction of the court. . (b). Pleas in suspension of 'the action, which show some ground for not proceeding in the suit at present, such as the excommunication of the plaintiff. (c). Pleas in abatement, or those showing some mat- ter of fact tending to impeach the correctness of the writ or declaration, which defeats the action for the present, but which does not debar the plaintiff from re- commencing it in a different way. Among the pleas in abatement, six are most important. 2 [i]. Coverture of the plaintiff. 3 [2]. Death of the plaintiff either before or during the commencement or pendency of the suit. 4 [3]. Infancy of the plaintiff, unless he appears by guardian or next friend. 5 [4]. Misjoinder, or the joinder of improper plaintiffs. 6 [5]. Non-joinder of all the parties interested, either as plaintiffs or defendants. 7 [6]. Misnomer of either plaintiff or defendant. 8 1 Steph. PI. *45 et seq. * Bouv. Law Diet., sub. Abatement. 3 i Chitty PI. 439. 4 i Arch. Civ. PI. 304. 5 3 Bl. Comm. 301. 6 i Chit. PI. 8. 7 i Arch. Civ. PI. 309 ; i Chit. PI. 12. 8 Id. 451. THE PLEADINGS. 193 B. Peremptory pleas, or pleas in bar, are those which deny that the plaintiff has any cause of action. They are divided into two classes. 1 (a). Traverses, or pleas which deny all, or some essential parts of the averments of fact contained in the declaration. (b\ Pleas by way of confession and avoidance, which, while admitting the averments of the declaration, allege new facts which obviate or repel the legal effect of the averments of the declaration. Such a plea, in an action to recover damages in trespass, would be a re- lease, or payment. A traverse at once raises an issue of fact. 3. If the defendant makes a dilatory plea, or a plea by way of confession and avoidance, the plaintiff can de- mur to the plea, or, in turn, can plead to it by a traverse, or by way of confession and avoidance. Such pleading on the part of the plaintiff is called the replication? 4. A replication by way of demurrer or traverse results in an issue ; but if it be by way of confession and avoidance, the defendant can, in his turn, demur, or plead a traverse, or by way of confession and avoid- ance, to the plaintiff's replication. Such pleadingly the defendant is called the rejoinder. In the same way the defendant's rejoinder may be followed by the plaintiff's surrejoinder, the plaintiff's surrejoinder by the de- fendant's rebutter, the defendant's rebutter by the plaintiff's surrebutter, etc. This is the simple and direct course which the plead- ing takes. It is sometimes varied by pleas puts darrcign continuance. These are pleas put in after issue has been joined, for the purpose of introducing new matter, or matter which has come to the knowledge of the party pleading it subsequent to the joinder of issue. 1 Steph. PI. *52 ft seq. 8 Id. *58 et seq. 194 A REVIEW IN LAW AND EQUITY. The words " puis, etc.," mean "since the last con- tinuance." By an ancient practice, when an adjourn- ment of the proceedings occurred for any purpose, an entry was made stating when the parties were to come into court again, and these entries were called continu- ances. Therefore a plea, setting forth any matter arising since the last continuance, was given this name. Such a plea would be that of a release given by the plaintiff since the beginning of the action. 1 Demand of oyer occasionally arises in the course of pleading. 2 When either party to an action alleges any deed, he is obliged to make profert of it, i. e., produce it in court with the pleading in which it is alleged. When the pleading was oral, the deed was actually produced in court. When the pleadings were embodied in writ- ing, to make profert was merely to allege that the party showed the deed in court, it being actually retained in his own custody^When profert is thus made, the other party, before he pleads, can demand oyer, i. e., can demand to hear the instrument read. When the plead- ings were oral, the deed was actually read. Now the practice is for the party demanding oyer to send a note to the attorney of the party making profert, containing the demand. On this, the latter is obliged to give the former a copy of the deed. When the parties are at an issue of fact, the steps in the proceedings are as follows : 1. The trial. 2. The verdict. 3. Means resorted to for setting aside the verdict. 4. Judgment. 5. Execution. I. The trial is the decision of the question of fact. 1 Steph. PI. "64 ; 2 Chit. PI. *688 (i6th Am. Ed.). 2 Steph. PI. *66 et seq. THE PLEADINGS. 195 There are four methods of trial at common law, the first of which only is in common use. 1 (a). Trial by jury, (b). Trial by the record, (c). Trial by certificate, (d). Trial by witnesses. (ff). Trial by record is resorted to when the issue is the existence of a record. Here the question is deter- mined by an examination of the record by the court. (c). Trial by certificate was used chiefly in the action of dower, in which the tenant may plead that the de mandant " was never accoupled to her alleged husband in lawful matrimony." On this issue, the court direct- ed that it be tried by the diocesan of the place where the church in which the marriage was alleged to have taken place was located, and that the result be certified to the court at an appointed day. (d}. Trial by witnesses was used in issues arising on the death of the husband in actions of dower. The court directed that both parties produce their witnesses in court, when they were examined by the judges, who decided the issue without the intervention of a jury. 2. The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to it in the trial of a cause. Verdicts are of two kinds. 8 (a). General, by which the jury pronounces either in favor of the plaintiff or defendant. (). Special, in which the jury finds that certain facts exist, and leaves the application of the law, and the conclusion to be drawn from these facts, to the court. 3. Upon the rendering of the verdict, the party against whom it is given may resort to one or more of five measures to avoid its effect.' 1 Steph. PI. *77 ft seq. ! Bouv. Law Diet. 3 Steph. PI. *94 et seq. 196 A REVIEW IN LAW AND EQUITY. (a). He may move for a new trial on one of six grounds. [i]. That the judge misdirected the Jury. [2]. That the judge admitted or rejected evidence con- trary to law. [3]. That the verdict was contrary to the evidence and the weight of the evidence. [4]. That a new and material fact has come to light since the trial. [5]. That the damages are excessive. [6]. That the jury was guilty of misconduct, such as casting lots to determine its verdict. (6). The defendant may move in arrest of judgment, i. e., that judgment for the plaintiff be withheld, on the ground that there is some error appearing on the face of the record. The defect must be one of substance, and not of form merely. (c). The plaintiff may, in some cases, move for judg- ment, non veredicto obstante, /. e., without regard to the verdict. This motion is made when the plaintiff, on a re-examination of the pleadings, conceives some of the pleadings of the defendant to be bad in substance, which might have been made the subject of de- murrer. The verdict, having merely decided that the plea was true in point of fact, the insufficiency of the plea in point of law is not affected thereby, and the question of insufficiency can be raised by this motion. (d}. A motion for a repleader may be made when the defeated party conceives that the issue joined and de- cided by the verdict was an immaterial issue. (e). The defeated party may move for a venire facias de novo (the name of the writ by which jurors are sum- moned to attend), when, because of some irregularity or defect in the proceedings on the first venire, or on the trial, the proper effect of the writ (venire facias] has been frustrated, or the verdict become void in law ; as THE PLEADINGS. 197 when the jury has been improperly chosen, or has given a defective verdict. The effect of the motion, if grant- ed, is practically that of a motion for a new trial. 4. Judgment is the sentence of the law, pronounced by the court, as a result of proceedings instituted for the redress of an injury. 1 The nature of the judgment depends wholly upon the nature of the issue and its decision by the jury. 5. On the rendering of judgment in favor of the plaintiff, he is entitled to an execution against the de- fendant. An execution is a writ which directs and authorizes the officer to carry into effect the judgment. It directs him to take possession of the property of the defendant (and in some cases, in want of property, to arrest the defendant 'and commit him to jail) and sell the same for the satisfaction of the judgment. 2 If, upon an examination of the whole record, it ap- pears that judgment has been given for one of the parties, when it ought to have been given for the other, this constitutes error in law. The remedy is a writ of error, requiring that the record be sent to a court of appellate jurisdiction, that the error may be corrected. The error must be one of substance, however, and not merely of form. 3 1 3 Bl. Comm. sqg. * Bouv. Law Diet. 3 Steph. PI. *iig. CHAPTER XXXI. RULES OF PLEADING. THE rules which govern pleading may be divided into seven classes. 1. Those tending to the production of an issue. 2. Those tending to produce a material issue. 3. Those tending to produce a single issue. 4. Those tending to produce a certain issue. 5. Those tending to prevent obscurity and confusion. 6. Those tending to prevent prolixity and delay. 7. Certain miscellaneous rules. 1. There are three rules in this class. 1 (a}. Alter the declaration, the parties at each stage must demur, or plead, either by way of traverse or of confession and avoidance. (b\ Upon a traverse, issue must be tendered. (c\ When issue is tendered, it must be accepted. 2. In this class the general rule is that all pleadings must contain matter pertinent and material. Among the special rules, two are especially important. 2 (a). A traverse must not be taken on an immaterial point. (). A traverse must not be too large, or too narrow, i. e., a traverse of an allegation should take in no more of that allegation than is material, nor should it omit any material portion of the allegation. 3. Two rules are of chief importance. 3 (a}. Pleadings must not be double. This rule, as 1 Steph. PI. *I37 et seq. 2 Id. *24O et seq. 3 Steph. PI. *25i et seq. (198) RULES OF PLEADING. 199 applied to the declaration, means that it must not, in support of a single demand, allege several distinct mat- ters, by any one of which that demand is sufficiently supported. In regard to the subsequent pleadings, the rule means that none of them is to contain several dis- tinct answers to the pleading which precedes it. The effect of this rule is qualified by allowing the plaintiff to unite several counts in the same declaration. Consequently the defendant can offer different pleas, according to the nature of the different counts. As a rule, the plaintiff can join, in one declaration, claims arising ex contractu, such as a debt on a bond and a debt on a simple contract, and claims arising ex delicto, as in the case of several trespasses ; but claims ex contractu and ex delicto, as a debt and a trespass, cannot be joined. 1 The parts of the declaration in which the different causes of action are stated, are called counts. (b). It is not allowable to plead and demur to the same matter. 4. In this class there are seven rules. 2 (a). The pleadings must have certainty of place ', i. e., the venue of the action, namely, the county in which it is to be tried, must be stated in the declaration. Actions, with regard to venue, are divided into two classes. 3 (i). Local, or those the cause of which could have arisen in some particular county only, as any of the real actions. (2). Transitory, or those the cause of which might have arisen anywhere. In local actions, the venue must be truly laid, i. e., the action must be brought in the county where the cause of action arose. 1 i Chit. PI. *22i et seq. (i6th Am. Ed.)- * Steph. PI. *2 7 Q. * Id " * 28 9- 2OO A REVIEW IN LAW AND EQUITY. In transitory actions, the venue may be laid in what- ever county the plaintiff chooses. The matter of venue is now largely regulated by statute. (b). The pleadings must have certainty of time. In personal actions, the day, month, and year when each traversable fact occurred must be alleged. As a rule, the time is not regarded as being material to the issue, so that the pleader is not obliged to prove the time as alleged. (c). The pleadings must specify quality, quantity, and value. (d}. The pleadings must specify the names of parties. (e). The pleadings must show title in the party bring- ing the suit. (/). The pleadings must show authority, i. e., when a party justifies under a writ, warrant, or precept, or any other authority whatever, he must set it forth par- ticularly in his pleadings. (<") 1 general, whatever is alleged in pleading, must be alleged with certainty. 5. There are eight rules in this class. 1 (a). Pleadings must not be insensible, or repugnant, i. e., they must be intelligible, and consistent with them- selves. (b\ Pleadings must not be ambiguous, or doubtful in meaning, and when two constructions present them- selves, that one shall be adopted which is most un- favorable to the party pleading. (c). Pleadings must not be argumentative, i. e., they must state the facts in an absolute form, and not leave them to be collected by inference and argument. (d\ Pleadings must not be hypothetical, or in the alternative. (e). Pleadings must not be by way of recital, but must be positive in form. 1 Steph. PI. *377- RULES OF PLEADING. 2OI (/). Things are to be pleaded according to their legal effect and operation. (g). Pleadings should have their proper formal com- mencements and conclusions. (//). Pleading which is bad in part is bad altogether. 6. There are three rules under this class. 1 (a). There must be no departure in the pleadings. A departure occurs when, in any pleading, the party de- serts the ground which he took in the last antecedent pleading, and resorts to another. (b}. When a plea amounts to the general issue, it should be so pleaded. (c). Surplusage is to be avoided. By surplusage is meant unnecessary matter of whatever description. 7. There are seven rules in this class. 3 (a). The declaration must be conformable to the writ. (&). The declaration should have its proper commence- ment, and should, in conclusion, lay damages. (c). Pleas must be pleaded in due order. (d}. Pleas in abatement must give the plaintiff a better writ, or declaration, i. e., the plea must correct the mistake of the plaintiff so as to enable him to avoid the same mistake in framing a new writ, or declaration. (e). Dilatory pleas must be pleaded at a preliminary stage in the suit. (/). In all pleadings where a deed is alleged under which the party claims or justifies, profert of such deed must be made. (). All pleadings ought to be true. 1 Steph. PI. *4io et seq. * Id. *426 et seq. CHAPTER XXXII. . PLEADING IN EQUITY. Pleading in equity is begun by a bill, which is a complaint addressed to the Chancellor, containing the names of the parties, a statement of the facts on which the plaintiff relies, and the allegations which he makes, with an averment that the acts complained of are contrary to equity, and a prayer for relief and for proper process. 1 A bill in equity usually consists of nine parts. 2 1. The address to the court having jurisdiction. 2. Names of the plaintiffs. 3. Statement of the plaintiffs' case. 4. A general charge of confederacy on the part of the defendants. 5. Allegations of the pretences of the defendants. 6. Clause of jurisdiction. 7. Prayer that the defendants may answer the plain- tiffs' interrogatories. 8. Prayer for relief. 9. Prayer te* process. Upon the filing of the bill, a writ of subpoena is issued against the defendants, commanding them to appear and answer the plaintiffs' interrogatories, and to submit to such a decree as the court may make. Defence. The forms of defence are four. 3 i. Disclaimer, which denies that the defendants have any interest in the matter. 1 Adams Eq. *soi et seq. 2 Mitf. PI. 49 (sth Ed.)- 3 Adams Eq. *332. (202) PLEADING IN EQUITY. 203 2. Demurrer, as in pleading at law. 3. Plea, which avers some matter of avoidance, or denies some one allegation of the bill, and rests the de- fence on that issue. 4. Answer, which puts on record the whole case of the defendants, whether by way of demurrer, of avoid- ance, or of denial, and raises one or more issues, as the case may be. At the hearing of the cause, the pleadings and evi- dence are offered, and the court makes its decree. If the defendant appears, it is an ordinary decree. If he does not appear at the hearing, it is a decree by default. If he has never appeared in the suit, or if, after appear- ing, he has neglected to answer, it is a decree pro con- fessed RULES OF PLEADING. There are four chief rules of pleading relative to the bill. 1. It must state a consistent case on behalf of all the plaintiffs ; otherwise the misjoinder will be fatal to the suit. 8 2. It must state the case in direct terms, and with reasonable certainty? 3. The relief asked should be pointed out with reasonable clearness? 4. The bill should not be multifarious. Multifarious- ness is of two kinds. 5 (a). When the plaintiff has several distinct claims against the same defendant and prays relief, in a single suit, in regard to all. (ft). When a plaintiff, having a valid claim against one defendant, joins another person as defendant in the same suit, with a large part of which he is unconnected. 1 Adams Eq. *33i. * Id. *3O2. 3 Id. *3<>3 and note. 4 Id. *3og. 5 Id. *3og et seq. 204 A REVIEW IN LAW AND EQUITY. There are five chief rules of pleading in regard to the defence. 1 1. The//ra must raise a single issue. 2. The averments of a plea must have the same certainty as those of a plea at law. 3. The plea must be verified by the defendant's oath. 4. In case an answer is filed, which is the ordinary proceeding, it must state the defendant's case in direct terms and with reasonable certainty, and must answer on oath as to all facts material to the plaintiff's case. 5. The defendant must answer distinctly and com- pletely, without needless prolixity, and to the best of his information and belief. ADDITIONAL BILLS. Five bills in equity, as having special reference to pleading in equity, are mentioned here. 1. A bill of revivor is a bill brought to continue a suit which has abated before its consummation, as by death of a plaintiff. 2 2. A bill of review is one brought to have a decree of the court reviewed, altered, or reversed. It must be brought on one of two grounds. 3 (a). For error in point of law. (b). For some new matter of fact, discovered since the decree, and which could not, with reasonable dili- gence, have been discovered before. 3. A bill in the nature of a bill of revivor is used when the death of a party, whose interest is not determined by his death, is attended with such a transmission of his interest that the title to it, as well as the person en- titled, may be litigated in a court of equity. 4 4. A supplemental bill is one brought in addition to 1 Adams Eq. *34o, *342, '344. 8 Mitf. Ch. PI. 83 ; Story Eq. PI. 369. 3 Id. 403. 404. 4 Id. 377, 378. PLEADING IN EQUITY. 205 the original bill, to supply some defect which cannot be remedied by amendment? 5. A bill in the nature of a supplemental bill is resort- ed to when the interest of the plaintiff or defendant wholly terminates, and the same interest rests in another person not claiming under him.* 1 Story Eq. PI. 332. * Id. 345. CHAPTER XXXIII. EVIDENCE. Evidence includes all the means by which any alleged matter of fact, the truth of which is submitted to in- vestigation, is proved or disproved. 1 Proof denotes the effect produced by evidence. There are seven so-called instruments of evidence, i. e., means through which evidence is obtained. 2 1. Judicial notice. Courts take notice of many things without the introduction of evidence regarding them, such as the extent of their own jurisdiction, the local divisions of their own countries, etc. 2. Public records, as the statutes. 3. Judicial writings, as depositions. 4. Public documents, such as those printed by the authority of Congress. 5. Private writings, as deeds and wills. 6. Testimony of witnesses. 7. Personal inspection by a jury, as when a view of a locality is taken. Evidence may be divided into three classes.' I. Direct evidence. II. Circumstantial evidence. III. Presumptive evidence. I. Direct evidence is that means of proof which tends to show the existence of a fact, without the intervention of any other fact* as when A testifies that he saw B strike C. 1 i Greenl. Ev. i. 3 Bouv. Law Diet., sub. Evidence. 8 i Greenl. Ev. 13, 14. 4 Bouv. Law Diet., sub. Evidence. (206) EVIDENCE. 207 II. Circumstantial evidence is that meana of proof which tends to prove a disputed fact, by proof of other facts which have a legitimate tendency to lead the mind to the conclusion that the fact which is sought to be proved does exist. 1 Thus, if the tracks of a horse are found in the snow, this circumstance furnishes grounds for concluding that a horse has at some time passed over the road. Presumptive evidence is some- times used as synonymous with circumstantial, but all presumptive evidence is not circumstantial, as many presumptions arise from arbitrary rules, not as logical inferences. Circumstantial evidence is of two kinds." 1. Certain. 2. Uncertain. i. Certain circumstantial evidence is such that the fact sought to be established necessarily follows from it : thus, if a body be found, with a knife in the heart, the conclusion that death resulted from violence is certain. (2). Uncertain circumstantial evidence is such that the fact sought to be established does not necessarily follow from it : thus, in the case just mentioned, the fact that the man was murdered would not necessarily follow from the knife's being in the heart. III. Presumptive evidence is that means of proof which shows the existence of one fact by proof of the existence of others from which the existence of the first fact may be inferred. 5 Presumptions are divided into two classes. 4 1 . Presumptions of law. 2. Presumptions of fact. I. Presumptions of law are those which arise in certain cases by force of the rules of law, which direct an inference to be drawn upon the proof of certain facts. 1 Bouv. Law Diet.; see i Starkie Ev. 478. * i Greenl. Ev. I3a. 3 Bouv. Law Diet., sub. Evidence. 4 I Greenl. Ev. 14 etsej. 2O8 A REVIEW IN LAW AND EQUITY. Presumptions of law are divided into two classes. (a). Indisputable presumptions. (6). Disputable presumptions. (a). Indisputable presumptions are those which admit of no averment or proof to the contrary, as that a man is supposed to contemplate the natural consequences of his own acts, or that an infant under the age of seven cannot commit a felony. (b\ Disputable presumptions are those in conse- quence of which a fact is inferred as existing, until some- thing is offered to show the contrary, as that a man is presumed to be innocent until he is proved to be guilty, sane until proved insane, etc. A^2. Presumptions of fact are the natural presump- / tions which appear, from common experience, to arise from the particular circumstances of any case. 1 Such a presumption would be the inference of guilt drawn from finding a knife with a broken blade in the pocket of a prisoner, if the other part of the blade was found stick- ing in the window of a house which had been entered through the window in question. RULES GOVERNING THE PRODUCTION OF TESTIMONY. There are four general rules under this head.' I. The evidence must correspond to the allegations and be confined to the point at issue. II. // is sufficient if the substance of the issue be proved. It follows that any departure from the sub- stance in the evidence introduced is fatal. Such a de- parture is termed a variance? /. e., a disagreement between the allegations and the proof, in some matter which, in point of law, is essential to the support of the charge or claim. III. The obligation of proving any fact lies upon the 1 Bouv. Law Diet., sub. Evidence ; i Starkie Ev. 27. * i Greenl. Ev. 50 et seq. 3 Id. g 63 ; 2 Rice Ev. 660. EVIDENCE. 209 party who asserts the affirmative of the issue, i. e., the burden of proof 'lies upon the party holding the affirm- ative. IV. The best evidence must be produced. This rule leads to another division of evidence into ' 1. Primary evidence. 2. Secondary evidence. 1. Primary evidence is the best possible evidence. Thus, the best evidence of a contract in writing is the writing itself. 2. Secondary evidence includes all evidence other than primary, as parol evidence of the contents of a written instrument. Rule IV. is applied most frequently to cases relating to the substitution of oral for zvritten evidence. These cases are divided into three classes. 2 1. Cases relating to instruments required by law to be in writing, such as records, deeds for the conveyance of land, and other contracts required to be in writing by the statute of frauds. In these cases oral evidence cannot be substituted for the written evidence required by law so long as the writing exists. 2. Cases relating to contracts which the parties have put in writing. The rule here is that the writing must be produced, or the impossibility of producing it be shown, before oral evidence can be introduced to show what its contents are. Oral evidence can be introduced to explain written con- tracts, but not to contradict, vary, or add to that con- tained in the written instrument. This rule applies only to parties and privies, however, not to strangers. 3 Thus, parties to a conveyance under seal, which states a con- sideration, cannot deny that there is a consideration, 1 I Greenl. Ev. 84. 9 Id. 85. 3 1 Greenl. Ev. 275, 279; see i Rice Ev. 254 et seq., and cases cited. 210 A REVIEW IN LAW AND EQUITY. though it may be shown that the actual consideration differs from that stated in the conveyance. Third parties, however, who are not privies, can show that there was no consideration. There is a striking exception to this rule excluding parol evidence, in the case of a conveyance, absolute in form, which is yet intended by the parties to have the force of a mortgage. In equity, the party making the conveyance can show that the conveyance was intended to operate as a mortgage, and upon tendering the amount due, can compel a re-conveyance. 1 The rule does not prevent parties from showing that a written contract has been waived and a different oral contract subsequently substituted in its stead. " Ambiguities in written contracts are of two kinds. (a). Patent. \b\ Latent. (a). Patent ambiguities are such as appear upon the face of the instrument, as in a grant in which no grantee is named. (b). Latent ambiguities are such as arise from some collateral matter, and do not appear upon the face of the instrument : as if A grants to B a farm lying in the county of C , and it appears that A has two farms in that county. Latent ambiguities may be explained by parol evidence ; patent ambiguities cannot be so explained? A receipt is not a contract, nor necessarily evidence of a contract. It is merely evidence of payment, and may be contradicted and disproved by parol evidence. If a receipt in full be given upon part payment of a claim whose amount is undisputed, with an agreement that the amount so paid shall be a settlement in full, the agreement is not binding, as being without con- sideration. But if a receipt in full is given upon part 1 i Rice Ev. 268, and cases cited. 2 i Greenl. Ev. 303. 3 Id. 297, 300, 301 ; i Rice Ev. 275. EVIDENCE. 211 payment of a claim whose amount is disputed, by way of compromise, with the agreement that the payment shall be accepted as payment in full, such agreement is binding, and is a bar to an action for a balance claimed as due. 1 3. Oral evidence cannot be substituted for any writ- ing, the existence of which is in dispute, and which is material to the issue between the parties. 2 HEARSAY. Hearsay denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests in part on the veracity and competency of some other person. 3 It is what one person heard some one else say. The general rule is that hearsay is inadmissible, on two grounds. 1. That, if admitted, it would practically amount to receiving testimony not given under oath.' 1 ' 2. That there is no opportunity for cross-examining the party actually making the statement. In five cases EVIDENCE which is APPARENTLY HEAR- SAY, IS ADMITTED as being really original evidence.* I . When the question at issue is whether a communi- cation was actually made, and not whether it was true, evidence of the statements of third parties is admissible as original evidence. Thus, a party may state the infor- mation on which he acted, in a question involving his good faith. 8 Also the replies given to an officer at the residence of an absent witness or of a bankrupt may be 1 See i Rice Ev. 231, 232 ; i Greenl. Ev. 305 ; 2 Par. Contr. '555, *68? note (8th Ed.). 8 i Greenl. Ev. 88. 3 Id. 99- 4 i Rice Ev. 370 ; 2 Best Ev. 493. 5 i Greenl. Ev. 100 et seq. 6 Taylor v. Willans, 2 B. & Ad. 845 ; Colman v. Southwick, 9 Johns. 45. 212 A REVIEW IN LAW AND EQUITY. given. 1 On this principle evidence of general reputa- tion, etc., may be introduced. 8 2. When bodily or mental feelings are to be proved, the expressions employed at the time in question may be given? such as the expressions of pain uttered by a person injured in an accident. 3. In cases involving pedigree, the acknowledgment of relationship by those from whom descent is claimed is admissible, as are also inscriptions on tombstones and family portraits. 4 4. Circumstances and declarations contemporaneous with the main fact, closely connected with it, and illus- trating its character, may be introduced as a part of the res gestce (things done) : such as expressions of pain immediately after an accident. 5 5. Certain entries made by third parties. Thus, entries made in the discharge of official duties are ad- missible if they are such as it was the duty of the person making them to make, if they are made in the regular course of business and contemporaneously with the original transaction, as in case of entries made by the cashier of a bank, or the charges made by a mer- chant or his clerk in his shop book, if made at the time of the transaction* In four cases THE RULE AGAINST THE ADMISSION OF HEARSAY EVIDENCE DOES NOT HOLD. 7 I. In matters of public and general interest. Thus, evidence is admitted of common reputation in regard to public facts, as the claim of a highway. This exception prevails in only two instances. 1 Crosby v. Percy, i Taunt. 364 ; Sumner v. Williams, 5 Mass. 444. 2 Walker v. Moore, 122 Mass. 501. 3 Insurance Co. v. Mosley, 8 Wall. 397. 4 Jackson v. Browner, 18 Johns. 37. 5 I Rice Ev. 377, and cases cited. 6 I Greenl. Ev. 116, 117, and cases cited. 1 Id. 127 ft sey. EVIDENCE. 2I 3 (a). In the case of ancient rights, (b). In regard to the declaration of persons supposed to be dead. 2. In matters relating to ancient possession, ancient documents are admitted. 3. In the case of declarations and entries made by persons deceased, and against the interest of the person making them. The fact that the declarations are against interest is regarded as a sanction equal to that of an oath. 4. In the case of dying declarations. The nearness of death is regarded as equivalent in force to an oath. Such declarations, to be admissible, must be made under a sense of impending death. ADMISSIONS AND CONFESSIONS. These subjects are usually treated under the head of hearsay. Under certain conditions, they are admissi- ble, being regarded as declarations against interest. An admission is the voluntary acknowledgment of certain facts. A confession is the voluntary acknowl- edgment of guilt. 1 Admissions are admissible in three cases. 1 1. When they are made by a party to the record in a suit, or by one identified in interest with him. 2. When made by parties, not parties to the record, but interested in the subject-matter of the suit, as of per- sons interested in a policy of insurance effected in the name of another, but for their benefit.* 7/3. In some cases when made by third parties who *are strangers to the suit, as in case of the admission of joint liability by a third party, evidence of which has been held sufficient to support a plea in abatement. 4 1 See i Greenl. Ev. 169, 170, 213. * Id. 171, 180, 181. 3 Bell v. Ausley, 16 East. 141. 4 Clay v. Langslow, i M. & M. 45. 214 A REVIEW IN LAW AND EQUITY. Confessions are of two kinds. 1 1. Judicial, or those made before a magistrate or court, in the course of legal proceedings. 2. Extra judicial, or all confessions other than judicial. The chief essential to a valid confession of either kind is that it be voluntary. Any threat, or anything in the nature of a threat, invalidates the confession and renders it incompetent. There must be no constraint of any kind." Herein the rule differs from that govern- ing admissions. Admissions made under any legal con- straint are good. 3 EVIDENCE EXCLUDED ON GROUNDS OF PUBLIC POLICY. Evidence of this kind comprises five classes. 1. Professional communications.*' As a rule this ap- plies only to communications made professionally by a client to his attorney. The attorney cannot be com- pelled, nor is he allowed to disclose such communica- tions. In some States, however, the exemption has been made by statute .to extend to communications made to physicians and clergymen. 5 2. Communications made \.Q judges and arbitrators* 3. Secrets of State, transactions between heads of departments and their subordinates, and proceedings of grand jurors. 7 4. Indecent matter, or that which is injurious to the feelings and interests of third persons. 8 5. Communications between husband and wife. 9 1 i Greenl. Ev. 216. s Id. 219 et seq.: 3 Rice Ev. 489 et seq. 3 Id. 193. 4 Id. 237 et seq.; Steph. Dig. of Ev. art. 115. 5 For review of statutes see i Greenl. Ev. 248 note (isth Ed.). 6 Id. 249. ' Id. 250 et seq. 8 Id. 253. Id. 254, see note (rsth Ed.). EVIDENCE. 215 WITNESSES. The attendance of witnesses is enforced by a subpoena, a writ commanding the witness to appear before the court at a certain time, to state what he knows in re- gard to the cause therein described. In case it is desired that the witness bring books or documents with him, a clause to that effect is inserted in the subpoena, which is then called a subpcena duces tecum (You shall bring with you). The fee, together with a certain amount for travel, both of which are fixed by law, must be tendered to the witness before he can be compelled to obey the commands of the subpcena. If a witness is in legal custody, his presence in court is secured by a writ called habeas corpus ad testificandum, directing the person having the .custody of the witness to have him in court on a certain day for the purpose of giving testi- mony. 1 If a witness does not appear in court, when properly summoned, and has no good excuse for his non-appear- ance, he is guilty of contempt of court, for which he may be arrested and punished by fine or imprisonment, or both. 2 COMPETENCY OF WITNESSES. At common law four classes of persons were incom- petent to act as witnesses. 3 1. Parties to the action. 2. Persons deficient in understanding. 3. Persons insensible to the obligation of an oath. 4. Persons who have pecuniary interests directly involved in the matter at issue. Testimony of parties of classes i and 4 is now rendered admissible by statute, while questions con- 1 i Greenl. Ev. 309, 31, 3". s Id. 319- 3 Id. 326 etseq. 2l6 A REVIEW IN LAW AND EQUITY. ceining class 3 vary with the statutes of the different States. When a person was sworn, and examined as to whether he was a party interested in the cause, he was said to be examined on his voir dire. 1 EXAMINATION. The examination by the party producing the witness is called the direct examination. The examination by the opposing counsel is called the m^w-examination. There are seven chief rules relating to the examina- tion of witnesses. 1. In direct examination, leading questions are not permitted. 2 Leading questions are such as suggest a desired answer to a witness, as : " You did so and so, didn't you ? " Such questions are proper on the cross-exami- nation. There are, however, four cases when leading questions are admissible on the direct examination. (a). When the witness is evidently hostile? (b). When some omission in the testimony is oc- casioned by lack of recollection? which may be assisted by a suggestion. (c). When the transaction involves many items and dates. (d). When the mind of the witness cannot be directed to the subject of inquiry without a specification of it. 5 2. A witness is permitted to assist his memory by the use of written instruments, memoranda, or entries in books. Writings may be used for this purpose in three cases. 8 1 Bouv. Law Diet., sub voir dire. 8 i Greenl. Ev. 434 et seq. ; i Stark. Ev. *i6g et seq. ; 2 Best Ev. 641 et seq. 3 Williams v. Eldridge, i Hill 249. 4 Cheeney v. Arnold, 18 Barb. 434. 6 Lowe v. Lowe, 40 la. 220. 6 i Greenl. Ev. 437 ; see 2 Rice Ev. 744. EVIDENCE. 217 (a). When the writing is used solely to assist the memory of the witness. 1 (b). When the witness remembers that he has seen the writing before, and remembers that, at the time he saw it, he knew that the contents were correct? (c). When the witness does not remember having seen the writing in question before, and remembers nothing contained in it, but from his knowledge that the writing is genuine, he is enabled to swear to the facts set forth in the writing. Thus a person, being shown a note with his indorsement upon it, can swear that the note passed through his hands. 3 3. While, as a rule, witnesses are obliged to testify to facts within their own knowledge, yet in some cases expressions of opinion or belief may be given, as in the case of experts, who, on the facts as testified to by other witnesses^ may express an opinion in regard to questions of sanity, etc. 4 4. A party is not allowed to impeach the credibility of his own witness. He may, however, introduce other witnesses to contradict statements made by a former witness. 5 5. When the right of cross-examination arises, it continues throughout the cause, so that a party subse- quently calling a witness whom he has previously cross- examined, to prove a fact in his own case, may cross- examine him in regard to this fact.* 6. Witnesses are not compelled to answer questions in four cases. 7 (a). When it appears that the answer will tend to ex- pose the witness to a criminal prosecution, or to any kind of punishment. 1 Reed v. Boardman, 20 Pick. 441. 2 Costello v. Crowell, 133 Mass. 352. 3 See i Stark. Ev. *i$4, Tail. Ev. 432. * i Greenl. Ev. 44. 5 Id. 442, 443; i Rice Ev. 609 ft seq. i Greenl. Ev. 447. ' Id. 45 1. 2l8 A REVIEW IN LAW AND EQUITY. (&). When the answer would subject the witness to pecuniary loss. 1 (c). When the answer has a direct tendency to dis- grace the character of the witness. This exception ap- plies only to collateral and irrelevant questions asked on cross-examination. (d). No person can be compelled to testify against himself in a criminal cause. 7. The credibility of a witness may be impeached in four ways. 2 (a). By disproving the facts to which he has testified, by the adverse testimony of other witnesses. (b). By showing that the witness has, at other times, made statements contrary to those given by him at the time of trial. (c). By a successful cross-examination. (d). By impeaching his general character for truth and veracity. 1 This has never been regarded as true even at common law in the United States. See i Greenl. Ev. 452, 453. * i Greenl. Ev. 461 et seq. CHAPTER XXXIV. CRIMINAL LAW. A crime is an act committed or omitted, in violation of a public law, forbidding or commanding it. 1 For dis- tinction between Crimes and Torts, see page 149. In all crimes there must be an intent to do the act committed. Unless the act springs from the will, it cannot be a crime. 3 An intent to violate the law is not essential to the commission of a crime, i. e., ignorance of the law is no excuse. Neither is ignorance of the fact that an act is unlawful. Thus when the selling of adulterated milk is made a crime, ignorance that the milk sold is below the standard fixed by law is no de- fence. But there must be the intent to make the sale? I. Parties incapable of committing crimes are, in general, all persons whose wills are either actually, or by presumption of law, incapable of forming the intent to commit a criminal act. 4 They may be divided into six classes. 5 I. Infants under the age of seven are indisputably presumed incapable of committing a crime. Infants at the age of fourteen are presumed capable of commit- ting crime. In case of infants between the ages of seven and fourteen, the question of their criminal capacity is one of fact, the burden of proving the existence of criminal capacity being upon the prosecution* 1 4 Bl. Comm. 5. 5 i Bish. C. L. 287; May C. L. 5. * May C. L. 53. 4 See i Bish. C. L. 375 ; Commonwealth v. Rogers, 7 Met. 500. 6 May C. L 36 et seq.; 4 Bl. Comm. 22 et seq. 6 4 Bl. Comm. 23; i Bish. C. L. 368. (219) 22O A REVIEW IN LAW AND EQUITY. 2. Persons of non-sane mind. The sanity of a per- son accused of crime must be proved beyond a reason- able doubt. 1 3. Though -voluntary drunkenness is no excuse, justi- fication, or palliation of a crime, it is yet often to be considered in determining the degree of a crime. In crimes where the guilty knowledge and intent form the principal ingredients, as in that of passing counterfeit money, drunkenness may be a defence. 2 4. Persons committing an unlawful act by accident or chance. See excusable homicide, page 225. An un- lawful act arising by accident or chance from a lawful act is not a crime, but all unlawful acts arising by acci- dent or chance from unlawful acts are regarded as committed with intent, and are crimes. 3 5. Persons committing unlawful acts under a mistake of fact : as if A, intending to kill a thief, shoots one of his own family. 4 6. Persons committing an unlawful act under com- pulsion, or inevitable necessity, such as a treasonable act done by a person in the hands of the enemy and under a well-grounded fear of death, or as if one of two per- sons clinging to a plank in mid-ocean insufficient to support them both, should thrust the other off. 5 II. Criminals are divided into two general classes. 6 I. Principals, who may be of two degrees: (a) Prin- cipals in the first degree, or the absolute perpetrators of the crime, (b) Principals in the second degree, or those who aid and abet in the crime. 1 There is much confusion and conflict in this matter, however. See for classification and review of cases, i Whart. C. L. 61. 2 Pigman v. State, 15 Ohio 555. For general subject and cases, see I Whart. C. L. 51 et seq. 3 4 Bl. Comm. 26. 4 Level's Case, i Hale P. C. 42. 5 See United States v. Holmes, I Wall. Jr. i (Circuit Court) ; Bacon's Maxims, No. 5. 6 See 4 Bl. Comm. 33 et seq.; May C. L. 69 et seq. CRIMINAL LAW. 221 2. Accessories, or persons not the chief actors in the offence, nor present at its commission, but who are in some way concerned therein. Accessories may be of two kinds, (a) Accessories before the fact, or persons, who, being absent at the time when the crime was committed, yet procure, counsel, or command another to commit it. (b) Accessories after the fact, or per- sons who, aware that the crime has been committed, receive, comfort, or assist the criminal. III. Crimes may be divided into three general classes. 1 1 . Treason. 2. Felonies. 3. Misdemeanors. 1. Treason is in general disloyalty to one's govern- ment. It is defined in the Constitution of the United States, 8 and of the different States. It is regarded as the gravest of all crimes. At common law treason was o of two kinds. 3 (a). Petit treason. (b). High treason. (a). Petit treason occurred when an inferior killed his superior, as a servant his master. This is now treated as ordinary homicide. (b). High treason is that treason which was first de- fined. Owing to the gravity of the crime, all persons engaged in treason are treated as principals. There are no accessories in treason. 4 2. Felonies, at common law, were crimes which in- volved the forfeiture of the criminal's property. 5 Felony is now largely regulated by statute. The usual test is whether the crime is punishable with death, or imprison- 1 May C. L. 9 ; i Bish. C. L. 602. 2 Art. II. sec. 3. 3 4 Bl. Comm. 75. 4 May C. L. 72 ; see i Bish. C. L. 605. * 4 Bl. Comm. 94, 95 ; i Bish. C. L. 615, 2. 222 A REVIEW IN LAW AND EQUITY. merit in the State prison? Felonies are the only crimes in which there can be accessories? 3. Misdemeanors include all offences not embraced in treason and felonies. Owing to their comparatively insignificant character, all persons connected with their commission are treated as principals. IV. The rules of evidence are, in general, the same in criminal as in civil causes. Two rules, however, re- quire special mention. 1. Every material allegation made by the prosecu- tion must be proved beyond a reasonable doubt, or the defendant is entitled to an acquittal. 3 2. No person shall be put on trial twice for the same offence. This means that when a person has once been put on trial, on a sufficient indictment, and has been convicted or acquitted, this conviction or acquittal is a bar to any subsequent prosecution for the same charge, in the same jurisdiction? V. Specific crimes. Among these twenty-nine may be mentioned. 1. Affray: The fighting of two or more persons in some public place. 5 2. Arson : The malicious burning of the Jwuse of another. The term house includes not only the mansion house, but all out-houses which are a parcel thereof, though not contiguous to it, nor under the same roof, as a barn. 6 3. Assault and battery. Seepage 151. 4. Barratry : An unlawful or fraudulent act, or very gross and culpable negligence, of the master or mar- iners of a vessel, in violation of their duty as such, and 1 i Bish. C. L. 618. ' 2 May C. L. 72 ; Commonwealth v. Ray, 3 Gray 441 ; Ward v. People, 6 Hill 144. 3 May C. L. 124 ; see 3 Rice Ev. 431 et seq. 4 May C. L. 117 et seq. 5 2 Bish. C. L. I. Id. 8 et seq. CRIMINAL LAW. 223 directly prejudicial to the owner, and without his consent. 1 5. Barratry : The frequent exciting and stirring up of quarrels and suits, either at law, or otherwise.' Three instances of offending must be shown in order to con- vict. Champerty and maintenance are offences similar to barretry. Champerty is a bargain with the plaintiff or defendant in a suit, for a portion of the land or other matter sued for, in case of the successful termination of the suit, which the champertor undertakes to carry on at his own expense. Maintenance is the intermeddling of a stranger in a suit for the purpose of stirring up strife and continu- ing the litigation. 6. Bigamy : The wilful contracting of a second marriage when the contracting party knows that the first marriage is still subsisting. 3 7. Blasphemy: A false reflection uttered with the malicious design of reviling God. This offence is gen- erally defined and regulated by statute. 4 8. Bribery: The receiving or offering any undue re- ward by or to any person whose ordinary business re- lates to the administration of justice, in order to influ- ence his behavior in office. 5 9. Burglary: The breaking and entering the house of another, in the night-time, 8 with intent to commit a felony. Place : It must in general be a house actually occu- pied as a dwelling, though a house left by the owner, with the intention of returning, is regarded as a dwell- ing house. At common law, a burglary could be com- mitted in a church. 1 Bouv. Law Diet., and cases cited ; May C. L. 339. s Sometimes spelled Barratry ; 4 Bl. Comm. 134 : Clark C. L. 322. 3 Bouv. Law Diet. ; sometimes discussed under Polygamy. 4 id. Id. 6 2 Bish. C. L. 90 et seq. ; Bouv. Law Diet. 224 A REVIEW IN LAW AND EQUITY. Time : The crime must be committed in the night time. It is deemed to be night when, by the light of the sun, a person cannot clearly discern the face of another. The breaking may be of two kinds, (a) actual, when the burglar breaks or removes any portion of the house, or of its fastenings ; (&) constructive, as when the bur- glar gains entrance by fraud. The least entry, with the whole or any part of the body, or with any instru- ment or weapon introduced for the purpose of commit- ting a felony, is sufficient to constitute the offence. 10. Cheating : The fraudulent pecuniary injury of another by some token, device, or practice, of such a character as is calculated to deceive the public. 1 11. Conspiracy: The combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some lawful purpose by criminal or unlawful means. 2 12. Counterfeiting: The making of a false piece of money in the likeness of the genuine, with intent to defraud. 3 13. Embezzlement: The fraudulent appropriation to one's own use, of the money or goods entrusted to one's care by another. 4 It differs from larceny in that the embezzler is originally lawfully in possession of the property embezzled. 14. Embracery: An attempt, by corrupt means, to induce a juror to give a partial verdict. 5 15. Engrossing: The buying up of such large quantities of an article as to obtain a monopoly, for the purpose of selling it at an unreasonable price. Fore- stalling and regrating were similar offences. Forestal- 1 May C. L. 318 ; i Hawk. P. C. 318, g i (8th Ed.). 3 Bouv. Law Diet., and cases cited. 3 May C. L. 336^ 4 Fagnan v. Knox, 40 N. Y. Super. Ct. 41, 49 ; May C. L. 298. 6 2 Bish. C. L. 384. CRIMINAL LAW. 22$ ling was buying provisions on the way to market, with the intent to sell them again at a higher price. Regrat- ing was the buying of provisions in a market, and the selling of them again in the same market, or within four miles of the place where they were bought. 1 16. Extortion: The unlawful taking by any officer, under color of his office, of any money or thing of value, that is not due him, or more than is due, or be- fore it is due. 2 17. False imprisonment. See page 151. 1 8. Obtaining money under false pretences. 19. Forgery : The fraudulent making or alteration of a writing to the prejudice of another's right. 3 20. Homicide : The killing of a human being. 4 Homicide is of three kinds. A. Justifiable. B. Excusable. C. Felonious. A. Justifiable homicide, in which there is no guilt, as when a criminal is executed in accordance with a sentence of death, or when an officer, in performing the duties of his office, kills a person who assaults and resists him. B. Excusable homicide, in which there is but slight guilt, and no penalty is inflicted by law. Excusable homicide is of two kinds. (a). Homicide by misadventure, where a person, doing a lawful act, without any intention of doing an injury, kills another by accident, as if the head of an axe, with which a person is at work, should fly off and kill a bystander. (b). Homicide in self-defence. A person may take the life of another in defence of himself and of certain other persons, in four cases. 1 4 Bl. Comm. 158. s 2 Bish. C. L. 390, 2. 3 4 Bl. Comm. 247. 4 Id. 177 et seq.\ 3 Greenl. Ev. 114 et seq. 226 A REVIEW IN LAW AND EQUITY. [ I ] . When one person assaults another and uses violence sufficient to create in the mind of the second a reasonable fear for his life. 1 [2] . When two persons have been engaged in a mutual fight and one gives up the struggle : if the latter re- treats as far as he can and the other pursues him, the pursued is justified in killing his pursuer in self -defence.'' [3]. A man may defend his dwelling to any extremity against persons not lawfully empowered to enter it. 3 [4]. A person may take the life of another in defence of any member of his family on the principle of con- structive self-defence* C. Felonious homicide is the killing of any human creature, without justification or excuse. It is divided into two branches. (a). Manslaughter, (b). Murder. (a). Manslaughter is the unlawful killing of another, without malice, express or implied? Manslaughter is divided into two branches, [i]. Voluntary. [2]. Involuntary. [i]. Voluntary manslaughter occurs when, upon a sudden quarrel, two persons fight, and one of them kills the other. [#]. Involuntary manslaughter is that resulting in consequence of an unlawful act, as when a workman carelessly throws a stone into a street, by which a person is killed. If the street were one but seldom used, the crime would be manslaughter ; if a frequented thoroughfare, it would be murder. \b\. Murder is the unlawful killing of any human be- ing, with malice aforethought. 6 1 4 Bl. Comm. 183 ; i Whart. C. L. 306. * Id. 184. 3 i Whart. C. L. 502 et seq.; Pond v. People, 8 Mich. 150. 4 4 Bl. Comm. 186. 6 Clark C. L. 165 et seq. Clark C. L. CRIMINAL LAW. 22/ Malice may be either express or implied ; express, as where previous threats or other circumstances show that the criminal purpose was in the criminal's mind ; implied, as where the criminal purpose, though not directly proved, is indirectly inferred from other facts and circumstances which are proved. 21. Kidnapping: The forcible abduction or steal- ing away of a human being. 1 22. Larceny : The wrongful and fraudulent taking and carrying away of the personal property of another, with the intent to convert it to the taker's use. 2 This offence can be committed to personal property only, 1 so that, at common law, if a person should cut a melon from the vine of another, and carry it away, without replacing it on the owner's soil, he would be guilty of trespass only, since the melon, when connected with the vine, was real property, and could not be made the subject of larceny. But if the melon was replaced on the ground, after being severed from the vine, and was subsequently carried away, the crime of larceny was completed, as the melon was then personal property. Larceny was divided into 4 (a) petit, where the property stolen was twelve pence or less in value; (b] Grand, where the goods stolen exceeded twelve pence in value. Larceny may be also divided into (a) simple, including petit and grand larceny ; 5 (b) compound, or larceny accompanied with certain aggravating circumstances, as larceny from the person, or from a dwelling-house. At common law choses in action could not be made the subject of larceny. 8 23. Libel. See page 156. 24. Mayhem. See page 8. 1 4 Bl. Comm. 219. 2 East. PI. Cr. 553- 3 4 Bl. Comm. 2321 et seq. 4 Id. 229. 5 Id. 239. 6 May C. L. 272 ; Payne v. People, 6 Johns. 103 ; Regina v. Powell, 5 Cox C. C. 396. 228 A REVIEW IN LAW AND EQUITY. 25. Perjury: The wilful giving, under oath, in a judicial proceeding or court of justice, of false testi- mony, material to the issue or point of inquiry. 1 There are six essentials to this crime. 2 (a). The intention must be wilful. (b). The oath must be false. (c). The party must be lawfully sworn. (d\ The proceedings must be judicial. (e). The assertions must be absolute. (/). The oath must be on a material point. 26. Piracy : Acts of robbery and depredation on the high seas which, if committed on land, would have amounted to felony. 3 27. Rescue : The forcibly and knowingly freeing another from arrest or imprisonment. 4 Escape and Prison Breach are similar offences. 5 Escape is the voluntarily and negligently allowing any person, lawfully in confinement to leave the place of imprisonment. Prison Breach is the act by which a prisoner, by force and violence, escapes from a place where he is lawfully in custody. 28. Riot: A tumultuous disturbance of the peace by three or more persons, assembling with intent to as- sist each other against any who shall oppose them in the execution of some private enterprise, and after- wards actually executing the same in a violent and turbulent manner, whether the act intended be of itself lawful or not. 8 Rout and Unlawful Assembly are similar offences. Rout differs from riot only in that it may be a complete offence without the execution of the intended enterprise? It is an attempt to commit a riot. 1 2 Bish. C. L. 1015. * Bouv. Law Diet., and cases cited. 3 I Russ. Crimes *I44. 4 4 Bl. Comm. 131. 5 2 Bish. C. L. 1064 et seq. 6 Hawk. PL Cr. c. 65, I. 7 Id. 14 ; i Russ. Cr. *378. CRIMINAL LAW. 229 Unlawful Assembly is an assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute or make any attempt to execute. 1 29. Robbery : The felonious and forcible taking from the person of another, of goods or money, by violence or by putting the owner in fear of injury. 3 1 i Russ. Cr. *378. * 4 Bl. Comm. 243. CHAPTER XXXV. CORPORATIONS. A corporation is a body, consisting of one or more persons, established by law, usually for some specific purpose, and continued by a succession of members. 1 Corporations may be divided into 3 1. Sole. 2. Aggregate. 1. Sole corporations are those which, by law, consist of but one member at any time, as a bishop, and other ecclesiastical offices. They occur but seldom in the United States. 2. Aggregate corporations, or those composed of two or more members at the same time. Corporations may also be divided into 1. Ecclesiastical. 2. Lay. 1. Ecclesiastical corporations are those created to secure the public worship of God. 2. Lay corporations are divided into (a). Civil. (b}. Eleemosynary. (a). Civil corporations are divided into (i). Public. (2). Private. (i). Public corporations are those which are exclu- sively the instruments of public interest, as a city, or county. (2). Private corporations are those created wholly, or in part, for private gain. 1 Bouv. Law Diet. 5 Id.; i Bl. Comm. 469. (230) CORPORATIONS. 231 (ft). Eleemosynary corporations are those created for purposes of charity. I. Corporations : how created. In the United States corporations are, as a rule, created by, and derive their authority solely from, the Legislature. Corporations may also exist. 1. By prescription, which presupposes the grant of a charter by the Legislature. 1 2. By implication, when such rights are granted, or burdens imposed by the State as imply, for their enjoy- ment or fulfillment, corporate powers. 2 II. Powers. There are five chief powers of corpora- tions. 1. Perpetual succession, involving the admission and, for good cause, the removal of members, except in case of stock corporations, where members cannot be removed against their will. The power of removing officers is sometimes called the right of amotion. 2. The power to sue and be sued, to grant and re- ceive grants of land, etc. 3. The power to transmit all its property in succes- sion. 4. The power to have a seal, and to alter it at pleasure. 5. The power to make by-laws for the government of the corporation, so far as they are consistent with the charter and the law of the land. III. How dissolved. A corporation may be dis- solved in four ways. 4 i. By act of the Legislature. A public corporation can always be so dissolved. 5 A private corporation 1 King v. Mayor, etc., 14 East. 360 ; Robie v. Sedgwick, 35 Barb. 326 ; i Morawetz Pri. Corp. 36. 2 Denton v. Jackson, 2 Johns. Ch. 325 (Kent. Ch).; Stebbins v. Jennings, 10 Pick. 188. 3 i Bl. Comm. 475. 4 * Bl. Comm. 485. 6 i Dill. Mun. Corp. 54- 232 A REVIEW IN LAW AND EQUITY. cannot be dissolved in this way, without its consent, unless there is a provision to that effect in its charter. 1 2. By the death of all its members, no successors having been appointed or chosen. 3. By the surrender of its charter. 4. By the forfeiture of its charter. The forfeiture of the charter, by breach of conditions, must be declared and enforced by the State, by direct proceedings to secure that effect ; and prior to such action, no advantage of the breach of condition can be taken by a private individual, in any collateral proceed- ing. 8 At common law it was the doctrine that corporations could act only through or under the seal, but this is now obsolete, and the tendency of the law is to treat corporations as natural persons, so far as their contracts and torts are concerned. 8 1 2 Morawetz Pri. Corp. 1013. 2 Dyer v. Walker, 40 Pa. St. 157 ; Heard v. Talbot, 7 Gray 120; Young v. Harrison, 6 Ga. 130. 3 2 Kent Comm. 288 etseg.; A. & A. Corp. 281-286; I Mora- wetz Pri. Corp. 338. RULES REGULATING ADMISSION TO THE BAR IN ALL THE STATES AND TERRITORIES OF THE UNITED STATES. (233) RULES REGULATING ADMISSION TO THE BAR IN ALL THE STATES AND TERRITORIES OF THE UNITED STATES. Alabama. Any man, of the age of twenty-one, of good moral character, and possessing the requisite qualifications of learning and ability, is entitled to admission to the bar of Alabama. Application for admission must be addressed to the Supreme Court, Court of Chancery, or the Circuit Court. Persons admitted to practice in the Supreme Court can practice in all other courts. Persons ad- mitted in any of the other courts can practice in all courts, except the Supreme Court. Applicants must be examined in open court, upon these subjects : 1. Law of Real Property. 2. Law of Personal Property. 3. Law of Pleading and Evidence. 4. The Criminal Law. 5. Commercial Law. 6. Chancery and Chancery Pleading. 7. The Statutes of the State. The Supreme Court may appoint an examining com- mittee to conduct examinations either in public or private. (235) 236 RULES REGULATING ADMISSION Attorneys from other States, locating in Alabama, are admitted to practice on such terms as Alabama attorneys are admitted to practice in them. Arizona. Application for admission may be made at the term of any District Court or of the Supreme Court, accom- panied by a certificate from the Board of Supervisors of the county in which the applicant resides, that he has been a resident of the Territory at least six months and is of good moral character. Thereupon the court appoints an examining committee of three attorneys, who, on a day fixed by the court, examine the candi- date in open court. Upon satisfactory examination, the applicant is admitted to practice in any inferior court, if he applies to the District Court for examina- tion. If he applies to the Supreme Court, he is admitted to practice in any court in Arizona. Attorneys from other States and Territories, locating in Arizona, are admitted to practice upon producing the license of the court in which they were admitted to practice, and satisfactory evidence of good moral character. No prior residence in Arizona is necessary to entitle the attorney to admission. Arkansas. Any male citizen of the United States, of the age of twenty-one, of good moral character, may be admitted to practice upon passing a satisfactory examination be- fore a Circuit Court. Satisfactory proof of the forego- ing facts must be produced before the examination. Attorneys from other States, locating in Arkansas, must be examined prior to their admission to practice. Licenses to practice before the Circuit Courts do not entitle their holders to enrollment in the Supreme Court without examination. TO THE BAR IN ALL THE STATES. 237 California. Any citizen, or any person who has bona fide declared his or her intention to become a citizen, of the age -of twenty-one, of good moral character, and possessing the requisite learning and ability, is entitled to admis- sion as an attorney and counsellor. Every applicant must produce a satisfactory certifi- cate of good moral character, and undergo a strict examination in open court by the Justices of the Supreme Court, or by the Justices sitting and holding one of the departments thereof, provided that the several Superior Courts may admit applicants to prac- tice in their respective courts, upon examination and the production of satisfactory testimonials as aforesaid. Any citizen of the United States, or person resident in this State, who has bona fide declared his intention of becoming a citizen, according to the manner required by law, who has been admitted to practice in the high- est court of a sister State, or of a foreign country, where the Common Law forms the basis of its juris- prudence, may be admitted to practice in the courts of California, upon the production of his or her license, and satisfactory evidence of good moral character, but the court may examine the applicant as to his qualifi- cations. Colorado. No person shall be entitled to receive a license to practice law until he shall obtain a certificate from the court of some county of his good moral character, also from one or more reputable counsellors-at-law, that he has been engaged in the study of law for two successive years prior to his application for a license. A standing committee of three attorneys is appointed by the Supreme Court for each judicial district, whose duty it is to examine applicants. 238 RULES REGULATING ADMISSION Any person producing a license from a court of record, or a duly authenticated copy of the record of any court of record in the United States, showing that he has been admitted to practice in that court, shall be admitted to practice in Colorado. Women are not admitted to the Colorado Bar. Connecticut. The Judges of the Superior Court shall appoint an examining committee of fifteen, of which one or more shall be judges of said court, and the rest attorneys re- siding in this State. One third of this committee goes out of office on July I, of each year. This committee shall hold two sessions annually for the examination of applicants, one in Hartford, begin- ning at 10 A.M. on the Friday after Christmas, or, if the said day be New-Year's, on Thursday, and one at the court-house in New Haven, on the second Thursday before the last Monday of June. The members present shall be a quorum. To entitle an applicant to examination, he must sat- isfy the committee 1st. That he has filed with the clerk of the Superior Court where the examination is held, a certificate from the clerk of the Superior Court of the county in which he intends to apply for admission, which must be the county in which he has last studied ; or if he has not studied in this State, the county in which he resides that said applicant filed notice of his intention to apply for examination with said clerk, at least fifteen days prior to the date of such examination, and that subse- quently, at a meeting of the bar, it had been voted that such intended application was approved. 2d. That he has paid to the clerk of the Superior Court for the county in which the examination is held, the sum of ten dollars. TO THE BAR IN ALL THE STATES. 239 3d. That he is a citizen of the United States, and twenty-one years of age. 4th. That he is a person of good moral character. 5th. That before beginning the study of law he graduated from a college, high school, or preparatory school, or was admitted to some college, or professional school, or passed an examination upon his literary qualifications before said examining committee. 6th. That after reaching the age of eighteen he has studied law for two years, if a college or law school graduate, otherwise for three years, in a law school, or under competent professional instruction in the office of a practicing attorney, or both, of which period one year, at least, must be spent in this State. Applicants must pass a satisfactory examination on the following subjects : Pleading, Practice and Evidence, Constitutional Law, Real and Personal Property, Con- tracts, Torts, Equity, Criminal Law, Wills and Admin- istration, Corporations, Partnership, Negotiable Paper, Agency, Bailments, Domestic Relations, and any addi- tional subjects in the discretion of the committee. The committee shall certify to the clerk of the Superior Court in the county in which the applicant filed notice of his intention the name of any applicant who has passed the examination, and said applicant is thereupon admitted to practice upon motion, upon the payment of a fee of five dollars. Attorneys in the highest court of original jurisdiction in another State are admitted to examination before said committee, upon satisfactory proof that they are such attorneys, twenty-one years of age, of good moral character, and have filed with the clerk of the Superior Court in the county in which they reside, notice of their intention to apply for examination, and that the Bar of said county has approved such application. If such persons have practiced three years in the 240 RULES REGULATING ADMISSION highest courts of another State, they may be admitted by the court without examination, upon vote of the Bar, and proof of citizenship and good moral character. Delaware. There shall be appointed at the spring term in each county, to serve for one year or until their successors are appointed, a Board of Examiners, of not less three nor more than five members of the Bar. No person shall be registered as a student of law except upon the certificate of said Board that he is a resident of the State, of good character, and that he has been found, upon examination, to be well qualified to commence the study of the law. The examination embraces the following subjects : Latin the student being allowed to designate that one of the following authors which he chooses : Caesar, Cicero, Livy, and Horace ; History generally, and American and English history particularly ; Mathe- matics, as far as plane Trigonometry. Sometimes the candidate's knowledge of the rudimentary branches is tested, but he is supposed to know them. Such certificate shall be endorsed with the approval of a judge and filed with the Prothonotary, and recorded in the appearance docket. Upon application for ad- mission of a student to practice, it is required that he be a resident of the State, of full age ; that he shall have studied law at least three years after the filing of said certificate, under the direction of a member of the Bar of this State who has been in practice for at least ten years theretofore, or of a Judge of any of the courts of the State, or of a Judge of a court of the United States residing in this State ; that he be a per- son of integrity and good character, and that he shall have been privately and fully examined by said Board of Examiners, and he shall be admitted only on the TO THE BAR !N ALL THE STATES. 241 written report of said Board, stating his qualifications and recommending his admission. Examinations may be oral or in writing, or both, at the discretion of the Board. The action of a majority of the Board shall in all cases be sufficient. Attorneys admitted elsewhere, if they be residents of this State, of good character, and have practiced for three years in the Superior Court of any other State, upon the written report of the Board of Examiners stating their qualifications and recommending their ad- mission, may, in the discretion of the court, be admitted to practice in this State. Said Board is authorized to subject any applicant under this rule to such examina- tion as they may deem expedient. Attorneys may be admitted pro hac vice in the dis- cretion of the court, but no attorney, while engaged in the practice of law in another State, shall be admitted to practice in this State except pro hac vice. . A separate examination is necessary for admission to practice in the Court of Chancery. Florida. Candidates, upon presenting to one of the Judges of the Circuit Court satisfactory evidence that they are twenty-one years of age, and of good moral character, shall be examined by the court or a committee ap- pointed for that purpose, and, if found qualified, shall be admitted. Attorneys who have been admitted to practice in any court of record in any State of the Union shall be admitted to practice in any court, upon producing evidence of having been so admitted. Georgia. Attorneys admitted to practice in the Superior Courts may practice in all courts except the Supreme Court ; for which a special license must be obtained. 242 RULES REGULATING ADMISSION For the purpose of admission to the Bar, the candidate must apply, by petition, to a Superior Court during one of its sessions in the circuit of which he is a res- ident or in which he has read law, and must show (i) his citizenship in the United States, (2) good moral character, (3) that he has read Law, (4) that he has been a resident, or that he has read law in the circuit aforesaid. Of these facts there must be a certificate of two attorneys of the court, or other evidence satisfac- tory to the court. The applicant must be examined in open court upon 1. The principles of the Common and Statute Law of England in force in Georgia. 2. The Law of Pleading and Evidence. 3. The principles of Equity and of Equity Pleading and Practice. 4. The Revised Code of Georgia, the Constitution of the United States, the Rules of Practice in the Superior Courts. Graduates of the Lumpkin Law School, and of the Law Department of Mercer University, are admitted to practice upon presentation of diplomas. Attorneys from other States are admitted to practice in Georgia upon producing proof of such admission, and undergoing an examination touching the laws of Georgia, by the Superior Court, provided that such other States permit Georgia attorneys to practice in their courts. Attorneys from other States who become actual res- idents of Georgia are admitted to practice upon un- dergoing an examination as to the laws of Georgia, given by the Superior Court, after producing to the court satisfactory evidence that they were attorneys-at-la\v in good standing in a court of similar jurisdiction in the State from which they came. Attorneys who have been admitted to practice in the Superior Court of TO THE BAR IN ALL THE STATES. 243 Georgia are admitted to practice in the Supreme Court upon producing satisfactory proof of good private and professional character. The recommendation of one or more respectable members of the Bar is sufficient, and is always required. Aliens are eligible for admission to the Bar after a residence of two years in the State. Idaho. Any white, male citizen, or one who has bona fide declared his intention of becoming a citizen, in the manner required by law, of the age of twenty-one, of good moral character, upon producing satisfactory testimonials of good character and undergoing a strict examination by the Justices of the Supreme Court, may be admitted to practice. District Courts may admit persons to practice in their respective districts in like manner. Attorneys who have been admitted to practice in the highest court of any other State or Territory are admit- ted to practice in Idaho, upon affidavit of such admission or the production of a license showing the same. Illinois. Applicants must have studied law for two years in the office of an attorney or at a law school. There must be a certificate from some court of record in the county in which the applicant has studied as to his good character. Diplomas from law schools organized under the laws of the State, in which the regular course con- sists of two years, with thirty-six weeks to the year, may be accepted in place of the examination, but a motion for the admission of the party having the diploma must be made by some attorney of the court, supported by proof of good moral character. Examinations are given by the Appellate and Su- 244 RULES REGULATING ADMISSION preme Courts, and are both oral and written. Attorneys from other States who wish to locate in Illinois may be admitted without examination, if it appears that the State in which the license was issued requires a two years' course of study, or if the applicant has practiced two years in the State from which he comes. Otherwise he must be examined. Women may be admitted to practice. Indiana. Every person of good moral character, being a voter, shall be entitled to admission to practice law in all the courts of justice. Six months' residence in the State, 60 days in the township, and 30 days in the ward or precinct are the qualifications for a voter, assuming him to be of age. The applicant appears in open court and some member of the Bar moves his admis- sion, whereupon he is sworn to perform the duties of an attorney, etc. This is all that is absolutely required to enable a person to practice law. A roll of attorneys is, however, required to be kept by every court, and " no names shall be placed thereon except of such persons as are shown to be qualified to practice law by reason of their learning therein," as shown by an examination conducted by the Judge or a committee of the Bar whom the Judge may select for that purpose. Attor- neys from other States are admitted on a certificate of membership of the Bar of the State from which they come. Graduates of law schools are admitted on pres- entation of their diplomas. Iowa. The applicant must be twenty-one years old, of good moral character, an inhabitant of the State, and must actually and in good faith have studied law two years either with some member of the Bar of Iowa or in TO THE BAR IN ALL THE STATES. 245 some reputable law school, or in both. Thirty-six weeks in a law school is equivalent to one year's study. Every applicant is examined by the Supreme Court or by a committee appointed by it for the purpose. The examination consists of not less than thirty question.' in writing, and there may also be an oral examination Attorneys from other States may be admitted witk out examination and without proof of having studied law two years, on satisfactory proof that they have practiced law not less than one year in the State from which they came. Kansas. Any person, being a citizen of the United States, who has read law two years, the last of which must be in the office of a regularly practicing attorney, who shall certify that the applicant is of good moral charac- ter and well qualified to practice law, and who is actu- ally an inhabitant of Kansas, and who satisfies any district court that he possesses the requisite learning and is of good moral character, may be admitted by said court to practice in all the district and inferior courts of the State. The Supreme Court may, on motion, admit any practicing attorney in the district court, to practice in the Supreme Court. Attorneys from other States or Territories, having business in any court of Kansas, may be admitted to practice in such court on motion, upon taking the re- quired oath. Attorneys from other States locating in Kansas, must apply for admission to a District Court, whose Judge may admit on motion, or with an exam- ination, according to his discretion. Kentucky. The applicant must obtain a certificate from the county court of the county in which he is a resident, that he is a person of honesty, probity, and good de- 246 RULES REGULATING ADMISSION meaner. This certificate must be filed with the clerk of a Circuit Court, on or before the fourth day of the regular term of the court, which filing shall be regarded as an application for a license. On the fourth day of the term, the court shall appoint two examiners whose certificate to the effect that the candidate has passed a satisfactory examination, after being approved by the Judge of the court, shall be a license to practice law in any courts of the State. The certificate of the County Judge may be presented to a Judge of the Court of Appeals, who, with another Judge of that court, shall examine the applicant. Attorneys-at-law of any State in the United States, who have been regularly admitted to practice in the Supreme Courts of their own States, may be admitted to practice law in any of the courts of Kentucky upon motion. Louisiana. Any citizen of the United States possessing the qualifications except that of residence necessary to constitute a legal voter, shall be admitted to practice upon obtaining a license from the Supreme Court. The Supreme Court shall grant licenses to the follow- ing: (i). To graduates of the Law Department of the University of Louisiana, upon producing evidence of good character. (2). When the applicant produces a license to practice law in any other State of the Union, or a diploma from any law school in any other State, upon being examined in open court touching the can- didate's fitness to practice in the courts of Louisiana. (3). Other applicants are examined by the Supreme Court on the general law and the civil law as applied in the courts of Louisiana. TO THE BAR IN ALL THE STATES. 247 Maine. The candidate must have studied law two years in the office of some attorney, or a part of the time may be spent in such office and the remainder in some law school. Notice of the candidate's application for ad- mission to the Bar must be published in some news- paper by the clerk of the court to which application is made thirty days before the examination. Every can- didate must present to the examining committee a written recommendation from the member of the Bar with whom he has studied. The examinations are public and are held in the presence of some Justice of the Supreme Court during term time. They are conducted by an examining com- mittee of the Bar in each county, and this committee is appointed by the Chief-Justice of the Supreme Court. The examinations are both oral and written. Attorneys from other States who have been in good standing and in active practice for three years are ad- mitted upon motion, and without examination. Maryland. Applications for admission may be addressed to one of the Circuit Courts, to the Court of Appeals, and by candidates from the city of Baltimore to the Supreme Bench for Baltimore. The candidate must be a male white citizen of the United States, and must have studied law in any portion of the United States for two years preceding his application. He is examined by a Board consisting of not less than three members of the Bar. Evidence of good moral character must be produced. Rejected applicants cannot apply again in less than twelve months. Attorneys from other States or Territories are ad- mitted to practice in the same manner in which at- torneys from Maryland are admitted to practice in those 248 RULES REGULATING ADMISSION States or Territories, provided that the terms for ad- mission to the Bar are regulated by law. Where there are no such regulations, the court to which application is made may admit or not, according to its discretion. An applicant rejected by the other courts of Maryland may appeal to the Court of Appeals, whose decision in the matter shall be final. Massachusetts. The application must be made by way of petition to the Supreme or the Superior Court, which petition may be filed at any time prior to the examination. The examination is conducted by an examining committee, usually consisting of three members of the Bar, and its nature varies in the different counties, in some of which it is wholly oral, while in others it is both written and oral. The candidate must be twenty-one years old, of good moral character, and must declare his intention to practice law in the State. His petition must be ap- proved by some attorney of the court. No time is re- quired, by statute, to be spent in preliminary study, but it is the unwritten law that at least two years shall be so spent. An applicant cannot, however, be refused examination nor rejected on this ground. Rejected applicants are not permitted to apply again in less than six months. Attorneys from other States who have been admitted to practice in the highest judicial courts of those States are admitted to practice in Massachusetts upon satis- factory evidence of good moral character and profes- sional qualifications. The matter is usually referred to the examining committee of the county in which the application is made. Women are admitted on the same terms as men. TO THE BAR IN ALL THE STATES. 249 Michigan. The applicant must address a petition to the Circuit Court of whose district he is a resident, stating that he is a citizen of the United States, twenty-one years old, and that he is a resident of the judicial circuit in which the application is made. The applicant must also state the length of time in which he has been engaged in the study of law, though no definite time is needed to entitle him to examination, and that he believes him- self qualified to act as a counsellor-at-law. The petition must be verified by oath and be accompanied by a certificate of at least one member of the Bar, or some other reputable person known to the court, certifying to the good moral character of the applicant. Attorneys from other States are usually admitted upon motion if they have been engaged in practice for a considerable period ; otherwise, after examination. Mississippi. The applicant must be twenty-one years old, a citizen of the United States, and a resident of the State. Application may be made to the Supreme Court, or to any Circuit or Chancery Court. The ex- amination is held in open court, and, if found qualified, the candidate is admitted to practice. A diploma from the Law Department of the State University is equiv- alent to a license to practice. Attorneys from coterminous States are admitted to practice upon the same terms that Mississippi attorneys are admitted to practice in those States, and are not required to take the oath to support the Constitution of Mississippi. Attorneys from other States, locating in Mississippi, are examined in all cases prior to ad- mission. 250 RULES REGULATING ADMISSION Missouri. The candidate must file with the clerk of the Supreme Court, the St. Louis Court of Appeals, .or of some Circuit Court, fifteen days at least before the first day of the next term, a written application for examina- tion, in which he states his age and his good moral character. No prior residence is required, and there is no statutory regulation in regard to the time to be spent in study, though it is expected that two or three years will be so spent. There must be satisfactory evidence of good character, and the application must be approved by some attorney of good standing. The examination is conducted by the Judges in open court. Attorneys from other States locating in Missouri are admitted to practice upon passing a satisfactory ex- amination. Montana. Application for admission must be made to the Supreme Court, stating age, etc., accompanied by a certificate from the court of some county of the appli- cant's good moral character, and there must also be a certificate from one or more reputable counsellors-at- law that he has been engaged in the study of law for two successive years prior to his application. An ex- amination is given by an examining committee of three attorneys, appointed by the Supreme Court for each judicial district, Attorneys from other States or Territories, locating in Montana, are admitted to practice without exami- nation, upon presenting to the Supreme Court a peti- tion which shall state where the candidate read law and was admitted, where he has practiced his pro- fession, and when, where, and how long he was last en- gaged in the practice of law. The petition must be accompanied by a certificate of the presiding Judge of TO THE BAR IN ALL THE STATES. 251 the highest court in which he last practiced that he was of good standing in his profession in that jurisdic- tion. The petition must also state whether or not any proceedings for disbarment have ever been had against the applicant in any court of any State, and must be verified by affidavit. Nebraska. Application is usually made for admission to the Circuit Court of the judicial circuit in which the appli- cant resides. A person admitted to practice in the Circuit Courts is admitted to practice in the Supreme Court on motion. The candidate must be twenty-one years old, of good moral character, and must have studied law two years and must pass a satisfactory examination on the prin- ciples of the Common Law. Any person producing a license or satisfactory voucher proving that he has been regularly admitted as an attorney-at-law in any court of record in the United States, and that he is of good moral character, may be admitted to practice in any court of the State, without examination. New Hampshire. Students are eligible for examination for admission to the Bar who have studied for three years in the office of an attorney, or who have studied for two years in an office of some counsellor of the highest court of an- other State and one year in the office of a New Hamp- shire attorney. Examinations are held by the Supreme Court, or by a committee of the Bar appointed for the purpose. Attorneys who have been admitted to practice in the highest judicial court of another State may be admitted to practice in the courts of New Hampshire upon RULES REGULATING ADMISSION satisfactory evidence of good moral character, without examination, where the circumstances of the case render it unnecessary. By a Rule of Court, attorneys who have practiced one year in other States may be admitted upon furnishing satisfactory evidence thereof. New Jersey. The candidate must be twenty-one years old, and cannot be admitted to examination unless he shall have served a regular clerkship with some practicing attor- ney of the Supreme Court for the term of three years at least, if he shall have been previous to the commence- ment of such service, admitted to the degree of Bachelor of Arts or of Science in any college or university in the United States, and for the term of four years, if he shall not have been so admitted. He must produce to the court a certificate from the person with whom his clerkship has been served, or other satisfactory evidence that he has not, at any time during such clerkship, been engaged in, or pursued any occupation or employ- ment, incompatible with the full, fair, and bona fide service of his clerkship. Any portion of time, not ex- ceeding eighteen months, spent in regular attendance upon the law lectures in any college or university, or in any law school of established reputation in the United States, shall be allowed in lieu of an equal period of clerkship. No attorney from another State shall be licensed to practice unless he shall first submit himself to an exam- ination ; nor shall he be admitted to the examination, unless the time which he shall have served as a clerk, and the time he shall have practiced as an attorney shall, in the whole, amount to four years at least, and shall produce satisfactory proof of his moral and pro- fessional standing in the State from whence he comes ; provided that no such person shall be admitted at all, TO THE BAR IN ALL THE STATES. 253 unless an attorney from this State would be admitted in such State on the same or equally favorable terms. The examinations are conducted by a Board of Exam- iners, consisting of six counsellors of the Supreme Court. They are both oral and written. A distinction is made between counsellors and at- torneys. The latter must be examined, and must have practiced for three years before they are entitled to an examination to become counsellors. The exami- nation in this case is upon the principles and doctrinesof the law, and upon the candidate's ability as a pleader. New York. RULE I. No person shall be admitted to practice as an attor- ney or counsellor in any Court of Record in this State, without a regular admission to the bar and license to practice granted by an Appellate Division of the Su- preme Court. RULE II. Any person who has been admitted to practice, and has practiced three years as an attorney and counsellor in ths highest court of law in another State, and any person who has thus practiced in another country, or who, being an American citizen and domiciled in a foreign country, has received such diploma or degree therein, as would have entitled him, if a citizen of such foreign country, to practice law in its courts may, in the discretion of an Appellate Division of the Supreme Court, be admitted and licensed without an examina- tion. But he must possess the other qualifications re- quired by these rules, and must produce a letter of recommendation from one of the Judges of the highest Court of law of such other State, or country, or fur- nish other satisfactory evidence of character and quali- fications. 254 RULES REGULATING ADMISSION RULE III. All other persons may be admitted and licensed upon producing and filing with the Court the certifi- cate of the State Board of Law Examiners that the applicant has satisfactorily passed the examination prescribed by these rules and has complied with their provisions ; and upon producing and filing with the Court evidence that such applicant is a person of good moral character, which may be shown by the certifi- cate of the attorney with whom he has passed his clerkship, or by some attorney in the town or city where he resides, but such certificate shall not be con- clusive, and the Court may make further examination and inquiry. RULE IV. To entitle an applicant to an examination as an at- torney and counsellor, he must prove, by his own affi- davit, to the satisfaction of the State Board of Law Examiners : First. That he is a citizen of the United States, twenty-one years of age, stating his age, and a resi- dent of the State, and that he has not been examined for admission to practice and been refused admission and license within three months immediately preceding. Second. That he has studied law in the manner and according to the conditions hereinafter prescribed for a period of three years, and that he is the same per- son mentioned in his annexed preliminary papers, ex- cept that if the applicant be a graduate of any college or university, his period of study may be two years instead of three ; and except also that persons who have been admitted as attorneys in the highest Court of original jurisdiction of another State or country, and have remained therein as practicing attorneys for at least one year, may be admitted to such examina- TO THE BAR IN ALL THE STATES. 255 tion after a period of law-study of one year within this State. RULE V. Applicants for examination shall be deemed to have studied law within the meaning of these rules only when they have complied with the following terms and conditions viz. : 1. The provisions for requisite periods of study must be fulfilled by serving a regular clerkship in the office of a practicing attorney of the Supreme Court in this State after the age of eighteen years ; or after such age, by attending an incorporated law school, or a law school connected with an incorporated college or university having a law department organized with competent instructors and professors, in which in- struction is regularly given ; or after such age, by pursuing such course of study, in part by attendance at such law school, and in part by serving such clerk- ship. 2. If the applicant be a graduate of a college or uni- versity, he must have pursued the prescribed course of study after his graduation ; and if he be a person admitted to the bar of another State or country, he must have pursued his prescribed period of study after having remained an attorney in such other State or country for the period of one year. 3. Applicants who are not graduates of a college or university, or members of the bar as above prescribed, shall, before entering upon a clerkship or attendance at a law school herein prescribed, or within one year thereafter, have passed an examination conducted under the authority and in accordance with the ordi- nances and rules of the University of the State of New York, in English composition, advanced English, first year Latin, arithmetic, algebra, geometry, United States and English history, civics and economics, or RULES REGULATING ADMISSION in their substantial equivalents as defined by the rules of the University, and shall have filed a certificate of such fact signed by the Secretary of the University with the Clerk of the Court of Appeals, whose duty it shall be to return to the person named therein a certi- fied copy of the same showing the date of such filing. The Reg.nts may accept as the equivalent of and sub- stitute for the examination in this rule prescribed either, first, a certificate properly authenticated, of having successfully completed a full year's course of study in any college or university ; second, a certifi- cate properly authenticated, of having satisfactorily completed a three years' course of study in any insti- tution registered by the Regents as maintaining a sat- isfactory academic standard ; or, third, a Regents' diploma. The Regents' ceitificate above prescribed shall be deemed to take effect as of the date of the completion of the Regents' examination, as the same shall appear upon said certificate. Attendance on a law school during a school year of not less than eight months in any year, shall be deemed a year's attendance under this rule ; and in computing the period of clerkship a vacation actually taken, not exceeding two months in each year shall be allowed as part of such year. It shall be the duty of attorneys, with whom a clerkship shall be commenced, to file a certificate of the same in the orifice of the Clerk of the Court of Ap- peals, which certificate bhall in each case state the date of the beginning of the period of clerkship, and such period shall be deemed to commence at the time of such filing, and shall be computed by the calendar year. The same period of time shall not be duplicated for different purposes, except that a student attending a law school as herein provided, and who, during the vacations of such school, not exceeding three months TO THE BAR IX ALL THE STATES. 257 in any one year, shall pursue his studies in the office of a practicing attorney, shall be allowed to count the time so occupied during such vacation or vacations as part of the clerkship in a law office specified in these rules. RULE VI. The State Board of Law Examiners, before admit- ting an applicant to an examination, shall require proof that the preliminary conditions prescribed by these rules have been fulfilled ; which proof shall be made as follows viz. : 1. That the applicant is a college graduate, by the production of his diploma or certificate of graduation under the seal of the college. 2. That he has been admitted to the bar of another State or country, by the production of his license or certificate executed by the proper authorities. 3. That he has served a regular clerkship in the office of a practicing attorney of the Supreme Court in this State, after the age of eighteen years, by produc- ing and filing with the Board a certified copy of the attorney's certificate as filed in the office of the Clerk of the Court of Appeals, and producing and filing an affidavit of the attorney or attorneys, with whom such clerkship was served, showing the actual service of such a clerkship, the continuance and end thereof, and that not more than two months' vacation was taken in any one year. 4. The time of study allowed in a law school must be proved by the certificate of the teacher or presi- dent of the faculty under whose instructions the per- son has studied, under the seal of the school, if such there be, in addition to the affidavit of the applicant, which must also state the age at which the applicant began his attendance at such law school, which proof must be satisfactory to the Board of Examiners. 258 RULES REGULATING ADMISSION 5. That the applicant has passed the Regents' ex- amination or its equivalent, must be proved by the production of a certified copy of the Regents' certifi- cate filed in the office of the Clerk of the Couit of Ap- peals, as hereinbefore provided. 6. When it satisfactorily appears that any diploma, affidavit, or certificate required to be produced has been lost or destroyed without the fault of the appli- cant, or has been unjustly refused or withheld, or by the death or absence of the person or officer who should have made it, cannot be obtained, the Board of Law Examiners may accept such other proof of the requisite facts as they shall deem sufficient. 7. A law student whose clerkship or attendance at a law school has already begun, as shown by the record of the Court of Appeals, or of any incorporated law school, or law school established in connection with any college or university, may at his option file or pro- duce instead of the proofs required by these rules those required by the rules of the Court of Appeals adopted October 28, 1892. RULE VII. When the filing of a certificate as required by these rules has been omitted by excusable mistake, or with- out fault, the court may order such filing as of the proper date. All certificates heretofore issued to law students by the Board of Regents and founded upon equivalents instead of an actual examination, are vali- dated and made effectual, and may be accepted as sufficient by the Board of Law Examiners. RULE VIII. The State Board of Law Examiners shall be paid as compensation, each the sum of two thousand dollars per year, and, in addition, such further sum as the Court may direct, and an annual sum not exceeding TO THE BAR IX ALL THE STATES. 259 two thousand dollars per year shall be allowed for nec- essary disbursements of the Board. Every applicant for examination shall pay to the examiners a fee of fifteen dollars, which shall be applied upon the com- pensation and allowance above provided, and any sur- plus theieafter remaining they shall pay into the treas- ury of the State ; provided, however, that such com- pensation and allowance for any one }ear shall not exceed the aggregate of fees received for such year. The examinations held by such State Board of Exam- iners may be conducted by oral or written questions and answers, or partly oral and partly written, but shall be as nearly uniform in the knowledge and capacity which they shall require as is reasonably pos- sible. An applicant who has failed to pass one ex- amination cannot again be examined, until at least three months after such failure. RULE IX. The State Board of Law Examiners shall hold at least one examination in each judicial department, at the city or village in which the Appellate Divisions of the Supreme Court are held, between the tenth day of June and the twentieth day of July in each year, and one examination in each department at the places above named, during the month of January in each year. They may appoint other times and places for additional examinations, and may hold some or all of such additional examinations concurrently with the regular or annual examinations of any law school in this State, and any applicant entitled to be examined may be so examined in any department, whether a resident therein or not. These rules shall take effect on January I, 1896. Nevada. Any white, male citizen of the United States, of the age of twenty-one, who possesses the requisite quali- fications of learning and ability, and is of good moral character, may be admitted to practice law in all the courts of Nevada. An examination is held by a com- mittee for each judicial district, consisting of at least three, of whom the District Judge is one. The testi- monials of good character and the examination may 26o RULES REGULATING ADMISSION be dispensed with in the discretion of the Supreme Court. Attorneys from other States are admitted to practice in Nevada upon making affidavit of their admission to practice in such other States, or upon the production of their license. A fee of $25 must be paid prior to the application for admission, by all candidates. In the examination the questions and answers must be in writing. The following subjects may be embraced in the examination : 1. The history of Nevada and of the United States. 2. The constitutional relations of the State and Federal Governments. 3. The jurisdiction of the various courts of the State and of the United States. 4. The various sources of our municipal law. 5. The general principles of the common law re- lating to property and personal rights and obligations. 6: The general grounds of equity jurisdiction, and the principles of equity jurisprudence. 7. Rules and principles of pleading and evidence. 8. Practice under the civil and criminal codes of Nevada. 9. Pleadings in hypothetical cases. 10. The course and duration of the candidate's studies. North Carolina. Applicants who apply for admission to practice in all the courts are examined by two or more Justices of the Supreme Court. Sufficient age, good moral character, and learning are the qualifications. No specified term of preliminary study is required. Attorneys from other States and foreign countries shall not be admitted to practice in the courts of North Carolina, unless they shall have previously resided in the State one year, or unless they shall produce to the TO THE BAR IN ALL THE STATES. 261 Justices of the Supreme Court a testimonial from the chief magistrate of such State or country, or from some other competent authority, that they are of unexcep- tionable moral character. (For North Dakota see South Dakota.) Ohio. The applicant must be twenty-one years old, must have resided in the State for the year next pre- ceding his application for admission, and must be a citizen of the United States, or have declared his in- tention of becoming a citizen thereof. He must pro- duce from some attorney a certificate to the effect that the applicant is of good moral character and that he has regularly and attentively studied law during a period of two years previous to his application for examina- tion, and that he believes him to be a person of suffi- cient legal knowledge and ability to practice law. Attorneys from other States who locate in Ohio may be admitted to examination upon proving that they have studied law for two years with some attorney the signature to whose certificate, if unknown to the court, must be authenticated by the certificate of the clerk under the seal of the court of the State from which the applicant comes or that they have been engaged in the practice of law for two years, which practice must be certified to by a Judge of the court, or an attorney in good standing at the Bar, authenti- cated in like manner. Women are admitted on the same terms as men. Oregon. Applicants are examined by the Justices of the Su- preme Court, or under their direction, upon the com- mon law, the law merchant, the principles of equity jurisprudence, the history and constitutional law of 262 RULES REGULATING ADMISSION England prior to the Declaration of Independence, the history and constitutional law of the United States, the statute and constitutional law of Oregon, and the practical administration of the law. Every applicant must produce the certificate of some attorney of good standing, that such applicant has read law at least two years, if a graduate of some literary instit- tution, or if not such a graduate, at least three years, and that he has the requisite learning and ability. There must also be a certificate of two attorneys that the applicant is a man of good character. The certi- ficate of the length of time spent in study is dispensed with if the applicant produces a diploma from any regular law school, showing that he has graduated at such school. The applicant must also file his affidavit that he is a citizen of the United States, and has read the books, a list of which shall be included in his affidavit. Attorneys who have been admitted to the Bar of the Supreme Court or court of last resort of any other State or Territory, or of England, her colonies and de- pendencies where the common law prevails, and who are otherwise qualified, may be admitted to practice in the courts of Oregon on motion founded upon proper certificates of admission to such courts, accompanied by a certificate signed by a Judge of some court of general jurisdiction in the county in which the appli- cant last resided that he is of good moral character and standing at the Bar, and has practiced law at least one year. Women are admitted upon the same terms as men. Pennsylvania. The rules in this State vary somewhat in the different counties. The following are those operating in Alleghany County, which may be taken as a type of those prevailing throughout the State. TO THE BAR IN ALL THE STATES. 263 It shall be the duty of every attorney to register with the Prothonotary the name, age, and place of residence of every person studying law under his direction, and the term of study shall be computed from such registration. But no person shall be regis- tered as a student of law until he shall have been ex- amined by the Board of Examiners on the elements of the Latin language and all the branches of a thorough English education, including algebra, geometry, and natural sciences, or fair equivalents therefor. No person shall be admitted to practice as an attorney except upon the following conditions: ist. He shall be a citizen of the United States and of full age. 2d. Every student applying for admission shall first cause notice to be published in the Pittsburg Legal Journal, of his intention to make such application, for one week prior to his examination by the Board of Ex- aminers, which notice shall set forth the name of the applicant, in whose office he has studied, and at what time he will apply to be admitted. 3d. He shall have served a regular clerkship in the office, and shall have studied under the direction of an attorney or judge, for three years, or pursued the study of law in some law school of good repute, or, after be- ing of full age, he shall have pursued his studies 'dili- gently in the office of some practicing attorney or of a judge, for the term of two years ; provided that a course of study in any law school of good repute shall be deemed equivalent to a like term of study in the office of an attorney. 4th. He shall undergo an examination by a Board of Examiners, appointed by the court, on the principles and practice of law and equity, and shall file with the Prothonotary, at the time his admission is moved for, a certificate signed by all the examiners who were 264 RULES REGULATING ADMISSION present at his examination, that he is sufficiently qualified for admission to the Bar, and that they have received satisfactory evidence of his good moral character. The examination shall consist partly of written ques- tions, to be answered in writing by the student, which questions and answers shall be reported to the court. Unless otherwise specially ordered, no person ad- mitted to practice in other States shall be admitted to practice in Pennsylvania, until he shall have appeared be- fore the Board of Examiners, and produced a certificate, signed by all the examiners present at his examination, that they have received satisfactory evidence of his moral character and professional qualifications, includ- ing at least two years of diligent study or practice of the law, and recommending his admission to the Bar. Written notice of his intention to apply for such ad- mission shall be given to the Board at least two weeks prior to such application. This rule does not apply to attorneys from other courts, seeking to be admitted for special cases. All motions for admission to the Bar shall be made by members of the Board of Examiners. Rhode Island. Persons who have had a classical education and have studied law two years, six months of which must have been spent in the office of a counsellor of Rhode Island, may be admitted, after passing a satisfactory examina- tion before an examining committee appointed by the Supreme Court. Three years must be spent in study by those who have not had a classical education. There must be satisfactory testimonials of good moral character. Attorneys from other States, in order to be admitted to the Rhode Island Bar, if they have been in practice TO THE BAR IN ALL THE STATES. 265 less than three years, must be recommended by some counsellor of Rhode Island, must prove that the same time was spent in study as is required in Rhode Island, must study six months in the State, and pass a satis- factory examination. Attorneys from other States who have been in practice more than three and less than ten years are eligible for examination on recom- mendation of a Rhode Island attorney. Attorneys who have been in practice more than ten years, may be admitted without examination by special permission of the Supreme Court. South Carolina. Applications for admission are made to the Supreme Court. The application should state that the appli- cant is a citizen of the State, twenty-one years old, and that he has read the course prescribed by the Supreme Court. In case other books have been read in place of those thus described, they should be named. The ap- plication should be accompanied by a certificate of a practicing attorney of the Supreme Court, that the ap- plicant is a person of good moral character. The ex- amination is conducted in writing. The following is the course of study prescribed : Blackstone's Commentaries; Kent's Commentaries; Parsons, or Chitty, on Contracts ; Daniel on Negotiable Instruments, or Chitty on Bills ; Williams on Executors ; Tidd's Practice ; Pomeroy on Remedies ; Greenleaf on Evidence; Story's Equity Jurisprudence; Adams' Equity; Daniel's Chancery Pleading and Practice; Bishop on Criminal Law; Constitution of the United States, Constitution of South Carolina, General Statutes of South Carolina, and all acts of a public nature passed since ; Rules of Supreme Court, Circuit and Probate Courts. Attorneys from other States, upon producing satis- 266 RULES REGULATING ADMISSION factory proof thereof, are admitted to practice in the courts of a similar grade of South Carolina. South Dakota. Any person, of the age of twenty-one, an inhabitant of the State, who satisfies a court of record, on exam- ination or by certificate of admission from any other State or Territory, that he possesses the requisite learn- ing and is of good moral character, may be admitted to practice. (A similar regulation prevails in North Dakota.) Tennessee. Any person may practice as an attorney before Justices of the Peace or the county courts, who is of good moral character and twenty-one years old. An examination must be passed before any two Judges or Chancellors by those who wish to practice in all the courts of the State. The faculty of any law school in the State has power to grant licenses to practice. Per- sons from other States are licensed in like manner, upon examination and satisfactory evidence as to age and character. Attorneys from other States, locating in Tennessee, are admitted to practice, upon producing license and satisfactory evidence of good character. Texas. Application can be made during the term of a Dis- trict Court or of the Supreme Court, accompanied by a certificate from the County Commissioners' Court of the county in which the applicant resides, that he has been a resident of the State at least six months, that he is twenty-one years old, and is of good moral character. Thereupon an examination is held in open court by a committee of three or more practicing attorneys ap- pointed for that purpose. The candidate is expected TO THE BAR IN ALL THE STATES. 267 to have studied Blackstone's Commentaries; Kent's Commentaries; Stephen, Gould, or Chitty on Plead- ing; Story's Equity Pleading; Parsons, Story, or Chitty on Contracts ; I Greenleaf, Starkie, or Phillips on Evi- dence ; Parsons or Daniel on Promissory Notes ; Story orGowon Partnership; Story's Equity Jurisprudence, or Adams' Equity; and he must have some general knowledge of the State Constitutions and Statutes, and of the rules of the District and Supreme Courts of the State. Attorneys from other States locating in Texas, are admitted to practice upon producing a license of ad- mission to practice in the States from which they came, together with satisfactory evidence of moral character. Utah. Any citizen of the United States, or any person who has bona fide declared his or her intention of becoming one, in the manner prescribed by law, of the age of twenty-one, of good character and the requisite learn- ing and ability, may be admitted to practice. An ex- amination is conducted in open court by a committee appointed by the Supreme Court. District Courts may admit persons to practice in their respective districts, upon like terms and in like manner. Attorneys who have been admitted to the highest court of any State or Territory, may be admitted without examination, upon affidavit to the fact of such admission or upon the production of a license. Vermont. Students are eligible for examination who have studied in the office of an attorney of the Supreme Court for three years next previous to their application, the last six months of which must be spent in the county where the applicant resides when the applica- 268 RULES REGULATING ADMISSION tion is made. Time spent in a law school shall be deemed an equivalent for time spent in an attorney's office, except for the last six months of the said three years. A student must file, as soon as possible, with the clerk of the court of the county in which he resides, a notice stating that he has commenced the study of law with the intention of becoming an attorney, and with whom and where he has commenced such study ; also a certificate of the attorney with whom he is study- ing, stating that he is so engaged, and when such study began, and the three years commence from the filing of the notice and certificate. Every applicant must file, with the clerk of the court of the county where he resides, at least fourteen days before the session of the General Term of the Supreme Court, a petition for admission, verified by his affidavit, stating age, residence, time of study, and with whom and where such studies have been pursued. There must also be an affidavit of an attorney, stating that the applicant's studies have been actually pursued three years. Certificates of at least three attorneys are required that the applicant is of good moral character. Applicants are examined by a committee of the Bar, consisting of not less than three members. Examinations are both written and oral, and are conducted in public. The Supreme Court, upon sufficient cause shown, may allow study in an office outside the State as an equivalent for study in the State. Attorneys from other States are admitted to practice in the courts of Vermont, without examination, on proof that they are attorneys of the highest courts of such other States; that they have practiced law one year as such, are of good character, and have resided for six months next preceding their application, in the county in Vermont where the application is made. TO THE BAR IN ALL THE STATES. 269 Virginia. Any two Judges of the courts of Virginia, except Judges of county and corporation courts, may grant a license to practice law to any person who, on actual examination, shall be found duly qualified, and who shall produce a certificate from the court of any county or corporation that, to the personal knowledge of the Judge of such court, or from the information of credit- able witnesses testifying on oath before such court, the court is satisfied that the applicant is a person of honest character, and twenty-one years of age. Attorneys from other States and Territories may practice as such in the courts of Virginia. Such at- torney must produce to each court in which he intends to practice, satisfactory evidence of his having been licensed in his own State, and when taking a license to practice in Virginia, must take the oath of fidelity to the Commonwealth. Washington. The following persons are entitled to practice as at- torneys and counsellors in all courts of the States : 1. All citizens of the United States who present to any court of record a license from any court of record in any other State or Territory, showing that the per- son presenting the same has been duly admitted to practice in said court. 2. All citizens of the United States who are over twenty-one years of age and who shall present to any court of record in the State a diploma from a law school, and are found upon examination under the di- rection of the court, to possess the requisite qualifica- tions of learning and ability. 3. All citizens of the United States, over the age of twenty-one years, of good moral character, and who possess the requisite qualifications of learning and 2/0 RULES REGULATING ADMISSION ability, and who shall be examined and admitted, ac- cording to the method prescribed by law. Appli- cants of the third class must apply for admission to the Supreme Court or some district court, and must show that they are of the age of twenty-one, which may be proved by their affidavit, that they are persons of good moral character, which may be proved by certified or other evidence satisfactory to the court, that they have diligently studied the common law and the laws of the State for at least eighteen months previous to the date of their application, under the direction of some prac- ticing attorney of the State, the proof of which shall be the certificate of the attorney with whom the appli- cant has studied. The applicant is examined by the Judges, or under their direction, at the time at which application is made. West Virginia. The applicant must appear before the County Court of the county in which he has resided during the last preceding year, and prove to the satisfaction of the court that he is twenty-one years old, of good charac- ter, and that he has resided in said county for the year next preceding the date of his application. Upon such proof being made, an order to this effect is en- tered on the record of the court, and upon the produc- tion of a certified copy of the order, any three Judges of the higher courts of the State may give a full and thorough examination, and may give the applicant a license to practice. Any attorney duly licensed in another State or Ter- ritory may practice as such in the courts of West Vir- ginia upon producing satisfactory evidence of his having been thus licensed. Graduates of the law school of West Virginia University, upon presenting the order before refer- TO THE BAR IN ALL THE STATES. 2/1 red to, together with diploma, shall be admitted to practice. Wisconsin. Any person of good moral character and twenty-one years of age, who has studied law for two years, upon satisfactory proof of these facts, may be examined in open court or by a committee appointed for that pur- pose, and is admitted to practice if such examination is satisfactory. Graduates of the law departuent of the University of Wisconsin are admitted to practice in all the courts of the State upon production of diploma. All persons who have been admitted to practice in the Supreme Court of any other State or Territory, and who shall be residents of Wisconsin, may be ad- mitted upon the production of their certificates to practice in such States or Territories. Women are admitted to practice on the same terms as men. Wyoming. Any person, who is a citizen of the United States, who has read law for two years, one of which must be in the office of one of the Judges or of a regularly practicing attorney, who shall certify that the appli- cant is a person of good character and well qualified to practice law, and who satisfies any district court of his ability by an examination, may be admitted to prac- tice. Any person admitted to practice in the District Court is admitted to practice in the Supreme Court upon motion. Attorneys from other States locating in Wyoming are admitted to practice upon motion, on producing a certificate of admission and upon showing to the satis- faction of the court that they are in good standing and of good character. INDEX. ABATEMENT, pleas in, 192. kinds of, 192. must give plaintiff a better writ, 2OI. ACCESSION, 83. ACCESSORIES, 221. when there may be, 222. ACCIDENT, 167. equitable relief afforded when, 167. ACCOUNTS, 180. to falsify, 180. to surcharge, 180. when under control of equity, 180. ACTION, appearance in, 181. begun how, 189. classes of, 184. common counts, 186. Ex contractu, assumpsit, 186. covenant, 187. debt, 187. Ex delicto, case, 1 88. replevin, 188. trespass, 187. trover, 187. Personal actions, 186. Real actions, ejectment, 182, 185. quare impedit, 184. writ of dower, 184. writ of right of dower, 184. Venue of, 199. (273) 274 INDEX. ADJUSTMENT, 174. ADMINISTRATOR, authority of, 87. de bonis non, 86. duties of, 86. with will annexed, 86. ADMISSIONS, when admissible, 213. ADVANCEMENTS, 184. ADVERSE POSSESSION, 53. ADVOWSONS, 23. AFFRAY, 222. AGENCY, defined, 108. how created, 109. how terminated, no. AGENTS, acts of, when binding, 108, 109. kinds of, 108, no. master and servant, 112. public and private, distinction between, no. set-off by third party, 109. sub-agents, 109. when personally liable, 109. AIDS, 18. ALABAMA, 235. ALIENATION, by devise, 78. by spcial custom, 77. defined, 59. to a corporation, 69. ALIMONY, 10. ALLODIAL LANDS, 18. ALLUVION, 58. AMBIGUITIES, 210. ANCIENT DEMESNE, 21. ANNUITIES, 24. APPEARANCE, 189. ARBITRAMENT AND AWARD, 135. ARBITRATION, 135. ARIZONA, 236. ARKANSAS, 236. INDEX. 275 ARREST, of judgment, 196. under process, 151. without warrant, 152. ARSON, 222. ASSAULT, as a crime, 222. as a tort, 151. ASSIGNMENT, as a common assurance, 68. in equity, 167. ASSUMPSIT, allegation of promise necessary, 138. in quasi-con tracts, 138. kinds of, 186. ASSURANCES BY MATTER OF RECORD, 75. ATTESTATION, of a deed, 61. of a will, 79. ATTORNEY, no. ATTORNMENT, 19. AUCTIONEERS, in. BAGGAGE, 107. BAILMENTS, commodatum, 102. depositum, 101. locatio, 103, 104. mandatum, 102. pignus, 102. distinguished from mortgage, 103. warehouseman, 102. BARGAIN AND SALE, 72. BARRATRY, 222. BARRETRY, 222. BARTER, 96. BASE FEE, 38. BATTERY, intent to commit necessary, 151. justified how, 151. BIGAMY, 223. 276 INDEX. BILLS IN EQUITY, defined, 202. of account, 180. of creditors (see CREDITORS' BILLS), of discovery, 181. of interpleader, 182. of peace, 182. of review, 204. of revivor, 204. in nature of bill of, 204. partnership, 181. quia timet, 181. supplemental bills, 204. in nature of, 205. to perpetuate testimony, 183. to quiet title, 182. to take testimony, 183. BILLS OF EXCHANGE, acceptance, how made, 126. kinds of, 126. promise of, 126. supra protest, 126. acceptor, liability of, 125. days of grace, computation of, 94. rules governing, 127. domestic, 126. essentials of, 125. foreign, 127. indorsers of, 125. notice of dishonor of, 126. parties to, 125. payable when, 125. protest of, 126. BLASPHEMY, 223. BONDS, penal, 167. relief given when, 168. specific performance as affecting, 1 68. BOROUGH ENGLISH, 20. BOUGHT AND SOLD NOTES, in. INDEX. BRIBERY, 223. BROKERS, in. BURGLARY, 223. CALIFORNIA, 237. CANONS OF DESCENT, 54. CASE, ACTION OF, 188. CASUAL EJECTOR, 185. CAVEAT EMPTOR, 97. CESTUI QUE VIE, 31. CHAMPERTY, 223. CHANCERY, COURT OF, 160 CHEATING, 224. CHECKS, 127. CHILDREN, KINDS OF, 12. CHOSES, in action, 83. in possession, 83. CIVIL LAW, i. CODE, r. CO-EMPLOYEES, 113. COGNIZEE, 76. COGN1ZOR, 76. COLORADO, 237. COMMON, distinguished from easement, 25. right of, 23. COMMON ASSURANCES, 59. COMMON CARRIERS, defined, 104. liability of, 105, 106. begins when, 105, 107. beyond own route, 106. ends when, 105, 107. for baggage, 107. regulation of, by contract, 107. COMMON COUNTS, 186, 187. COMMON LAW, 2. COMMON RECOVERY, as devised by the ecclesiastics, 70. as a means of barring estates tail, 76. CONDITIONS, KINDS OF, 38, 63. 2/7 2/8 INDEX. CONFESSION AND AVOIDANCE, PLEA BY WAY OF, 193. CONFESSIONS, 214. CONFIRMATION, 67. CONFUSION OF GOODS, 83. CONNECTICUT, 238. CONSANGUINITY. how computed, 53, 54. kinds of, 53. CONSIDERATION, adequacy of, not necessary, 92. denned, 91. executed, when sufficient, 9*. kinds of, 91. of a deed, 60. of depositum, 101. of guaranty, 133. of quasi-contracts, 143. of promissory notes, 118, 119. CONSPIRACY, 224. CONSTRUCTION, of contracts, 136. of statutes, 4. CONTRACTS, ambiguities in, 210. assent to, 91. classes of, 89. consideration of, 91. construction of, 136. defences to actions on, 135. defined, 89. essentials of, 89. fraudulent, 94. illegal, 93. immoral, 93. implied, in fact, 89. in law (see QUASI-CONTRACTS). impolitic, 93. lex fori, 94. lex loci contractus, 94. lex loci solutionis, 94. made when intoxicated, 91. INDEX. 279 CONTRACTS CONTINUED. marriage brocage, 93. of record, 138. parties to, 90. void when, 99. void and voidable distinguished, 90. CONTRIBUTION, in equity, 174. of sureties, 141, 174. of tort feasors, 141, 149 CONVENTIONAL ESTATES, 31. CONVERSION, defined, 154. distinguished from trespass, 154. evidence of, 155. in equity, 174. kinds of, 154, 155. CONVEYANCES, in defraud of creditors, 171. kinds of, 66. under statute of uses, 72. COPARCENARY, defined, 50. distinguished from joint tenancy, 50. partition, right of, 51. seisin, 51. COPYHOLDS, defined, 20. how conveyed, 77. how devised, 77. incidents, 21. CORODIES, 24. CORPORATIONS, classes of, 230. defined, 230. how created, 231. how dissolved, 231. powers of, 231. seal of, 232. COUNTERFEITING, 224. COVENANT, action of, 187. 280 INDEX. COVENANT CONTINUED. damages, when broken, 64. in a deed, 64. to stand seised, 72. COVERTURE, 10. CREDITORS' BILLS, 180, 181. CRIME, accessories in, 221. classes of, 221. defined, 219. drunkenness as affecting, 220. intent necessary, 219. parties incapable of, 219. principals in, 220. rule against second trial for, 222. rule of reasonable doubt, 222. CURTESY, defined, -32. essentials of, 33. in equitable estates, 33. CUSTOMS, kinds of, 2. requisites of, 3. CY PRES, DOCTRINE OF, 81, DAMAGES, defined, 149, 150. excessive, ground for new trial, 196. in breach of covenant, 64. in trover, 188. vindictive, 150. DAMNUM ABSQUE INJURIA, 150. DEBT, ACTION OF, 187. DECLARATION, counts of, 199. defined, 191. dying, 213. improper joinder of counts, 199. DECREE, IN EQUITY, 203. DEED, construction of, 136. defined, 60. INDEX. 28l DEED CONTINUED. how avoided, 65. of married woman, 90. parts of, 62. profert of, 201. record of, 61. relief for loss of, 167, 1 80. takes effect when, 61. DEFEASANCE, 68. DEFENCES, in pleading in equity, 202. to actions ex contractu, 135. DELAWARE, 240. DEL CREDERE COMMISSION, 112. DELIVERY, in sales, 97, 98. of a gift, 87. of promissory notes, 1 14. DEMURRER, defined, 191. kinds of, 191. special, when necessary, 191. DEODAND, 84. DEPARTURE, IN PLEADING, 201. DESCENT, canons of, 54. cast, 52. defined, 53. DEVISE, defined, 78. execution of, 79. of personal property, 78. of real property, 78. parties, 78. revoked how, 80. signature to, 79. witnesses to, 79. DIGNITIES, 24. DISCLAIMER, 202. DISTRESS, 24, 188. DISTRIBUTION, OF PROPERTY,, 55. DIVORCE, 10. 282 INDEX. DOGS, USE OF, 152. DOMICILE, 87. DOWER, barred how, 34. defined, 33. essentials of, 33. DRAFT. (See BILLS OF EXCHANGE.) DURESS, RECOVERY OF MONEY PAID UNDER, 147. EASEMENTS, created how, 25. defined, 25. distinguished from licenses, 25. kinds of, 26. EJECTMENT, ACTION OF, 185. ELECTION, 173. EMBEZZLEMENT, 224. EMBLEMENTS, 32, 35. EMBRACERY, 224. EMINENT DOMAIN, 8, 26. ENGROSSING, 224. ENTRIES, AS EVIDENCE, 212, 213. EQUITABLE REMEDIES (see BILLS IN EQUITY), injunctions, 179. re-execution, 180. rescission and cancellation, 180. specific performance, 177, 178. EQUITY, accident (see ACCIDENT), 167. assignments, 167. contribution, 174. courts of, how distinguished from those of common law, 161. defined, 160. election, 173. estoppel (see ESTOPPEL), 172. exoneration, 175. fraud (see FRAUD), 169. liens, equitable, 176. marshalling of assets, 175. maxims of, 161. mistake (see MISTAKE), 168. mortgages (see MORTGAGE), 167. INDEX. 283 EQUITY CONTINUED. notice (see NOTICE), 171. origin of jurisdiction in, 160. subrogation, 175. trusts (see TRUSTS), 163. ERASURE, 65. ERROR IN LAW, 197. ESCAPE, 228. ESCHEAT, 19, 57, ESCROW, 61. ESTATE, 28. ESTATES, at sufferance, 36. at will, construed as estates from year to year, 36. defined, 36. notice of termination of, 36. for life, 31. for years, created how, 35. incidents of, 35. kinds of, 35. repair of buildings leased, 36. in curtesy (see CURTESY), 32. in dower (see DOWER), 33. in fee simple, conditional estate in, 29. defined, 28. word heirs, when necessary to create, 28. in fee tail, barred how, 30. created how, 30. incidents of, 30. kinds of, 30. merger in, 46. in joint tenancy, conveyed how, 49. created how, 49, 51. destroyed how, 50. partition of, 50. survivorship in, 50. tenants in, seised how, 49. 284 INDEX. ESTATES CONTINUED. in joint tenancy continued, unities of, 49. in severally, 49. upon condition, condition void when, 38. upon condition, ^ with limitation, C distinguished, 39. with conditional limitation, ; ESTOPPEL, as applied in election, 173. defined, 173. essentials of, 173. kinds of, 172. ESTRAYS, 85. EVIDENCE, admissions as, 213. circumstantial, 207. confessions as, 214, direct, 206. excluded, 214. hearsay, rule against admission of, 211. apparent exceptions to, 211. real exceptions to, 212. instruments of, 206. oral, as affecting written instruments, 209, 21 1. presumptive, 207. primary, 209. proof, distinguished from, 206. burden of, 209. rules of, 208. witnesses (see WITNESS), 215. EXCEPTION, 63. EXCHANGE, 67. EXECUTION, WRIT OF, 197. EXECUTOR, authority of, 87. defined, 86. de son tort, 87. duties of, 86. with will annexed, 86. INDEX. 28; EXECUTORY DEVISE, 47. EXONERATION, 175. EXTORTION, 225. FACTOR, as surety, 112. defined, in. distinguished from broker, in. power to pledge goods, 112. FALSE IMPRISONMENT, 151, 225. FEE SIMPLE. (See ESTATES.) FELONY, 221. FEMME COVERT, 10. FEOFFMENT, 66. FEUD, 18. FEUDAL SYSTEM, 17. FEUDUM ANTIQUUM, 56. FINE, defined, 75. effect of, 76. parts of, 75. FINES, 19. FIXTURES, agricultural, 83. defined, 82. question as to, arises when, 82. how determined, 82. FLORIDA, 241. FORESTALLING, 224. FORFEITURE, 57, 84. FORGERY, 225. FRANCHISES, 24. FRANKALMOIGN, 21. FRANKMARRIAGE, 30. FRAUD, as affecting specific performance, 178. classes of, 169, 170. equitable remedy for, 169. instances of, not cognizable in equity, 169. FREE AND COMMON SOCAGE, 19, 21. FREEHOLD, 28 286 INDEX. GAVELKIND, 20. GEORGIA, 241. GIFT, DEED OF, 66. GIFTS, causa mortis, 87. deliver)- of, 87, 88. inter vivos, 87. revocable when, 87. GRAND SERGEANTY, 19. GRANT, 67. GUARANTOR, defined, 133. released how, 134. subrogation of, 134. GUARDIAN, accounts of, 16. ad litem, 16. duties of, 15. GUARDIANSHIP, KINDS OF, 14. HABENDUM, 62. HEIRLOOMS, 85. HEIRS, apparent, 54. as used in a deed, 28. presumptive, 54. HEREDITAMENTS, KINDS OF, 22. HERIOTS, 21, 85. HOMAGE, 17. HOMICIDE, defined, 225. excusable, 225. felonious, 226. justifiable, 225. HOTCHPOT, 51. HUSBAND AND WIFE (see MARRIAGE), communications between, 214. necessaries, liability for, u. power to contract, 10. torts, liability for, n. IDAHO, 243. INDEX. 287 IDIOTS, contracts of, 90. incompetent to make devise, 78. ILLINOIS, 243. INCORPOREAL HEREDITAMENTS, INDENTURE, 60. INDIANA, 244. INDORSEMENT, contract of, 116. kinds of, 116, 117. INFANTS, contracts of, 90. criminal capacity of, 219. custody of, 12. duties to, 12. emancipation of, 14. power to devise, 78, 79. support of parents by, 14. INJUNCTIONS, 179, INJURIA SINE DAMNO, 150. INNKEEPERS, 104. INSTITUTES, i. INTERESSE TERMINI, 35. INTERNATIONAL LAW, i. INTERPRETATION, 4. INTESTACY, 85. INVESTITURE, 17. IOWA, 244. ISSUE, 191. JOINT TENANCY. JOINTURE, 34. JUDGMENT, as a contract, 138. defined, 197. motion for, non veredicto obstante, 196. JURISDICTION, PLEA TO, 192. JUS ACCRESCENDI, 50. JUSTINIAN, i. KANSAS, 245. KENTUCKY, 245. 288 INDEX. KIDNAPPING, 227. KNIGHT SERVICE, 18. LAND, defined, 22. devised by uses, how, 71, 78. LARCENY, 227. LAW, defined, i. interpretation of, 4. LEADING QUESTIONS, 216. LEASE, 35, 67. LEASE AND RELEASE, 73. LEGACY, abatement of, 81. defined, 80. in restraint of marriage, 94. kinds of, 80. LEX, domicilii, 87. fori, 94. loci contractus, 94. loci rei sitae, 87. loci solutionis, 94. LIBEL, belief in truth of, no defence, 158. classes of, 1 56. criminal when, 157. defined, 156. malice essential to, 157. privileged communications, 157. truth of, a defence when, 157. LICENSES, 25. LIENS, arise how, 106. defined, 106. equitable, 176. kinds of, 106. stoppage in transitu, effect of, roo. LIFE, 7. LIGHT AND AIR, EASEMENT OF, 26. LIMBS, 7- INDEX. 289 LIVERY OF SEISIN, 66. LOUISIANA, 246. MAINE, 247. MAINTENANCE, 223. MALICE, in libel and slander, 157. in malicious prosecution, 159. in murder, 227. kinds of. 157. MALICIOUS PROSECUTION, action for, how maintained, 158. lies for civil suit, 159. advice of counsel, effect of, 159. malice essential, 159. probable cause, 158. MANOR, 20. MANSLAUGHTER, 226. MARRIAGE. a valuable consideration, 91. ceremony, 10. consequences of, 10. contract of, 9, 10. denned, 9, 19. disabilities arising from, 9. dissolved, how, 10. effect of, on devise, 80. MARRIED WOMEN, contracts of, 90. equitable estate of, 90. incompetent to make devise, 78. MARSHALLING ASSETS, 175 MARYLAND, 247. MASSACHUSETTS, 248. MASTER AND SERVANT, 1 12, MAYHEM, 15, 227. MERGER, 46, 47. MESNE LORDS, 18. MICHIGAN, 249. MISDEMEANOR, 222. MISFEASANCE, 102. 2QO INDEX. MISSISSIPPI, 249. MISSOURI. 250. MISTAKE, 168, 169. MONTANA, 250. MORTGAGES, defined, 40. equitable, 176. equity of redemption, 40. fee, as between parties to, 41. foreclosure, methods of, 41. parts of, 40. personal remedy against mortgagor, 42. possession of premises, 41. tacking, 42. MORTMAIN, STATUTES OF, 99. MORTUARIES, 85. MULTIFARIOUSNESS, 203. MUNICIPAL LAW, I, 2. MURDER, 226. NEBRASKA, 251. NECESSARIES, contracts for, 90. defined, 13. NEW HAMPSHIRE, 251. NEW JERSEY, 252. NEW YORK, 253. NEVADA, 257. NEXT FRIEND, 16. NONFEASANCE, 102. NORTH CAROLINA, 258. NORTH DAKOTA, 259. NOTES. (See PROMISSORY NOTES.? NOTICE, defined, 172. equitable doctrine of, 171. kinds of, 172. NOVATION, 134. NUISANCE, defined, 153. kinds of, 153, 154. .NUNCUPATIVE WILL, 79. INDEX. 2 9 I OBTAINING MONEY UNDER FALSE PRETENCES, 225 OCCUPANCY, TITLE BY, 31, 58,83. OFFENSIVE TRADE, 154. OFFICES, 23. OHIO, 259. OREGON, 259. OYER, DEMAND OF, 194. PANDECTS, i. PARAPHERNALIA, II. PARENT, necessaries, when liable for, 13. torts, when liable for, 14. wages of child, right of, 14. PARTITION, DEED OF, 67. PARTNERS, acts of, when binding, 129, 130. admission of antecedent debt by, 130. as regards third parties when, 128. distinguished from joint tenants, 129. inter se, 129. kinds of, 128. land held by, how regarded, 129. liability of, for borrowed money, 130. majority of, can bind minority, 130. notice by retiring partner, 132. PARTNERSHIP, created how, 129. defined, 128. dissolved how. 131. satisfaction of claims against, 132. PARTNERSHIP BILLS. (See BILLS IN EQUITY.) PARTY WALLS, 27. PASTURAGE, 23. PENALTY, IN BOND, 168. PENNSYLVANIA, 260. PENSIONS, 24. PERJURY, 228. PERPETUITIES, rule against, 45. exception to, 46, 166. 292 INDEX. PERSONAL PROPERTY, defined, 82. descent of, 87. devise of, 78, 79. fixtures (see FIXTURES), 82. kinds of, 82. remainder in, 83. title to, how acquired, 83. PERSONAL SECURITY, 7. PETIT SERGEANTY, 20. PIRACY, 228. PISCARY, 23. PLEA, defined; 192, 203. dilatory, kinds of, 192. to be pleaded when, 201. peremptory (pleas in bar), kinds of, 193. puis darreign continuance, 193. PLEADING, rules of, at law, miscellaneous, 201. to prevent, obscurity, 200. prolixity, 201. to produce, a certain issue, 199. a material issue, 198. a single issue, 198, 199. in equity, begun how, 202. bill, parts of, 202. defence, kinds of, 202. rules of, in regard to the bill, 203. in regard to the defence, 204. POLYGAMY. (See BIGAMY.) PREMISES, 62. PRESCRIPTION, 58. PRESUMPTIONS, 207. PRIMER SEISIN, 18. INDEX. PRISON BREACH, 228. PRIVATE PROPERTY, 8. PRIVIES, in fines, 76. in estoppel, 172. PRIVILEGED COMMUNICATIONS, 157. PROFERT, 194, 201. PROFESSIONAL COMMUNICATIONS, 214. PROFIT A PRENDRE, 25. PROMISSORY NOTES, accommodation, 119. at sight, 1 20, 121. consideration of, 118. may be inquired into when, 119. days of grace, 121. defined, 114. due when, 121. essentials of, 114. indorsement (see INDORSEMENT). indorser, accommodation, 118. effect of release of, 124. notice of dishonor, effect of failure to receive, 122. effect of notice to all indorsers, 123. excuses for failure to give, 123. form of, 123. to he given by whom, 122. to be given how, 122. to be given when, 122. unnecessary when, 124. when bound without notice, 124. innocent holder for value, 118, 119. joint, 115. lost, 124. non-negotiable, 124. overdue, 119. parties to, 115, 116. presentment, excuses for failure to present, I2O. of a demand note, 120. of a sight note, 121. 29: 294 INDEX. PROMMISSORY NOTES CONTINUED, presentment continued, place of, 121, 122. time of, 121. to bind indorsers, 120. to bind maker, 120. title to, how passed, 1 16. PROOF. (See EVIDENCE.) PUFFERS, in. PURCHASE, TITLE BY, 57. QUALIFIED FEE, 28. QUANTUM MERUIT, 186. QUANTUM VALEBAT, 187. QUARANTINE, OF WIDOW, 34. QUASI-CONTRACTS, based on unjust enrichment, 139. classes of, 138. classified as contracts why, 138. consideration, failure of, 142. insurer's right to recover in, 141 mistake, of fact, 144. of law, 145. money paid under duress, 147. surety's right to recover under, 140. waiver of tort, 145. QUE ESTATE, 58. REAL PROPERTY, defined, 22. descent of, 87. REBUTTER, 193. RECEIPTS, 210. REDDENDUM, 62. RE-EXECUTION, 180. REFORMATION, 180. REGRATING, 225. REJOINDER, 193. RELEASE, 67. RELIEF, 1 8. INDEX. 295 REMAINDERS, defined, 43. double possibility in, 44. essentials of, 43. illustrations of, 44. kinds of, 43. RENTS, 24. REPLEADER, MOTION FOR, 196. REPLEVIN, 188. REPLICATION, 193. RESCISSION AND CANCELLATION, 180. RESCUE, 228, RESERVATION, 63. RES GESTAE, 212. RETURN DAY, 189. REVERSION, 47. RHODE ISLAND, 262. RIGHTS, KINDS OF, 7. RIOT, 228. RIPARIAN OWNERS, 27. ROBBERY, 229. ROUT, 228. SALE, caveat emptor, doctrine of, 97. consent of parties to, 96. defects in thing sold, 97. defined, 96. delivered, 97, 98. false representations, 97. how affected by fraud, 99. price, 96. stoppage in transitu, right of, 99. thing sold, 96. title passes when, 99. vendor remaining in possession, effect of, 99. warranties, 97. SEDUCTION, 155. SEISIN, actual, 33. constructive, 33. livery of, 66. 296 INDEX. SET-OFF, in waiver of tort, 146. when admissible, 135. SHELLY'S CASE, RULE IN, 45. SLANDER, belief in truth of, no defence, 158. defined, 155. malice necessary, 157. not a crime, 157. privileged communications, 157. publication of, 155. repetition of, 156. truth of, a defence, 157. words actionable per se, 155. SOUTH CAROLINA, 263. SOUTH DAKOTA, 264. SPECIAL OCCUPANT, 31. SPECIALTIES, 89. SPECIFIC PERFORMANCE, as applied to contracts, essentials of contract, 178. when unaffe:ted by Statute of Frauds, 178. defined, 177. granted when, 177. penal bonds, how related to, 168. STATUTES, construction of, 4. defined, 3. kinds of, 3, 4. particular, 12 Charles II., 15, 18, 21, 78. 29 Charles II., 31. de donis conditionalibus, 29. de religiosis, 70. 13 Edward I., 70, 188. 13 Elizabeth, 2. 27 Henry VIII., 78. 37 Henry VIII., 75. of frauds, 98. of limitations, 94. of mortmain, 69. of uses, 71. INDEX. 297 STATUTES CONTINUED. particular -continued, of wills, 20, 78. quia emptores, 19. 15 Richard II., 70. 3 and 4 William IV., 184. STOPPAGE IN TRANSITU, 99. SUBLETTING, 32, 35. SUBPOENA, duces tecum, 215. in equity, 202. to compel attendance of witness, 215. SUBROGATION, 175. SUMMONS, 189. SUPPLEMENTAL BILLS. (See BILLS IN EQUITY.) SUPPORT, EASEMENT OF, 27. SURETY, defined, 133. released how, 134. right in quasi-con tract, 140. subrogation of, 134. SURPLUSAGE, 201. SURREBUTTER, 193. SURREJOINDER, 193. SURRENDER, deed of, 67. in copyhold estates, 77. TENANCY IN COMMON, 151. TENANCY IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT, 32. TENANT, in capite, 18. paravail, 18. per autre vie, 31. TENANTS BY THE ENTIRETY, 50. TENDER, 135. TENEMENT, 18, 22. TENENDUM, 62. TENNESSEE, 264. TENURE, 18. TERM, 35. 298 INDEX. TEXAS, 264. TITHES, 23. TITLE, by accession and confusion, 84. by alienation, 59. by custom, 85. by descent, 53. by forfeiture, 84. by gift, 87. by intestacy, 85. by judgment, 85. by occupancy, 31, 58, 83. by prerogative, 85. by prescription, 58. by purchase, 57. defined, 51. elements of, 51. TORT, animals, injuries by, 152, 153. assault, 151. battery, 151. conversion, 154. classes of, 151. dangerous animals, 152. defined, 149. dogs, injuries by, 152. false imprisonment, 151. injuries to incorporeal rights, 155. libel, 156. malicious prosecution, 158. must be immediate cause of injury, 150. nuisance, 153, 154. seduction, 155. slander, 155. trespass, 152. waste, 152. TORT FEASORS, CONTRIBUTION BETWEEN, 141, 149. TRAVERSE, 193. TREASON, 221. TRESPASS, action of, 187. defined, 152, 153. INDEX. 299 TRESPASS CONTINUED. distinguished from conversion, 154. TRIAL, defined, 194. methods of, 195. new trial, grounds for, 196. TROVER, action of, 187. demand necessary to sustain action, 188. distinguished from trespass and replevin, 187. measure of damages in, 188. TRUSTS, active, 165. charitable, 166. constructive, 163. cy pres doctrine as applied to, 166. executed, 166. executory, 165. express, created how, 165. essentials of, 165. implied, 163. origin of, 72. passive, 165. private, 166. public, 166. resulting, 164. TURBARY, 23. UNJUST ENRICHMENT, DOCTRINE OF, 139. UNLAWFUL ASSEMBLY, 229. USAGE, 3. USES, defined, 70. kinds of, 73. lands devised by, 71. objections to, 71. statute of, conveyances arising from, 72. defeated how, 72. explained, 71. UTAH, 265. 300 INDEX. VARIANCE, 208. VENIRE FACIAS DE NOVO, MOTION FOR, 196. VENUE, 199. VERDICT, defined, 195. kinds of, 195. set aside how, 195, 196. VERMONT, 265. VILLENAGE, 20, 21. VIRGINIA, 267. VIVUM VADIUM, 40. WAIFS, 85. WARDSHIP, 19. WAREHOUSEMEN, 102. WARRANTY, collateral, 63. in sales, 97. lineal, 63. WASHINGTON, 267. WASTE, 58, 152. WATER, easement of, 26. flow of, 27. subterranean, 27. WAYS, 23, 26. WELSH MORTGAGE, 40. WEST VIRGINIA, 268. WILLS. (See DEVISE.) WISCONSIN, 269. WITNESS, attendance, how enforced, 215. credibility, how impeached, 218. examination of, 216. incompetent when, 215. leading questions, when admissible, 216. legacy to, 80. not compelled to answer, when, 217. to a will, 79. written instruments, may refer to, when, 217. WRIT, defined, 189. INDEX. 301 WRIT CONTINUED. entry of, 189. issued from Chancery, 160. of habeas corpus ad testificandum, 215. of error, 197. return day of, 189. WRONGS. (See TORTS.) WYOMING, 269. [WHOLE NUMBEB OP PAGES 318.]