OF BUSINESS FOB ALL THE STATES OF THE UNION. FORMS AND DIRECTIONS FOR ALL TRANSACTIONS, BY THEOPHILUS PARSONS, LL.D., PROFESSOR OF LAW IN HARVARD UNIVERSITY, CAMBRIDGE, AND AUTHOR OF TREATISES ON THE LAW OF CONTRACTS, ON MERCANTILE LAW, ON THE LAW OF PARTNERSHIP, ON THE LAWS OF PROMISSORY NOTES AND BILLS OF EXCHANGE, ON THE LAW OF INSURANCE, AND ON THE LAW OF SHIPPING AND ADMIRALTY. HARTFORD, CONN. : PUBLISHED BY S. S. SCRANTON AND COMPANY. PHILADELPHIA, PENN. : PARMELEE & CO. SAN FRANCISCO, CAL. : H. H. BANCROFT & CO. 1871, Entered, according to Act of Congress, in the year 1869, by THEOPHILUS PARSONS, In the Clerk's Office of the District Court of the District of Massachusetts. CONTENTS. CHAPTER I. THE PURPOSE AND USE OF THIS BOOK. EMU To bring the Laws of Business within the Reach of all Persons 1 CHAPTER n. BUSINESS LAW IN GENERAL. The Principles on which it rests . ...... 5 CHAPTER HI. INFANTS OR MINORS. Form 1. Promise in Writing .....,., 11 CHAPTER IV. APPRENTICES. Forms. Form 2. A General Indenture of Apprenticeship as sometimes used in - New England 13 3. Shorter Indenture of Apprenticeship 14 CHAPTER V. MARRIED WOMEN. Abstract of the Law of Husband and Wife in the Several States . . 17 in IT CONTENTS. Forms. FAOB Form 4. Indenture to put in Trust the Property of an Unmarried Woman 40 5. Another Form of Indenture in Trust, for Property of Unmarried Women 44 CHAPTER VI. AGREEMENT AND ASSENT. Section I. The Legal Meaning of Agreement 47 IE. What is an Assent 49 HI. Offers made on Time . . . . . .50 IV. A Bargain by Correspondence 51 V. What Evidence may be received in Reference to a Writtten Contract 53 VI. Custom or Usage 55 Forms. Form 6. General Agreement, sufficient for many Purposes . . .57 7. General Agreement, as used in the Western States . . 58 8. General Contract for Mechanic's Work . . . .59 9. Agreement for Purchase and Sale of Land, in Use in the Mid- dle States . . 59 10. Agreement for Sale of Land, in Use in the Western States . 60 11. Agreement for Warranty Deed, used in the Western States . 62 12. Contract to convey Real Estate, in Use in the Middle States . 63 13. Agreement for the Purchase of an Estate, in Use in New Eng- land : 64 14. Agreement for the Sale of an Estate by Private Contract . 67 15. Agreement to be signed by an Auctioneer, after a Sale by Auction 68 16. Agreement to be signed by the Purchaser, after a Sale by Auction . . 68 17. Agreement to make an Assignment of a Lease . . .69 18. Agreement for making a Quantity of Manufactured Articles . 69 19. Agreement between a Trader and a Bookkeeper . . .70 20. Agreement for Damages in laying out or altering Road . . 70 21. Agreement between a Person who is retiring from the Active Part of a Business, and Another who is to conduct the same for their Mutual Benefit 71 CONTENTS. V PAGE Form 22. Brief Building Contract . . . . . . .73 23. Full and Minute Building Contract 74 24. Specification to be annexed to the Building Contract . .78 CHAPTER VH. CONSIDEKATION. Section I. - - The Need of a Consideration 90 II. What is a Sufficient Consideration . * . . .91 III. - - Illegal Consideration ....... 93 IV. Impossible Consideration . . . . . . . 94 V. Failure of Consideration . 94 CHAPTER VHI. BONDS. Essentials of a Bond 97 " Condition" of the Bond 98 Forms. Form 25. Simple Bond, without Condition . . . . .99 26. Bond for Payment of Money, with a Condition to that Effect, with Power of Attorney to confess Judgment annexed . 99 27. Bond for Conveyance of a Parcel of Land . . . .100 28. Bond for a Deed of Land, with Acknowledgment before Nota- ry Public 101 29. Bond in Another Form, for Conveyance of Land, with Ac- knowledgment ........ 102 30. Bond to Corporation for Payment of Money dtie for Contribu- tion to Capital Stock, with Power of Attorney to confess Judgment . . . . . . . . 103 CHAPTER IX. ASSIGNMENTS. Instruments to which the term is particularly given .... 106 71 CONTENTS Forms. PAGE Form 31. Brief Form of an Assignment to be indorsed on a Note, or any Similar Promise or Agreement . . . .106 32. General Assignment, with Power of Attorney . . . 106 33. Assignment of a Bond ....... 107 34. Assignment of a Bond, with Power of Attorney, and a Cove- nant 107 35. Assignment of a Judgment, in the Form of an Indenture . 108 36. Assignment of Wages, with Power of Attorney . . . 109 CHAPTER X. SALES OF PERSONAL PROPERTY. Section I. What constitutes a Sale 110 II. Delivery and its Incidents 115 HE. Contracts Void for Illegality or Fraud .... 120 IV. Sales with Warranty 122 Forms. Form 37. Bill of Sale of Personal Property 125 38. Bill of Sale of Personal Property, with a Condition to make it a Mortgage with Power of Sale . . . . . 125 Section V. The Sale of One's Business 127 CHAPTER XI. STOPPAGE IN TRANSITU. Derivation and Meaning of the Term ........ 128 Rights of Parties in Goods in Transitu 129 CHAPTER XH. GUARANTY. Forms. Form 39. Guaranty to be indorsed on Note 134 40. Guaranty of a Note on Separate Paper .... 134 41. Guaranty in Another Way 134 CONTENTS. VH PACK Form 42. Letter of Guaranty 134 43. Guaranty with Collaterals, authorizing Sale .... 135 44. Guaranty with Collaterals, promising Additional Security or authorizing Sale 135 CHAPTER THE STATUTE OF FRAUDS. Section I. Its Purpose and General Provisions 136 II. Promise to pay the Debt of Another 137 III. Agreement not to be performed within a Year . . .139 IV. The Form and Subject-Matter of Agreement . . . 139 CHAPTER XIV. PAYMENT AND TENDER. Sectio t I. How Payment may be made . ..... 141 II. Appropriation of Payment ...... 142 i CHAPTER XV. RECEIPTS AND RELEASES. Renw ks on the Nature of Receipts, and Degrees of Fulness thereof . . 144 Forms. For 45. Receipt for Money 16. Another Form of Receipt for Money .... 17. Receipt for Papers or other Articles .... 48. General Release 49. Mutual General Release by Indenture 50. Release from Creditors to a Debtor, under a Composition 51. Release of all Legacies ...... 52. Release of a Bond, it being lost .... 53. Release of a Judgment 54. Release of a Condition 55. Release of a Covenant contained in an Indenture of Lease 56. Release in Extinguishment of a Power . . Yin CONTENTS. PAOB Form 57. Release from a Lessor to a Lessee (upon his sunendering his Lease) from the Covenants therein 150 58. General Release of Dower ...... 151 59. Release of Dower to the Heir 151 60. Release of Dower in Consideration of an Annuity given by Will 152 61. Release of Dower when the Husband of the Widow joins in the Deed 153 62. Release of a Trust . . 153 63. Release of Right to Lands 154 64. Release between two Traders in settling Accounts . .155 CHAPTER XVI. NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS, AND CHECKS. Section I. The Purpose of, and the Parties to, such Papers . . 156 Forms. Form 65. Common Form of a Bill of Exchange .... 157 66. Common Form of a Promissory Note . . . . .158 Section IE. What is Essential to a Negotiable Note or Bill . . . 159 Forms. Form 67. Form of a Note given for a Chattel sold, with a Condition pre- serving the Ownership of the Seller. .... 161 Section III. Consideration of Negotiable Paper ..... 168 IV. Rights and Duties of the Maker 170 V. Rights and Duties of the Holder of Negotiable Paper . 171 VI. Rights and Duties of the Indorser . . . . .183 VII. Rights and Duties of the Acceptor . . . . .187 VHI. Acceptance or Payment for Honor . .... 188 Forms. i Form 68. Judgment Note, with Waiver 189 69. Judgment Note, with Waiver and Power of Attorney . . 190 70. Judgment Note, with Fuller Waiver and Power of Attorney . 191 CONTENTS. H CHAPTER XVTL AGENCY. PAGX Section I. Agency in General 192 II. How Authority may be given to an Agent . . . .194 IH. Extent and Duration of Authority 197 IV. Execution of Authority 199 V. Liability of an Agent 200 VI. Rights of Action growing out of Agency .... 200 VII. How a Principal is affected by the Acts of his Agent . .201 VHI. Mutual Rights and Duties of Principal and Agent . . 202 IX. Factors and Brokers ....... 205 forms. Form 71. Power of Attorney 208 72. Power of Substitution 209 73. Power of Attorney in a Shorter Form . . . .209 74. Full Power of Attorney to demand and recover Debts . .210 75. Power of Attorney to sell and deliver Chattels . . .211 76. Power of Attorney given by Seller to Buyer . . . 211 77. Power of Attorney to sell Shares of Stock, with Appointment by Attorney of Substitute ...... 212 78. Power of Attorney to subscribe for Stock .... 212 79. Proxy or Power of Attorney to vote . . , . .212 80. Proxy Revoking all Previous Proxies . . . .213 81. Proxy with Affidavit of Ownership, in Use in New York . 213 82. Power to receive Dividend . . 214 CHAPTER XVHI. PARTNERSHIP. Section I. What a Partnership is ....... 214 II. How a Partnership may be formed 215 III. How a Partnership may be dissolved 217 FV. Property of the Partnership 219 V. Authority of each Partner, and the Joint Liability of the Partnership 220 X CONTENTS. PAGE Section VI. Remedies of Partners against each other . . . . 224 VII. Right of the Firm against Third Parties . . . .226 YTTT. Rights of Creditors in Respect to Funds .... 227 IX. Effects of Dissolution 229 X. Limited Partnership 230 Forms. Form 83. Articles of Copartnership between two Tradesmen . . 231 84. Short Form of Articles of Copartnership . . . . 234 85. Certificate of a Limited Partnership, with Acknowledgment and Oath 235 CHAPTER XIX. ARBITRATION. Section I. The Submission and Award 236 IE. Revocation of a Submission to Arbitrators .... 240 Forms. Form 86. Simple Agreement to Refer ...... 242 87. Arbitration Bond. One or more Arbitrators . . . 242 88. Award of Arbitrators 243 CHAPTER XX. THE CARRIAGE OF GOODS AND PASSENGERS. Section I. A Private Carrier 244 II. The Common Carrier 245 HI. Obligation of Common Carrier to receive and carry Goods and Passengers 248 IV. The Lien of the Common Carrier 252 V. Liability of the Common Carrier 252 VI. The Carrier of Passengers 254 VII. Notice by the Carrier respecting his Liability . . . 255 VIII. The Carrier's Liability for Goods carried by Passengers . 257 Forms. t Form 89. Steam Packet Company's Receipt 260 90. Express Company's Receipt . . . . . .261 CONTENTS. n CHAPTER XXI. LIMITATIONS. PAGE Section I. Statute of Limitations . ... . . . 263 II. Construction of the Statute ...... 264 III. The New Promise ........ 264 IV. Part Payment ........ 265 V. Some Statutory Exceptions ...... 266 VI. When the Period of Limitation begins .... 267 VII The Statute does not affect Collateral Security . . . 268 CHAPTER INTEKEST AND USUKY. Section I. What Interest is, and When it is Due .... 269 H. Charge for Risk or for Service . . '. 273 III. Sale of Notes ........ 274 IV. Compound Interest . ..... . 276 Abstract of the Usury Laws of the States ...... 277 CHAPTER BANKRUPTCY. Voluntary Bankruptcy ; Commencement of Proceedings. . . . 281 Assignments and Assignees ........ 282 Distribution of the Bankrupt's Estate ....... 287 Bankrupt's Discharge, and its Effect ....... 289 Preferences and Fraudulent Conveyances declared Void .... 292 Involuntary Bankruptcy ......... 294 Superseding the Bankrupt Proceedings by Arrangement .... 295 Amendatory Act of 1868 ......... 297 Rules in Bankruptcy . ..... .... 298 CHAPTER XXIV. THE LAW OF PLACE. Section I. What is meant by the Law of Place ..... 305 II. General Principles of the Law of Place .... 305 HI. Place of the Contract ....... 307 IV. Domicil 308 XH CONTENTS. CHAPTER XXV. THE LAW OF SHIPPING. FAOB Section I. Ownership and Transfer of Ships . . . . .311 II. Transfer of Property in a Ship 314 HI. Part-Owners 316 IV. Liability of Mortgagees 318 V. Contract of Bottomry ....... 318 VI. Employment of a Ship by the Owner .... 320 VII. Charter Parties 327 VUL General Average ........ 331 IX. Salvage . 335 X. Navigation of the Ship 338 XI. Seamen . . . . . . . . 342 Forms. Form 91. Bill of Sale of Vessel 347 92. Mortgage of a Vessel . . . . . . . 349 93. Charter Party . 351 94. Bill of Lading 353 95. Shipping Articles in Common Use 353 96. Bottomry Bond 356 97. Oath or Affirmation of Consignee or Agent . . . 357 98. Custom-House Power of Attorney, No. 201 ... 352 99. Maritime Protest . . 360 100. Steamboat Warrant, as used in the Western States . . 361 CHAPTER XXVL MARINE INSURANCE. Section I. How the Contract of Insurance is made .... 362 II. Interest of the Insured 365 HI. Interest which may be insured 367 IV. Prior Insurance . . . . . . 370 V. Double Insurance and Re-insurance ..... 371 VI. Memorandum . . . . . . . .371 "VH. Express Warranties 372 VIII. Implied Warranties 373 IX. Representation and Concealment 375 CONTENTS. XIII PAGE &- ion X. What things should be communicated .... 376 XI. Premium 377 XII. Description of the Property Insured .... 378 XIII. Perils covered by the Policy 379 XIV. Perils of the Sea 381 XV. Collision 381 XVI. Fire 382 XVII. Piracy, Robbery, or Theft 382 XVIII. Barratry 383 XIX. Capture, Arrest, and Detention ..... 383 XX. General Clause 384 XXL Prohibited Trade 384 XXII. Deviation 385 XXIII. Termini of the Voyage, and of the Risk . . . .387 XXIV. Total Loss and Abandonment . . . . . . 389 Farm. Form 101. Abandonment .... 892 Section XXV. General Average ....... 395 XXVI. Partial Loss 396 CHAPTER XXVH. FIRE INSURANCE. Section I. Usual Subject and Form of the Insurance .... 398 II. Construction of Policies against Fire .... 401 HI. Interest of the Insured ....... 407 IV. Double Insurance ....'... 409 V. Warranty and Representation ...... 410 VI. Risk incurred by the Insured . . . . . .413 VII. Valuation . 415 VIII. Alienation 416 IX. Notice and Proof ........ 417 X. Adjustment and Loss . . . . . .418 Forms. Form 102. Immediate Notice of Loss 419 103. Notice, with Certificate of Magistrate .... 420 104. Assignment of a Policy to be indorsed thereon . . . 421 105. Transfer and Assignment of Policy 422 HT CONTENTS. CHAPTER XXVHL LIFE INSURANCE. PAGB Section I. Purpose and Method of Life Insurance .... 423 H. Premium 424 ITT. Restrictions and Exceptions in Life Policies . . . 425 IV. Interest of the Insured ....... 427 V. Assignment of a Life Policy ...... 427 VI. Warranty, Representation, and Concealment . . . 428 VII. Insurance against Accident, Disease, and Dishonesty of Servants 432 CHAPTER XXIX. DEEDS CONVEYING LAND. Section I. What is Essential to such Deeds 433 LT. Usual Clauses in Deeds 438 Forms. Form 106. Deed Poll of Warranty, in Common Use in New England , 107. Deed of Gift by Indenture, without any Warranty whatever , 108. Deed of Bargain and Sale, without any Warranty 109. Quit-Claim Deed, without any Warranty .... 110. Deed Poll of Release and Conveyance; short Form . 111. Deed, with Special Warranty against the Grantor only 112. Quit-Claim Deed (long Form), Homestead Waiver 113. Deed, with Covenant against Grantor, without Release of Homestead or Dower ....... 452 114. Separate Relinquishment of Homestead and Dower in Land sold under Execution ....... 453 115. Full Warranty Deed, by Indenture, without Release of Homestead or Dower ....... 455 116. Warranty Deed (short Form), with release of Homestead and Dower . . . . . . . . 456 117. Warranty Deed, with Covenant against Nuisances, without Release of Homestead or Dower 458 118. Bond for a Deed . 460 119. Contract for Sale of Land, with Penal Obligation . . 461 CONTENTS. XV PAGB Form 120. Power of Attorney to sell Lands 462 121. Trust Deed for the Benefit of a Wife, or some other Person 463 122. Trust Deed to secure Payment of a Note, without Release of Homestead or Dower ...... 464 123. Deed of Trust to secure a Debt (fuller Form), and with Release of Dower ....... 466 124. Trust Deed to secure a Note (shorter Form), but with War- ranty, and Release of Homestead and Dower . . . 469 125. Deed from Trustees 471 126. Deed of Master in Chancery 473 127. Sheriff's Deed on Execution, in Use in the Western States . 474 128. Sheriff's Deed, in Use in New England . . . .475 129. Sheriff's Tax Deed, in Use hi the Western States . . 476 130. Deed of Executor, in Use in the Eastern States. . .478 131. Deed of Executor, in Use in the Middle States . . . 479 132. Deed of Administrator of Intestate 481 133. Deed Poll of Guardian of a Minor 483 134. Deed of Referee on Foreclosure, in Use in the Middle States 484 135. Deed of Collector of Taxes 486 136. Deed of Assignee, in Use in the Western States . . 487 137. Acknowledgment of Grantor and Wife identified before Commissioner for another State ... . 489 CHAPTER XXX. MORTGAGES OF LAND. Purpose of a Mortgage 490 Rights of Mortgagor and Mortgagee 491 Forms. Form 138. Promissory Note, to be secured by Mortgage . . . 493 139. Bond, to be secured by a Mortgage ..... 493 140. Mortgage, without Power of Sale and without Warranty, but with Release of Homestead and Dower . . . 494 141. Mortgage, with Power of Sale, to secure a Bond, without Release of Dower . . . . . . . 495 142. Mortgage to secure a Debt, with Power of Sale; short Form 497 143. Mortgage to secure a Debt (fuller Form), with Power of Sale 498 XVI CONTENTS. PAOB Form 144. Deed Poll of Mortgage, with Power to sell, and Insurance , Clause, and Release of Homestead and Dower . . 499 145. Mortgage by Indenture, with Power of Sale, and Interest and Insurance Clause, to secure a Bond . . . 501 146. Mortgage to Executors, with Power of Sale . . . 504 147. Mortgage of a Lease 506 148. Mortgagee's Deed, under a Power of Sale. . . . 508 149. Assignment of Mortgage ; short Form .... 509 150. Assignment of Mortgage, with Power of Attorney . . 510 151. Assignment of Mortgage by a Corporation . . . 511 152. Discharge of Mortgage ; short Form .... 512 153. Release and Quitclaim of Mortgage, as used in the Western States 512 154. Discharge of Mortgage, as used in the Middle States . . 513 155. Discharge and Satisfaction of Mortgage by a Corporation . 514 156. Release of a Part of the Mortgaged Premise . . . 514 157. Deed Extending a Mortgage 516 CHAPTER XXXI. LEASES. Definition of the Term ......... 517 Rights and Obligations of the Parties . . . . . . .518 Fixtures 520 Formt. Form 158. Short Form of a Lease 521 159. Fuller Form, with a Provision for Abatement of Rent. . 522 160. Short Form of Lease, in Use in the Western States . . 524 161. Lease of City Property, in Use in Chicago . . . 525 162. Lease, with Provisions for Taxes and Assessments . . 527 163. Lease, with Covenants about Water Rates, and Injury by Fire, in Use in New York 529 164. Lease by Grant, in Use in the Western States . . . 530 165. Lease by Certificate, with Surety 532 166. Lease of City Property, in Use in St. Louis . . . 535 167. What is Called a Country Lease, in Use in the Western States 534 168. A Ground Lease . 536 CONTEXTS. XVII PAGE Form 1G9. Assignment of Lease, and Ground Rent .... 539 170. Lease containing Chattel Mortgage Covenants, to secure Rent 540 171. A Building Lease . ....... 54-4 172. A Mining Lease 545 173. Lease of Land supposed to contain Oil, Salt, or other Minerals. 546 174. Assignment of a Lease 547 175. Landlord's Notice to quit for Non-Payment of Rent; short Form . . .548 176. Landlord's Notice to quit for Non-Payment of Rent ; another Form 548 177. Landlord's Notice to pay Rent due, or quit . . . 549 178. Landlord's Notice to leave at End of Term . . . 549 179. Landlord's Notice to determine a Tenancy at Will . . 550 180. Receipt for Rent, in Use in New York .... 550 CHAPTER XXXII. MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL PROPERTY. The Pledge of Personal Property 551 Forms. Form 181. Mortgage of Personal Property 553 182. Mortgage of Personal Property, with Warranty . . . 554 183. Mortgage of Personal Property, with Power of Sale . . 555 184. Mortgage of Personal Property, with Power of Sale ; another Form 556 CHAPTER XXXILL LAW OF PATENTS. What may be Patented 558 Who is entitled to a Patent 558 What will prevent the Granting of a Patent . . . . . .558 Mode of Proceeding to obtain a Patent 559 Forms. Form 185. Form of Petition 559 186. Specification to accompany a Petition .... 5GO 187. Form of Oath . . 5o2 2 XVin CONTENTS. PAGE Drawings ........... 562 Model 563 Completion of the Application 564 Examination 564 Protests 565 Withdrawals 565 Retaining Patents in the Secret Archives 565 Appeals ............ 565 Form 188. Appeal to the Examiner-in-chief 566 Interferences ........... 568 Re-issues ............ 569 Form 189. Surrender of a Patent for Re-issue . . . .570 190. Oath to be appended to Application for Re-issue . .571 Disclaimers ........... 571 Form 191. Disclaimer by an Assignee 571 Extensions 572 Designs 574 Form 192. Application for Patents of Designs . . . . 575 193. Specifications for Designs 576 194. Form of Oath .. . 576 Foreign Patents 576 Caveats 577 Form 195. Form of a Caveat 578 Repayment of Money ......... 579 Assignments and Grants . . . . . . . . .579 Form 196. Assignment of the Entire Interest in Letters-Patent be- fore obtaining the same, and to be recorded preparatory thereto ... 580 197. Grant of a Partial Right in a Patent . . . .580 The Office Fees, and how Payable . 581 Taking and transmitting Testimony . . . . . . . 583 Form 198. Magistrate's Certificate 584 199. Form in Taking of Depositions 585 Filing and Preservation of Papers ....... 586 Amendments ........... 586 Form 200. Amendment of Specification 587 References ' . 588 Giving or withholding Information ....... 588 Rules of Correspondence 590 CONTENTS. XIX CHAPTER XXXIV. LAW OF COPYRIGHT. PAGE Section I. What may be the Subject of Copyright .... 591 II. How Copyrights are to be obtained ..... 502 III. Punishment for Infringement of Copyright .... 594 Forms. Form 201. Agreement between Author and Publisher ; short Form . 506 202. Agreement between Author and Publisher ; fuller Form . 506 203. Assignment of a Copyright ...... 598 CHAPTER XXXV. MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF DEBTS. 1. Arrest and Imprisonment ........ 599 2. Trustee Process ' 599 3. The Homestead COO CHAPTER XXXVI. LIENS OF MECHANICS AND MATERIAL MEN FOR THEIR WAGES AND MATERIALS. What is a Lien 601 Forms. Form 204. Notice under Mechanic's Lien Law 603 205. Bill of Particulars of Mechanic's Claim .... 604 206. Release and Discharge of a Mechanic's Lien . . . 604 207. Release and Discharge of a Mechanic's Lien; another Form 605 CHAPTER xxxyn. PENSIONS. Instructions 606 Army Pensions . 608 Navy Pensions 610 Act of July 14, 1862 611 XX CONTENTS. PACK Act of July 4, 1864 611 Act of June 6, 1866 614 Act of July 25, 1866 620 Act of July 27, 1868 . . .622 Forms. Form 208. Declaration for an Invalid Pension 625 209. Declaration for obtaining a Widow's Army- Pension . . 626 210. Declaration for Minor Children in order to obtain Army- Pensions 627 211. Declaration for Mother's or Father's Application for Army- Pension 628 212. Declaration of Orphan Brothers or Sisters for Army-Pension 629 213. Declaration for the Increase of an Invalid Pension . . 630 214. Declaration of the Guardian of a Minor Child . . .631 215. Widow's Declaration for an Increase of Pension . . 632 216. Guardian's Declaration for Increase of Pension . . . 633 217. Declaration for Widow's Pension and Increase . . . 634 218. Declaration for Restoration to the Rolls . . . .636 219. Declaration for Arrears of Pensions 637 220. Declaration for Increase of Pension 638 221. Surgeon's Affidavit. Navy Claims 638 Guardian's Claims under Section 4, Act of July 27, 1868 . . . 639 CHAPTER XXXVm. THE DISPOSAL OF PROPERTY BY WILL. Section I. Wills 640 II. Codicils 643 HI. Revocation of Wills 643 Form 222. A Will . . . . . . . .644 CHAPTER XXXIX. EXECUTORS AND ADMINISTRATORS. Forms. Form 223. Petition to be appointed Executor, without further Notice . 648 224. Executor's Bond. . 649 CONTENTS. XXI PAGE 225. Bond of Executor, who is also Residuary Legatee . . 050 226. Administrator's Bond G50 227. Administrator's Petition for leave to sell a Part of the Real Estate 651 228. Administrator's Petition for leave to sell the Whole of the Real Estate 652 229. Bond of Administrator licensed to sell Real Estate' . . 653 230. Account of Executor . 654 CHAPTER XL. GUARDIANS. The rights and duties, powers and liabilities, of Guardians . . . 655 CHAPTER XLI. STAMP ACT. Schedule of Stamps required on different Instruments .... 657 Remarks on Stamp Duties . . 663 NOTE. MY first chapter will state the purpose for which I have made this book, and the use I hope it will perform. I first attempted to make such a book, compiling it from the law-books I had already made for the profession; and, adding a few Forms, published it in 1857 as " The Laws of Business for Business-Men, in all the States of the Union." I became satisfied that this book was open to three important objections. One, that it contained very much of argu- ment, and the consideration of minute questions, which were out of place in a book intended not for the profession, but for the community. Another objection was, that very many more Forms were necessary to make the book as useful as it might be. The third objection was, that as that book was entirely compiled from my other books, and contained no topic not embraced in them, it did not cover all the ground that the public had a right to expect that a book of this kind would occupy. I proposed, from time to time, to make a new edition of this work, and, indeed, made a beginning of this ; but I became satisfied that this would not sufBce, and that nothing would suffice but A NEW BOOK. This I have now made, and offer it to the community. I hare retained in this book a part of the title, and so much of the text, of the former work as I thought would be useful ; rewriting it with such changes as might make it more easily understood, and more useful. I have added many chapters on new topics ; and I have multiplied the Forms tenfold. Of these Forms some are entirely new, composed by me for this book ; others are selected with great care, from the widest collection I could make of Forms sanctioned by use in various parts of the country. In these I have made changes and additions, with directions for use. Some of these Forms will be found brief and simple ; others of them, especially those in relation to real estate, are full and minute. No one but a lawyer knows how necessary it is to use the technical, customary, and established language of Forms, every phrase of which has been through repeated liti- gation, and has thus acquired a certain meaning. Much in such Forms will seem, to those ignorant of law, to be wordy and with much repetition ; but, if the Forms are made appar- ently more simple by omissions and abbreviations, they may be good, and they may not: and whether they are or not cannot be known except by litigation. And he must be a bold lawyer who would undertake to prefer Forms of his own make to those which the Courts and common use have sanctioned. This I have not done, because the very object of this book is to enable persons who use it to conduct their business-affairs with ease, safety, and certainty. I think such a book possible, and I venture to hope that I have made such a book. I know only that whatever labor and care could do to make the book useful and safe lias been done. I have not made my law-books with the efforts which each required, and then cast off this book for more general use, lightly ; for in nothing that I have pub- lished have I labored more strenuously to make my work satisfy the just requirements of those to whom it is offered. THEOriULUS PARSONS. THE LAWS OF BUSINESS. CHAPTER I. THE IMJIiPOSIE AJXI> USE OF 1 THIS HOOK. THE title of this work indicates, to some extent, its purpose and character ; but, as they are in certain respects peculiar, it is thought that some remarks respecting them may make the volume more useful. Twenty years ago, after more than twenty-five years of practice at the bar, I accepted the office of Dane Professor in the Law School of Harvard University. I have employed whatever leisure the duties of that office have left me, in preparing a series of text-books on Commercial Law. I have published many volumes ; and the manner in which they have been received by my brethren, calls for my most grateful acknowledgments. One of those works was entitled " The Elements of Mercantile Law," and was intended as a general epitome of all Commercial Law. I began it mainly fur the use of lawyers, but at the same time hoping that it might be so written as to be useful to others who were not lawyers. Before I had made much progress in it, the hope that one book could answer these two purposes faded away ; and I finally made that work ex- clusively for lawyers. But the circumstance that many persons who were not lawyers, and did not intend to be, have bought my works, the remarks that have reached me in relation to them, and particu- larly in reference to that above mentioned, from such persons, and many other kindred facts, have given additional strength to a belief that has led me to prepare this volume, for wide and general use. That belief is, that there is a strong and growing disposition, 2 PUEPOSE A3TD USE OF THIS BOOK. among the men of business of this country, to understand the laws of business. This disposition, and the actual diffusion of this knowl- edge, have both greatly increased of late years, and I believe could not have been arrested ; for this progress is one element of advancing and improving civilization ; and I think it cannot now be prevented. The institutions and characteristics of this country have their bear- ing upon this question. "We have no sovereign but the law ; or rather the people is the sovereign, and the law is their only utterance. It is a sense of this that has here transferred, in some degree at least, the loyalty which in the kingdoms of the Old World attaches to a person, to the law itself, using this word in its most comprehensive sense. This is a good thing ; not because the law is always wise and good, but because it will more probably become wise and good, if the whole community recognize it as entitled to obedience, and there- fore entitled to their constant, earnest, and vigorous endeavors to cure its defects, and bring it into harmony with those principles of truth and justice of which it should be the expression. This great duty rests upon us with the stronger obligation because of our greater intelligence and activity of mind, or more general education and wider extent of common knowledge ; all which are none the less facts, although they are sometimes used as mere food for vanity, or as topics for adulation. And all these things together seem to lead to the conclusion, that here and now proper efforts should be made to supply all of the community who ask for it, with accurate and practical information concerning those laws which are of the most immediate concern to them. So far as concerns the whole people, their wish, if expressed in the simplest terms, would undoubtedly be, to know the laws which must regulate their conduct and determine their rights. This wish admits of but one question ; it is, How far is this thing practicable ? for so far as it is, its propriety and expediency can hardly be denied or doubted. Indeed, they who would most strenuously oppose any effort to teach the people the law, would do so only on the ground that it is impossible to give to the public any knowledge of this kind which would be wide enough and accurate enough for use. They would think that the very endeavor to learn the law, by persons the main business of vhose livrJ must be of a very different kind, would lead PURPOSE AXD USE OF THIS BOOK. 3 only to a superficial and erroneous view of the subject ; and this, under the name of knowledge, is only the most dangerous ignorance. We should, however, remember, that the people generally, here and elsewhere, must necessarily know a certain amount of law, for with- out this they cannot live safely in society. For example, men in business must know something of the most general laws of business ; as how to conduct their sales, how to make notes, how to collect them, and the like ; and all men must know so much of ordinary law as protects and defines their common and universal rights. Moreover, it will probably be admitted that important mistakes, leading to much loss and difficulty, are every day made, because many do not know those general principles or rules of law which some do know, and which every man in business might know. The question, therefore, can only be, how much of law it is possible and desirable for men in business to learn; and what is their best way of learning it. Here let mo remark, that few persons, who have not had occasion to study and to teach Commercial Law as a whole, are aware of that unity and harmony of its principles, which make it indeed a system of laws ; or of the prevailing simplicity and reasonableness of its rules. An eminent English lawyer has said, that it was astonishing within how small a space all the principles of commercial law may be compacted. It is equally true, that the laws of business are generally free from mere technicality and obscurity ; and the reason is, that they are for the most part, and substantially, nothing more than the actual practice of the business community, expressed in rules and maxims, and invested with the authority of law. The knowledge which a trader acquires of the laws of trade need not, at all events, be superficial ; for a knowledge of principles, and an intelligent appreciation of them, however limited it may be, should not be regarded as superficial. And these limits need not be narrow. The extent of this knowledge, and its accuracy, thorough- ness, and utility, must obviously depend upon the books from which it is acquired, and upon the manner of using those books. Considerations of this kind led me to the belief, that it was possi- ble to make a book, which should place within the apprehension of every intelligent trader, and of every young man who proposes to 4 PURPOSE AJSD USE OF THIS BOOK. engage in any department of business (and this now means almost every man in the community), at the cost of no more time than every one can conveniently give to it, a useful knowledge of all the elements, or general rules and principles, of the Laws of Business. In other words, I thought it an undeserved reproach of our Laws of Business, to say that they were not intelligible by all, if stated with simplicity and accuracy ; and an equally undeserved reproach of our Men of Business, to say that they could not comprehend laws, which were made for them, and were intelligible in themselves, and plainly stated. It seemed to me, therefore, that the time had come, in this country, for a book which no one has ever attempted to make anywhere heretofore. This book should contain all the principles of all the branches of the laws which regulate the common transac- tions of life, stated with all the accuracy that care and labor could insure in any book, and so stated that any man of good capacity, with reasonable effort, might understand all of them ; and might, with the help of the Index, find in the volume a true and intelligible answer to the questions which every day arise ; and might, if he were willing to make a regular study of the whole book in course, become acquainted with the rules, and the reasons of the rules, by which all business may be safely conducted. And this book I have endeavored to make. I have compiled it, mainly from the law- books I have already made for the profession. If they are accurate and trustworthy, this is so ; and I may be permitted to say, that whatever earnest endeavors could do to make those books trust- worthy was done ; and that accumulated testimony, which I have no right to disregard, encourages me to hope that I have not labored in this respect in vain. I have made changes which seemed to be required by the intended adaptation of this book to merchants and not to lawyers. These are, first, the omission of citations and references to reports and authorities ; next, the addition of some elementary rules and principles and definitions, which would not be necessary in a book for lawyers only ; and lastly, the use of common or non-professional language, the general omission of merely technical words, and the full explanation of such words when they are used. If there are those who are preparing for a life of business, or are BUSINESS LAW IN GENEKAL. 5 now engaged in it, who will study this volume, in course, dwelling on what seems most important, and examining with care what seems obscure, I venture to hope that they will find the work so ar- ranged, and the meaning so expressed, that what comes before explains what follows, and every part of it will be intelligible. At the same time, I have labored to make every thing plain l>y itself, as far as that was possible, that it might not disappoint those who, without reading it in course, look into it for an answer to questions as they arise. And for such persons I have endeavored to have the Index of Subjects (at the end of the book) exceedingly full and minute. I have added a great variety of Forms. Of course no collection of Forms could be made large enough to meet the exact facts of every case that can arise. But it is possible to give accurate Forms of all sorts ; and any person can select the Form nearest to his par- ticular need, and easily make the alterations which the facts of his E In RHODE ISLAND, there is a provision substantially like that in Massachusetts as to a ir..rried woman, coming into the State without her husband, and there living without him. Itcv. St. (1857), p. 314. Rents and profits of her real estate secured to her. Her chattels real, furniture, plate, jewels, shares in an incorporated company, money deposited in savings bank, or debts due to her and secured by mortgage, may be transferred by joint deed of husband and wife. All other personal estate she may dispose of as if un- married. Id. p. 316. Any married woman may dispose of her real estate by will, but not to deprive her husband of his tenancy by the curtesy. Id. 317. Acts and Res., January Session, 1856, p. 68. Her deposits in an institution for savings are her own property, id. p. 73. Any policy of insurance for her benefit, not exceeding the sum of $10,000, is hers independently of her husband, or the person effecting the insurance, or the creditors of either. Public Laws, 1860, p. 96. 36 MARRIED WOMEN. SOTJXH CAROLINA. In SOUTH CAROLINA, the real and personal property of a married woman, whether held by her at the time of the marriage, or accrued to her thereafter in any way, shall be her separate property, and not subject to levy or sale for her husband's debts. Statutes of 1870, No. 220. She may bequeath, devise, or convey her separate property, as if un- married; and, if she dies intestate, her property shall descend in the same manner as is provided for the property of husband. She may purchase any property, and contract in reference to it, as if unmarried. Id. id. Her husband is not liable for her debts con- tracted before marriage, nor for those contracted after, except for her necessary support. Id. id. A homestead of the value of $1,000 is exempt from execution. Stat. of 1868, No. 16, and also $500 worth of personal property. Stat. of 1870, No. 273. When the action concerns her separate property, she may sue and be sued alone. Stat. of 1870, Tit. 3. p. 451 ; and judgment may be entered against her separately, and execution be levied on her separate property. Id. p. 491 . TEINTVESSEE. In TENNESSEE, the wife may manage her own and her husband's property, when he is incapacitated, Code of Tenn. (1858), p. 488; and her property is not liable in such case for his debts. Id. id. Property acquired by her, subsequent to an abandonment by him, or separation from him, in consequence of ill usage, is not liable for his debts. If she live with him again, it is. P. 488. Marriage contracts are not good where more property is concerned than the portion actually received with the wife at the time of mar- riage; but subsequent legacies to her are considered as property received by her. P. 369. A feme covert may dispose by will of her own estate. Id. p. 488. A homestead of the value of $500 is exempted from execution, and shall not be aliened, if the owner be married, except by the joint deed of him and his wife. Id. p. 431. TEXAS. In TEXAS, the marriage of a female minor gives her all the right she would have if of age. Paschal's Digest of Texas Laws (1860), art. 4632. All property acquired by either party before marriage, or by gift, devise, or descent afterwards, is the separate property of each; but the husband has the management of the whole. Id. art. 4641. Property acquired by either during marriage, in other ways, is common ; the husband may dispose of it during coverture; if there are no children, the whole goes to the survivor, otherwise one-half. Id. art. 4642. The parties may be jointly sued for necessaries and for ex- MARRIED WOMEN. 37 penses benefiting the wife's separate estate. Id. art. 4643. Execution may be levied on common property, or her separate property, at the plaintiffs option. Id. art. 4644. Mar- riage-agreements must be made before a notary, and may be acknowledged by a minor with the parent's or guardian's consent, id. art. 4633, and are unalterable after marriage. Id. art. 4634. A reservation of property therein to be good must be recorded. Id. art. 46.35. Husband and wife may sue jointly and separately, for her effects. Id. 4636. The homestead, not exceeding fifty acres of land, and not exceeding five hundred dollars of improvements (or, if in a town or city, two thousand dollars in value), is exempt from execution. Const, of Texas, art. 7, 22. The wife acts jointly with her husband, when she is appointed executrix or administratrix. Id. art. 1234. The survivor takes the common property subject to its debts, nor is it necessary for her husband to administer on such property on her death ; as he has the same control of it then that he had in her lifetime. In case of his death, she has the same control, till she marries ; when it will be subject to administration. Id. art. 4647, 4652. Husband may fill antecedent contracts, and be compelled to give bonds for the proper management of the common property. Id. art. 4650. Her separate property is not chargeable with necessaries procured for him. Id. art. 4641, 4. The common property is liable for all debts contracted during mar- riage. Id. art. 4646. Either may by will give to the survivor the power to keep his and her separate property together, until each of the several heirs come of age ; and to manage and control it, subject to law and the provisions of the will. Id. art. 4653. VERMONT. In VERMONT, in case of desertion, the Supreme Court may authorize a wife of eighteen years of age, to convey her real estate, and the personal estate which came to her hus- band through her, if in the State and undisposed of by him; and require any one owing her husband money in her right to pay it to her; and the proceeds, and her own earn- ings, and those of her minor children shall be held by her for her own use. Laws of 1869, No. 13 ; and Gen. Stat. (1 863), p. 469. If the real estate of a wife be taken for pub- lic use, the damages are to be secured to her benefit. Id. p. 470. The wife of a man under guardianship may join with the guardian in making partition, &c. Id. p. 470. The wife of a man confined in the State prison is as a feme sole as to suits for causes arising after his sentence. Id. 471. Married women may devise by will their inheritable real estate. Id. 471. The rents, &c., of all her real estate, and her husband's interest in it, shall be exempt from attachment or execution for his sole debts, nor can he convey them without her. Id. 471. She may insure the life of her husband for her own use, if the premium do not exceed $300. Id. 472. The homestead, not exceeding $500 in value, exempt from sale on execution. Id. p. 456 ; Acts of 1851, No. 29. The earnings of a married woman and her deposits in Savings bank are not subject to trustee process by her husband. Gen. Stats, pp. 305 and 549. The annual product of her real estate is subject to the payment of necessaries for herself and family, and for .work and materials for their benefit. Stocks and bonds given to her by a parent are governed by the same law. Id. 47, 18. When abandoned by her husband, she may maintain an action in her own name, as if unmarried. Laws of Vermont, 1866, p. 43. All personal property, and rights of personal acquired 38 MARRIED WOMEN. during coverture, or by inheritance, or distribution, shall be held to her sole and separate use. Id. 1867, p. 29. VIROIISTA. In VIRGINIA, the husband of an insane wife may make a deed to bar her right of dower, on leave of court; but the same interest in the proceeds shall be secured to her. Code of Virginia, Tit. 36, c. 128, 11. If the husband die intestate, and without issue by her, she has the personal property which he had from or with her, and which he has not disposed of, if his other personal estate suffices to pay his debts. Id. Tit. 33, c. 123, 10. She can make no will except of her separate estate, or by a power of appointment. Id. Tit. 33, c. 122, 3. A homestead not exceeding 160 acres of land, including the buildings thereon, and not exceeding $1,200 in value. Acts of Assembly, 1867, ch. 139. In WEST VIBGINIA, the Code of Virginia remains in force in these respects. WISCONSIN. In WISCONSIN, the marriage of a feme sole executrix or administratrix extinguishes her authority. Rev. St. c. 67, 8 ; c. 68, 13, and of a female ward terminates the guar- dianship. Id. c. 80, 27. The husband holds his deceased wife's lands for life, unless she left by a former husband issue to whom the estate might descend. Id. c. 62, 30. Pro- visions exist by which powers may be given to married women, and regulating their exe- cution of them. Id. c. 58, 8, 15, 40, 44, 57. If husband and wife are impleaded, and the husband neglect to defend the rights of the wife, she, applying before judgment, may defend without him ; and if he lose her land by default, she may bring an action of eject- ment after his death. Id. c. 3, 3, 4. The real estate of females married before, and the real and personal property of those after, Feb. 21, 1850, remain their separate prop- erty. And any married woman may receive, but not from her husband, and hold any property as if unmarried. Laws of 1850, c. 44. She may insure the life of her husband, son, or any other person, for her own exclusive benefit, but the annual premium must not exceed $300. Laws of 1862, c. 182. A homestead of forty acres, used for agricultural purposes, or one-fourth of an acre within a recorded town plot, or city, or village, is ex- empt from sale on execution. Rev. St. c. 134, 23. Laws of 1863, ch. 88. Laws of 1864, ch. 270. It should be added, that the wife may everywhere even by com- mon law be the agent of the husband, and transact for him his business transactions, making, accepting, or indorsing bills or notes, purchasing goods, rendering bills, collecting money and receipting for it, and in general entering into any contract so as to bind him, if she has his authority to do so. And while they continue to live MAEKIED WOMEN. 39 together, the law considers the wife as clothed with authority by the husband to buy for him and his family all things necessary in kind and quantity for the proper support of his family ; and for such puz chases made by her, he is liable. The husband is responsible for necessaries supplied to his wife, if he does not supply them himself. And he continues so liable if he turns her out of his house, or otherwise separates himself from her, without good cause. But he is not so liable if she deserts him (unless on extreme provocation), or if he turns her away for good - -,ause. If she leaves him because he treats her so ill that she has good right to go from him and his house, this is the same thing as turn- ing her away ; and she carries with her his credit for all necessaries supplied to her. But what the misconduct must be to give this right, is uncertain. Some English cases are very severe on this point. In one, a husband brought a prostitute into his house, and confined his wife to her own room under pretence of her insanity. But the court held this to be insufficient. The Supreme Court of New York, in commenting upon this case, said that "the doctrine contained in it cannot be law in a Christian country." In America the law must be, and undoubtedly is, that the wife is not obliged to stay and endure cruelty or indecency. It may be added, that if a man lives with a woman as his wife, and represents her to be so, he is liable for necessaries supplied to her. and for her contracts, in the same way as if she were his wife ; and this even to one who knows that she is not his wife. The statutes of which we have given an abstract are intended to secure to a married woman all her rights. But in all parts of this country, women about to marry or their friends for them often wish to secure to them certain powers and rights, and to limit these in certain ways, or to make sure that their property is in safe anu skilful hands. This can only be done by conveying and transfer- ring the property to TRUSTEES ; that is, to certain persons to hold the same in trust. This is done by a legal instrument, which is almost always an Indenture; by which is meant an instrument under seal between two or more parties. This instrument must sec 40 MARRIED WOMEN. forth precisely, and with legal accuracy, just what the trust is ; that is to say, just what the trustees, or the woman, or her husband may do, and just what tlrey must do. This is one of those instru- ments which require peculiar care and exactness. We give as models, or forms, two, differing in their terms and purposes. Both were drawn by very skilful lawyers, and with such changes, of omission or addition or alteration, as the circumstances of any case or the wishes of the parties make necessary, will be useful and safe guides in the preparation of such instruments. An Indenture to put in Trust the Property of an Unmarried Woman. This Indenture of two parts, made and concluded this day of , A.D. eighteen hundred and , by and between of , singlewoman, of the first part, and , and , of , of the second part, Witnesseth, That the said party of the first part is seized and possessed of certain real and personal estate, to wit, one undivided moiety of the reversion in and of a messuage and land in , bounded as follows : a mortgage of a lot of land bounded on Street, and described in the deed of to , which is recorded in the Registry of Deeds, lib. , fol. ; a mortgage of a lot of land bounded on Street, and described in the deed of , recorded in the said Registry, lib. , fol. ; a mortgage of two lots of land bounded on Street, and described in the deed of to , re- corded in the said Registry, lib. , fol. ; a mortgage of a lot of land bounded on Street, and described in the deed of to recorded in the Registry aforesaid, lib. , fol. ; one hundred shares in the capital stock of the Bank in ; twenty-five shares in the capital stock of the Bank in ; and fifty shares in the capital stock of the Bank of ; also a note of hand signed by the said , for the sum of fifteen thousand dollars ; a note of hand signed by the said , for the sum of three thousand dollars ; a note of hand signed by and , for the sum of two thousand five hundred dol- lars ; a note of hand signed by , for the sum of six thousand dollars, which notes are severally secured by the lands and tenements, mortgaged as aforesaid ; also a note of hand signed by , for the sum of one thou- sand dollars. All which real and personal estate the said party of the first part is desirous that the party of the second part should have and hold in trust for certain uses MARRIED WOMEN. 41 and purposes hereinafter set forth and expressed ; and in conformity with said in- tention, and for the purpose of carrying the same into effect, the said party of the first part, in consideration of the sum of five dollars paid to her hy the party of the second part, the receipt of which she doth hereby acknowledge, and for divers other good considerations moving her thereto, hath given, granted, sold, and conveyed, and doth give, grant, bargain, sell, and convey, all the said lands, tene- ments, and real estate, and doth hereby bargain, sell, transfer, assign, and set over all the aforesaid chattels and personal estate, as the same are above specified and described, unto the snid and , and their heirs and as- signs. To have and to hold the said granted premises unto the said and , and their heirs and assigns, and to the survivor of them and his heirs and assigns forever to their own use, but in trust nevertheless for the purposes, objects, and intents hereinafter set forth and expressed, and for none other, namely: First, That the said trustees and their successors in the said trust shall permit the said party of the first part, without any hinderance or interference by them, so long as she shall remain sole and unmarried, and shall see fit so to do, to receive and take in her proper person, or by her agent or attorney, the rents, income, dividends, interest, and profits of the said trust estate, real and personal, without any accountability therefor, to them the said parties of the second part ; but if required by her, the said party of the first part, so to do, the said trustees and their successors shall collect and receive the said rents, income, and profits of the trust estate, and shall from time to tune pay over the same unto the said party of the first part for her own use. Secondly, That from and after the solemnization of the marriage of the said party of the first part, whenever that event may take place, the said trustees and their successors shall collect, take, and receive all the rents, income, and profits of the trust estate, real and personal, and shall from tune to time pay over the same to the said party of the first part, to and upon her separate order or receipt, made and signed by her, at or about the time of such payments respectively and for her proper use, free from the control or interference of any husband she may have. Thirdly, That at and after the decease of said party of the first part, the said trustees and their successors shall be seized and possessed of the said trust estate to and for the use of such person or persons as the said party of the first part, by any last will and testament, duly executed, if she die sole and unmarried, or, in case she be at her decease a married woman, by any paper writing signed by her in presence of two or more credible witnesses, shall order, and appoint to take, re- ceive, and hold the same, and in such shares and manner, and upon such terms and conditions, as she shall direct, order, and appoint as aforesaid ; and in case the said party of the first part shall omit to make any such will or testamentary appoint- ment, then the said trustees and their successors shall hold the trust estate to the use of such person or persons as by the laws of this Commonwealth would, in case the party of the first part had died seized and possessed of the then existing trust property in her own right, have been entitled to the same as heirs-at-law, or dis- 42 MAEEIED WOMEN. tributees ; provided always that in such case the husband of the said party of the first part, if she leave a husband, shall be entitled to his life estate in all the real estate, as if he were tenant by the curtesy in and of the same, and be subject to all the duties incident to a tenant by the curtesy. Fourthly, That the said trustees and their successors shall keep the said trust estate, real and personal, constantly invested hi the most safe and profitable man- ner in their power, but relying always on their discretion in this behalf, and shall accordingly have power to sell and dispose of any of the said trust estate, and to make and pass all necessary deeds and instruments of conveyance thereof, and to purchase any other estate, real or personal, and the same to sell again, and so from tune to time to change the property composing the trust fund and estate ; pro- vided always that all real and personal estate which may be purchased by them the said trustees with the trust moneys, or the proceeds of sale of the trust prop- erty, shall be conveyed and assigned to them and their successors as trustees as aforesaid, and shall be holden always upon the same trusts, and with the same pow- ers, and for the same purposes, as are set forth and declared in this indenture of and concerning the estate firstly above described and conveyed to the said trustees. Fifthly, That the said trustees or their successors, in case the said party of the first part shall so order and direct, shall invest the trust money or estate, or such part thereof as they shall be ordered as aforesaid, in the purchase of such house for the habitation and dwelling of the said /(arty of the first part as she may select, and shall lay out and expend such other part of the said trust money and estate as she, the said party, shall order and direct, in the purchase of such furniture, plate, horses, and equipages, as she may choose and select for her own use ; and shall permit her, the said party of the first part, with any husband she may have, to occupy and inhabit the said house, and to use and enjoy the said furniture, plate, carriages, and horses without impeachment of waste, and without any ac- countability to them the said trustees for the reasonable wear and use thereof, or injury by casualty ; and the trustees shall keep the said house and furniture insured against fire, and, in case of loss or injury by fire, shall lay out and expend the money which they may receive from the assurers, in the repairing or rebuilding of the said house, if so directed by the said party of the first part, and in the purchase of other and new furniture, plate, horses, and equipages in place of those which have been injured or destroyed by fire, and shall permit the said party of the first part to use and enjoy the same in manner aforesaid. And the said trustees and their successors shall, when required by the said party of the first part so to do, cell and dispose of any house which may have been purchased by them for the per- sonal occupation and habitation of the said party of the first part, and shall in manner aforesaid lay out the proceeds of sale of such house, and such other moneys as she shall direct, in the purchase of such other house as she shall select and direct them to purchase, and shall permit her to occupy the same in manner above set forth and expressed ; and they shall also, when directed by the said party of the first part, sell and dispose of any of the furniture and other chattels, so as afore- said, purchased by them for her use, and shall from time to tune lay out and ex MARRIED WOMEN. 43 pend the proceeds of such sales and such other suras of money as they shall be directed by the said party of the first part to do, in the purchase of such other furniture, plate, horses, and equipages as she shall select for her own use ; and shall permit her to use and enjoy the same in manner aforesaid : provided always that in case of any attempt by any person to sell or remove the said furniture or other chattels out of the personal care and custody of the party of the first part, without the consent of the trustees, they shall forthwith take possession thereof, and convert the chattels so attempted to be removed or sold, into money, and shall hold the said money upon the trusts and for the uses set forth in this indenture ; and in all the cases in which any order or direction shall be given by the said party of the first part it shall be in writing, and be signed by her in presence of one wit- ness at least. Sixthly, That in case of the decease of the said trustees, or either of them, others shall be nominated by the party of the first part (if she see fit so to do), to be appointed as trustees in the place of the deceased; and upon such nomination being made and notified to the surviving trustee, he shall forthwith, if such person be suitable, make and execute all such instruments in the law as shall be needful in the opinion of counsel, to associate such person in the said trust, and to transfer and convey to him the same interest in the trust estate, with the same powers over the same, and subject to the same duties, as are vested in and assumed by the parties of the second part in and by this instrument and the laws of the land. And in case either of the said trustees, the parties of the second part, or their suc- cessors, shall wish to resign said trust, they shall be at liberty to do so, first giving reasonable notice to the party of the first part, that she may find some suitable person, who shall be acceptable to the remaining trustee, to assume the said trust in place of the trustee resigning ; and the same proceedings shall then be had for the introduction and appointment of a new trustee as are above provided in case of the decease of a trustee ; and in case of the decease or resignation at any time of any of the persons who may be hereafter appointed trustees, in manner afore- said, similar proceedings shall be had for supplying the vacancy created by such decease or resignation. And the trust fund, property, and estate shall always be had and held by the persons' so appointed from time to time in trust for the uses and purposes set forth in this indenture, and none other. And all nominations made as aforesaid shall be in writing. Seventhly, That the purchasers of any estate, real or personal, which may be sold and conveyed by the trustees under this indenture, shall not be bound to see to the application of the purchase-money ; but the receipt and acquittance of the trustees shall be a full and adequate discharge to such purchasers for such pur- chase-money. Eighthly, That all the expenses and incidental charges of the trustees shall be deducted from the income of the trust property, as well as a reasonable allowance to the trustees for their own services. Ninthly, That the resignation of any trustee shall not be, nor be pleaded as, a bar to the chancery jurisdiction of the courts of the Commonwealth, in case a resort against such trustee to the said court shall be necessary. 5 44 MAEKIED WOMEN. TentJdy, Th SPECIFICATIONS OF MATERIALS. 81 Memo. Every wall and pier and wooden partition of basement story is (o be lime-whitewashed (three heavy coats by an experienced expert). Proper aque- ducts in brick are to be laid for Cochituate mains and metres, and for gas ditto ditto so far as the same may be required by superintendent to insure workmanlike construction for " entering " these matters from such points in the front yard of the block as the water and gas company bring same. The two north and south boundaries of the front yard and three boundaries of the rear yard, excepting across the rear end of Gloucester Place, are to be fully en- closed with 12 inch brick walls resting on the copings of the several bank- walls, above which level (taken to be the front-yard level of the block), said walls are to be ten feet high. Said Avails are to have in connection therewith buttresses of 8 by 16 inches each, from inside face of each wall ; and the walls and the buttresses are to be capped with granite coping of 2 inches more width than the buttresses and walls, 4 inches thickness at the edges, and 9 inches in centre, and to be straight and well tooled, and cramped on unuer side, each piece to the other all which cramps are to pass down into the walls and buttresses. Said coping is to be wholly set in cement, and the whole of the joints flushed with same material. All yard paving is to be wholly in cement, and grouted and bedded in same manner as cellar paving aforesaid. First Story. Brickwork. The four exterior walls of this story are each to be 12 inches thick, and the two main, cross, party, subdivision-walls to be of corresponding thickness with the outside walls. The two main corridor walls and those around stairways (three stairways) in this story are to be each 8 inches thick the entire length of the building, reaching fully in all cases to the top of flooring-planks of the second story. The twelve stacks of chimneys indicated on plans of this story are to be built in connection with and made part of the several walls, as shown. Said chimneys are to be commenced as floor-levels of the basement story, upon stOi...e-platform foundations to be made part of the other wall foundations, and built throughout said story with two piers of 20 by 20 inches each, to be covered with a semicircular arch tied with an iron beam bar, and the whole levelled up solid to first floor, with a flue in each chimney of 8 by 1 2 inches clear, square, and true, and plastered honorably over every square inch of inside surface, thick and heavy. No hearths or open fire-places are intended in chimneys. Water- closet flues, and the single flue of each room in which a chimney exists, is to be fitted with a 7 inch cast iron funnel-piece and stopper of heavy and durable make ; but no veutilating-flue is to be provided separate from the single smoke-flue of each apartment. All the said brickwork of the first story is to be laid in lime-mortar of first quality, Eastern stock, using sharp sea-sand only for same. All chimneys to have 8 inch backs and 4 inch withes. Second and Third Stories. The exterior walls are all to be continued 12 inches thick, and the chimneys built up in connection therewith in the same man ner as before described for first story, with an additional flue of the second and 82 AGREEMENT AND ASSENT. third stories. The two interior, cross, division-walls will be carried through both these stories, but need be only eight inches thick. The two enclosing walls of each of the two end stair-flights in both these stories are to be continued of brick, and of 8 inch thick each. The several window and door openings in all the walls of the three stories above the basement story are to be formed with reliable, arched heads on wooden lintels, and the exterior wall-windows to have full and square re- turns for window-frames. All frames are to be fitted in solid, and plastered in con- nection with brickwork. None of the walls are to be recessed beneath the windows. Every floor-plank is to be accurately levelled up, and the brickwork filled solid around it, and the roof-planks also at bottom. The fourth or French-roof story will have the four exterior walls built to top of plates of frame of roof, say 2 feet above its flooring ; and besides this the brickwork of the said four walls is to be continued up entirely to the roof-boarding under the gutter-flashing. The several corner quoins of the front side of the four corner pilasters of the side and the dentil course over the third-story windows of this side are ail to be formed of brick ; and all of them are to be made outside of the faces of the wall, thereby increasing hi thickness as much more than 12 inches as the several matters project. All chimneys are to be topped out, of one uniform height and one pattern ; and this pattern is to be precisely like the detailed drawing to be given. Memo. The enclosing walls of the two end staircases are to be carried to roof- boar Jing of 8 inches thickness each. Memo. The 9 nine cesspools hereinbefore referred to are to be 36 inches square in clear of walls ; which walls shall be 8 inches thick, with an 8 inch bottom to same, and a four inch cut-off wall -on iron bars, across the same. The whole inside to be rendered in hydraulic cement ; and the curb and iron-trap strainer aforesaid to be set complete. The whole of the drains and aqueducts are to be most thor- oughly rendered in hydraulic cement. The aqueducts may have 4 inch walls ; but all the remaining drains shall have 8 inch walls, and shall be Gothic shaped at bot- tom ; and the stone covering of said drains shall not be less than 2 inches thick, with full and square joints : the whole set in hydraulic cement. The walls of the drains shall be laid wholly in hydraulic cement. The contractor shall use all rea- sonable care that the grounds on which the drains, aqueducts and cesspools to be built, is properly prepared to prevent settlement or start of said works ; and, if the superintendent elects on account of the instability of the soil to substitute drain- pipe or plank drains for the brick ones hereinbefore stipulated, the contractor is to make the changes as directed ; and all such difference of cost (more or less) as the superintendent elects to be just, shall be accepted by said contractor, and settle- ment made accordingly. Turn arches over all openings between cellar-piers, and level up to floors. The bricks to be supplied by the contractor are to be as follows, in quality : those for backing exterior walls, and for all interior walls and chimneys, may be of the Boston Brick Co.'s most costly cull ; those for the drains and paving and other underground shall be Pilastow's Eastern or Charlestown clay brick, hand- made ; the outside courses of the two end-walls and of the rear wall and of the chimney-tops shall be of same hand-made, even-colored, darkened, hard brick of SPECIFICATIONS OP MATERIALS. 83 uniform size, straight and true, and jointed-laid ; the outside courses of the front wall shall be of a quality of face-brick as good and as fair a quality of Danvers face-brick, to be laid plumb-bond, and properly jointed off. All bricks shall be wet immediately previous to laying same. The contractor assumes all cost of supplying himself with Cochituate for use. The exterior cornices, brackets beneath, and small band mouldings beneath brackets, are all to be of wood, to be constructed and put up by carpenter ; but the mason is to build in all brackets, and assist carpenter to space off and lay out same. Slating. The two upright sides of the roof are to be covered with 16 inch slates, Welsh ; the whole to be of first quality, and agreeable to a sample which the superintendent will select, and submit to bidders before estimating. Said slates are to be put on with 2^ inch lap (full), and to be truly bonded, to break joints in centres to be put on with the heaviest quality of composition (not galvanized) nails. The chimney-tops; sides, tops, and sills of luthern windows; angle-corners of roof; top of upper wood-finish of roof; skylights ; scuttle ; scuttle over centre staircase, or near it; as also all other required places, are to be flashed with 10 oz. zinc and 4 Ib. lead where the superintendent calls for the same ; and the contractor for the slating is to be held responsible that furnishes and applies flashing-stock amply suffi- cient to insure an extra, first-class, tight, and permanent job, with every piece of stock cut and fitted and secured of such sizes and shapes as the superintendent, if he elects so to do, may direct. Memo. The slates of the front side of roof to have semicircular ends. Gutters and Conductors. The front and rear walls of the block, includ- ing the four heads or returns on the two ends of the block, are to be fitted with 20 oz., best-quality sheet-copper to be of cima recta pattern, and made exactly in ac- cordance with a full-size drawing to be given. This gutter is to be seated on to wood coving or casing of main cornice ; and there is to be a back flashing from the inner edge of said gutter, on its top, of same quality and 1 6 oz. weight of copper, passing up beneath slating 8 inches, and passing under sills of each luthern window, and up to inside face to its top, and there turned on and secured with all suitable bends and heads of copper on each side of the lutherns, as well as over their entire top-surface or roof. The sky light- hatches, and that of the scuttle in flat of main roof, must be covered with 16 oz. copper also, and the whole made everywhere tight and secure and workmanlike. There are to be eight conductors of cold and rolled copper, of 16 oz. to the foot, put up, and firmly secured to the outside faces of the four exterior walls. Said conductors are to be connected with the gutters above by massive goose-necks most substantially soldered and secured, and of prop- er diameter ; and the fifteen feet of said conductor, together with the shoes and un- derground lengths necessary for reaching and fully entering the aqueduct of brick, are to be made of the heaviest pattern of cast-iron, to be strongly connected with the four exterior walls, as to resist the most possible abuse that boy? can bring to bear on the said pipes. 84 AGREEMENT AND ASSENT. Plastering. The walls, ceilings, and partitions of each of the four finished stories of the building, throughout every apartment, passageway, stairway, corridor, and hall, and including all closets and water-closets, are to be lathed on wood fur- ring for five nailings, with sound, dry, pine-laths, free from sap and other defects, and secured with heavy 3d penny nails. The laths to be universally a full quarter of an inch apart. The ceilings of the cellar to be lathed for plastering throughout. Each floor of the four finished stories is to be plastered between upper and under with a heavy coat, ^ inch thick, of lime and hair mortar. All other plastering is to be done two coats, one of lime and hair mortar, and the second a skim coat of lime and sand putty. All other plastering is to be done two coats, one of lime and hair mortar, and the second a skim coat of lime and sand putty ; forming the first quality of two-coat work, as usually understood in best houses, as the walls are not to be papered. The ceilings and walls both are to be finished of entire uniform shade of plastering, without staging-streaks, or break-offs in any place. No cornices or centre-pieces are required. The contractor shall do the usual and fau- amount of patching after carpenters have finished, without charge to owner of the building. The risk of the plastering being touched by frost, if work of build- ing is delayed, rests with the plasterer wholly. Miscellaneous. Mason. In both parlor and kitchen of each tenement, there is to be a red slate-stone mantel, to be supported by two iron bronzed brackets of some neat pattern, the whole to be selected and approved by the superintendent. The mason is to include the paving of the whole area of the yard in front of the block up to the rear line of the contemplated front block of houses ; and said pav- ing is to be done in cement, like that hereinbefore required. Carpentry. The carpenter is to be equally responsible with the mason that all parts of the building are correctly laid out, from the several plans by the archi- tect ; and he is, in consultation with the superintendent and mason, to arrange all details and portions of construction in ample season for them all to be applied cor- rectly to the buildings. He is also at his own cost to prepare all centres, not only for windows and openings, but also for drains. He is also to make all necessary poles and rods as guides for laying out all works. He is to make skeleton frames, and set the same, for all openings in walls. He is to cover all freestone and granite projections, including doorways, and water-table of underpinning. He is to safely shore all floors, under all such points as the superintendent directs, while the skele- ton of the structure is in progress. He is to make one set of patterns from the full- size drawings of all freestone, moulded, and arch work. His works are to embrace all branches of trades hereinbefore stipulated under the head of work and labor and materials, it being understood that La connection with the contractor for the masonry, the buildings are to be left in a completed state, ready for occupancy, ex- cepting only metal-works of the plumbing. No furnaces, fireplaces, grates, stoves, or heating-apparatus of any kind, being intended to be required of the contractors, saving only chimneys, funnel pieces, and stoppers. SPECIFICATIONS OF MATERIALS. 85 No papering is to be required of contractors ; and no gas piping or fixtures is to be embraced in the estimates of contractors. Such of the water-closet ventilators as are required of wood are to be constructed and topped out, and otherwise fully put up and completed, precisely as superintendent says. Framing. To provide the first marketable quality of Eastern spruce stock, and frame, put on, and otherwise fully complete, the floors of the first, second, third, and fourth stories, with planks of 2 by 1 2 inches, to be placed as indicated by flooring-plans; spanning in all cases from the front and rear exterior walls on to the corridor-walls, which run through the centre of the length of the entire building. Each floor is to contain headers and trimmers of 4 by 12 inches wherever indi- cated by the plans, excepting those for enclosing staircases, which are, hi all the floors, to be 6 by 1 2 inches. The planks in all the floors over the centre corridor may be 2 by 9 inches only. The first floor will contain girders of 7 by 10 inches, to be located in the position indicated by the flooring-plan of that story. These girders are to be of the soundest white pine, of last year's growth, and last year's delivery in Boston, and not in water for the last six months at least. These gird- ers are to be worked square and true, and are to rest on the exterior walls and in- terior piers. Each flooring is to have four full rows of diagonal bridging of inch-board pieces 3 inches in width and 1 inch thick, to be accurately cut in, and nailed with twelvepennies. The whole of the flooring-planks are to rest just one full half- brick in length of bearing on walls, and four inches full on the corridor walls and partitions ; and the same of the headers and trimmers in each floor. All headers and trimmers are to be mortised and tenoned and oak-pinned, and those of the stairways are to have wrought-iron stirrup-straps of 2 by -| inch iron. The upper and under edges of every flooring-plank is to be worked by a plane to a regular crown of % of an inch in their length. There shall be twelve wrought-iron ties attached to the trimmers of each floor in the position the superintendent shall say ; and all these ties are to go to, and be " upset " in, the exterior walls to within 4 inches of the outer face of each wall. Each tie to be 3 feet long, of inch round iron, in addition to the length required for " upsetting " the two ends. The roof to be framed with its two upright, angular sides of plank 3 by 9 inches, to be placed only 18 inches apart on centres. Said planks are to be footed, and securely spiked to wall-plates of 8 by 10 inches; which plates are to be bedded on and bolted to the exterior walls by bolts being built in for the height of 5 feet in said walls once in every 15 feet length thereof. The tops of the aforesaid rafters are to be headed into a border-stick, which is to extend the entire length of the two sides of the block, and is to measure 5 by 9 inches ; being properly framed (not merely spiked) on to the rafters. This border-piece and the heads of the two main corridor-partitions are to form supports for the two ends of the planks designed to form the top or flat portion of the roof. Said planks are to be fully 3 by 12 inches, to be placed only 8 inches apart on centres, and bridged precisely like the floors aforesaid by with one row only on each side of the corridor-partitions. The roof- stock is all to be as dry and as perfect as that for the floors aforesaid ; and the up- 86 AGREEMENT AND ASSENT per edges on outer edges of all the planks are to be worked true with plane, and those in the flat to be crowned regular 1 inch in their length. Every part of the framing of floors and roof is to be so mortised, tenoned, spiked, nailed, stayed, and otherwise finished and secured, as to make, np'j only a first-class, workmanlike job, but one to be warranted free from start or tremble, and permanently so to remain. On each side of each luthern window, there is to be a stud of 3 by 6 inches, with a head-piece of same size at top of window ; and these six studs are designed to go perpendicularly down to the top of the roof-story flooring, just down the exte- rior walls, and there to foot on a plank which is to run the whole length of the building; which plank, as well as the side-studs and head-piece, are all to be firmly spiked and secured. Purring and Partitions. The brick walls, ceilings, and stairway through- out the four finished stories, are to be furred with 3 by 1 inch dry spruce furrings, set to give five nailings to a lath. They are to be put on the walls with twelvepenny nails, and on the ceilings with tenpennies. Grounds ^ of an inch thick are to be put up for all finish, and % inch beads for the angles of the walls and stairways. The partitions, except those which are brick, are to be framed with sound, sea- soned spruce lumber ; the studs to be 2 by 4 inches ; door studs and girths, and window studs and girths, 3 by 4 inches ; plates 3 by 4 ; and sills 2 by 4 inches : all to be thoroughly bridged with cross bridging, and to be braced over the doors and windows. All of the above work is to be done in the most thorough manner, and, when ready for the plastering, is to be plumb, square, and straight. Memo. The caps and sills of every partition in every story are to be seasoned Southern pine, properly fitted and secured. Tinning. The dormer-window roofs, and the upper portion or flat of the main roof, are to be covered with best quality of charcoal-leaded, of first quality MP brand roofing-tin ; to be laid, lapped, soldered, and secured in the most thorough manner, and warranted a first-class and permanently-tight job throughout. Hough Boarding. The roofs are to be boarded, and the under-floors to be laid with sound, seasoned white-pine boards, matched and mill-planed ; laid close, and thoroughly nailed ; and those to the slated portion of the roof are to be cov- ered with the best quality of tarred sheathing-paper. Outside Finish. The dormer-windows, cornices, brackets, and small band- mouldings beneath them, are to be wrought of thoroughly-seasoned, clear, white- pine stock, in the forms shown by the drawings ; and they are to be thoroughly secured to the brickwork where they come hi contact with it. The doorway is to be framed with 2 by 4 inch studs, and 2 by 6 inch rafters, and is to be boarded with matched and mill-planed pine covering-boards, and cov- ered with tin, like the roof. It is to have a rebated plank door-jamb, 4 inch out SPECIFICATIONS OF MATEEIALS. 87 eid-.' and irisiJo casings, and a white-pine door with four plain panels. The door is to be */ Inchfcs thick, hung with stout, loose butt-hinges, and fitted with a good lock, inside bolts, and neat and durable trimmings. Windows. All the windows inside and out, excepting those in the cellar, are to have box-frames with' 2 inch sills and yokes, and 1 inch inside, outside, and back casings ; and staff-beads of white pine for those in the brick walls ; but no back cas- ings or staff-beads for those in the wooden partitions. They are to have 1 inch pulley-stiles, inch inside, and | inch parting beads of hard pine. Each of the above windows is to be fitted with two If inch white-pine sashes, moulded and coped. The lower sasheu in the inside of partition-windows are to be firmly secured to the frames ; the upper sashes in the said windows, and both sashes in each of the other windows, are to be Lung with best flax sash-lines, steel axle- pulleys, and round iron counter-weights, and fitted with bronze sash-fastenings, to cost $7 per dozen. They are to have pockets neatly cut into the pulley-stiles, and secured by brass screws. Each window is to be cased as shown by the draw- ings, and finished with moulded stools and moulded architraves, as therein repre- sented. The upper sash of each and every window in all the halls and staircases is invariably to be hung and fastened. The cellar-windows are to have white-pine rebated plank frames, and a single sash each. The sashes to be hung with stout iron hinges, and fitted with neat and dura- ble buttons and catches. The skylight frames are to be of thoroughly-seasoned, clear, white-pine stock,' rebated for the sashes, put together with white lead, and finished off in a neat and d-trable manner. Doors. All the doors are to be made of thoroughly-seasoned, clear, white-pine stock ; the outside doors to both front and rear being 2 inches thick, the principal doors in the rooms and entries If, and the closet doors 1^ inches thick. The out- side doors are to be made in the forms shown on the drawings ; are to be hung with three sets of 5 inch, ornamental, bronzed, loose, butt-hinges, and fitted with locks, bolts, and trimmings, to be selected by the superintendent, and to cost for such locks, bolts, and trimmings, the sum of $6 exclusive of the cost of putting on. The basement doors are to have locks, trimmings, bolts, and loose butt-hinges, to cost $5 to each door. The doors to the entries, rooms, and closets, are to have four moulded panels to each, and are to be of the sizes marked on the plans. All are to be hung with stout, iron, loose butt-hinges. Those for the storerooms, pantries between the different rooms, and the entry doors, are to have locks and trimmings to cost $5 to each door, on the average. The doors to the bedrooms, closets and to the water-closets, are to have mortised spring-latches with knobs, &c., to correspond to those to the other doors ; and each water-closet is to be fitted with an inside brass bolt, neat and durable. The doors to the coal-bins are to be made of matched and mill-planed white-pine stock, battened ; are to be hung with stout strap-hinges ; and each is to be fitted with a 88 AGKEEMENT AND ASSENT. The fly-doors of tlic vestibule are to be l\ inches thick, -with plain panels. They are to be hung with loose butts, double-action springs of a satisfactory quality; brass bolts to the top and bottom of one half, and a lock to the other half. This door, or the outside door, at the option of the superintendent, is to have a lever night-lock of good quality, with fifty (50) keys. The inside doors are to be finished with hard-pine thresholds, 2 inch rebated and beaded frames of white pine, and architraves to correspond with the window- finish in the various parts of the building. The outside doors are to be hung to 3 inch plank frames, properly dogged to the thresholds ; and jambs finished inside like the inside door, and outside with staff-moulding. Blinds. Each window (excepting those in the basement and French roof) on the exterior of the building is to have a pair of 1 \ inch mortised slat-blinds, made with rebated and beaded stiles, and three rails to each. They are to be hung with the best quality of blind-hinges, and fitted with satisfactory fastenings. Stairs. The stairs are to be framed with deep spruce-plank stringers and handings and winders, as shown on the drawings. They are to have white-pine string and gallery finish, hard-pine risers, treads, and balusters. The balusters to be round, and l\ inches in diameter. The posts are to be 10 inches square, and the newels 5 inches. They are to be moulded and capped, and the post panelled as per drawings. The rail is to be 3^ inches in width, and of a satisfactory pat- tern. The posts, rails, and newels are to be of thoroughly-seasoned black walnut ; and the rails are to be not less than 3 feet high. The stairs to the cellar are to be framed with plank stringers, and to be finished with planed pine-plank risers, and hard-pine treads, and plank hand-rails and supporters. Dado and Inside Finish. The walls of the entries throughout the four fin- ished stories, and of the kitchens and water-closets throughout the building, are to be dadoed to the height of 3^ feet above the floor with narrow matched and beaded white-pine sheathing finished with a moulded capping of the form of the stool nosing. The walls of the parlors and bedrooms are to have moulded bases 10 inches high, and 1^ inches thick. The other walls are to have levelled bases 8 inches high, and of an inch thick. The water-closets are to be finished off with black-walnut stock, the covers and seats being hung to raise, and all woodwork being put up with brass screws. Ven- tilating boxes or flues of brick are to be made for the water-closets where indicated by the drawings, carried out through the roof, and finished in a neat and durable manner. All the inside woodwork not otherwise specified is to be wrought of thoroughly- seasoned, clear, white-pine stock, free from shakes and sap, and put in in the best and most workmanlike manner. SPECIFICATIONS OF MATERIALS. 89 Closets Eadh pantry and china-closet is to be fitted with a case of four drawers made in a neat and substantial manner. One set of drawers in each tenement to have strong tumbler-locks, and each drawer to have two drawer- pulls. These closets are to have shelves and cupboards as directed, and each is to have cleats of cast-iron (single) hooks. The bedroom closets are to have cleats of double cast-iron clothes-hooks placed 6 inches apart on three walls of each, and are to be shelved round over the clothes- hooks. The cupboards above mentioned are to have brass thumb-slides, strong tumbler-locks and drawer-pulls. Floors. The floors to the halls and corridors are to be laid with thoroughly- seasoned, clear, hard-pine stock, not exceeding 5 inches in width, laid close, and thoroughly nailed and smoothed. All the other floors in the four finished stories are to be laid with thoroughly-seasoned, kiln-dried, spruce floorings, selected for clear- ness and soundness. They are not to exceed 6 inches in width, and are to be laid close, thoroughly nailed and smoothed, and put down as soon as taken from the dry- house. Sinks. Each kitchen is to have soapstone set in a pine-plank frame. The sinks are to be 3 feet long, and 1 foot high, and 18 inches wide inside, and are to be finished beneath in a neat and durable manner, with cupboards. They are to be backed up with pine, and fitted to receive the plumbing. Each sink is to have a composition cesspool. Coal-Bins. There are to be coal-bins finished off in the cellars, one for each tenement. Each bin is to be fitted inside the door with two separate compartments capable of holding 1 ton of coal to each compartment, and with another to take 2 barrels of kindlings. The exterior woodwork is to be of pine, mill-planed, and the interior partitions of spruce ; these latter being fitted with sliding gates, and box- ings around them to keep the coal from the floor. All the above work is to be done in the most thorough and workmanlike manner. Bells. The outside door to each tenement is to be fitted with a bell leading to the kitchen. It is to have a handle to correspond with the door-knobs. Each tenement is to have a bell to the porter's room, fitted with a bronze slide. All the above are to be gong-bells with tubed wires, and put in the most perfect manner. 90 CONSIDERATION. % CHAPTER VII. SECTION I. THE NEED OF A CONSIDERATION. IT is an ancient and well-established rule of the common law prevailing in this country, that no promise can be enforced at law, unless it rests upon a consideration ; by which word is meant a cause or reason for the promise. If it do not, it is called a naked bargain, and the promisor, even if he admits his promise, is under no legal obligation to perform a promise that he made without a considera- tion. There are two exceptions to this rule. One is when the promise is made by a sealed instrument, or deed ; (every written instrument which is sealed is a deed.) Here the law is said to imply a con- sideration ; the meaning of which is that it does not require that any consideration should be proved. The seal itself is said to be a consideration, or to import a consideration. The second exception relates to negotiable paper ; and is an instance in which the law-merchant has materially qualified the common law. We shall speak more fully of this exception when we treat of negotiable paper. The word " consideration," as it is used in this rule, has a peculiar and technical meaning. It denotes some substantial cause for the promise. This cause must be one of two things ; either a benefit to the promisor, or else an injury or loss to the promisee sustained by him at the instance and request of the promisor. . Thus, if A promises B to pay him a thousand dollars in three months, and even promises this in writing, the promise is worthless in law, if A makes it as a merely voluntary promise, without a consideration. But if B, or anybody for him, gives to A to-day a thousand dollars in goods or A SUFFICIENT CONSIDERATION. 91 money, and this was the ground and cause of the promise, then it is enforceable. And if -A got nothing for his promise, but B, at the request of A, gave the same goods or money to C, this would be an equally good consideration, and the promise to pay B would be equally valid in law. This requirement of a consideration sometimes operates harshly and unjustly, and permits promisors to break their word under cir- cumstances calling strongly for its fulfilment. Courts have been led, perhaps, by this, to say that the consideration is sufficient if it be a substantial one, although it be not an adequate one. This is the unquestionable rule now, and it is sometimes carried very far. In one case an American court refused to inquire into the adequacy of the consideration, or whether it was equal to the promise made upon it, and said, if there was the smallest spark of consideration it was enough, if the contract was fairly made with a full under- standing of all the material facts. Still, there must be some con- sideration. SECTION n. WHAT IS A SUFFICIENT CONSIDERATION. THE law detests litigation ; at least courts say so ; and therefore they consider any thing a sufficient consideration which arrests and suspends or terminates litigation. Thus the compromise, or for- bearance, or mutual reference to arbitration, or any similar settle- ment, of a suit, or of a claim, is a good consideration for a promise founded upon it. And it is no defence to a suit on this promise, to show that the claim or suit thus disposed of would probably have been found to have no foundation or substance. If there be an honest claim, which he who advances it believes to be well grounded, and which within a rational possibility may be so, this is enough ; the court will not go on and try the validity of the claim or of the suit in order to test the validity of a promise which rests upon its settlement ; for the very purpose for which it favors this settlement is the avoidance of all necessity of investigating the claim by litigation. But for reasons of public policy, no promise 92 CONSIDEEATIOHT. can be enforced of which the consideration was the discontinuance of criminal proceedings ; or any conduct by which public interests are harmed, as, for example, the procurement of the passage of a law by corrupt means. If any work or service is rendered to one, or for one, and he , requested the same, it is a good consideration for a promise of pay- ment ; and if he makes no promise, the law will imply the promise, that is, will suppose that he has made it, and will not permit him to deny it. The rule is the same as to payment for goods, or property of any kind, delivered to any one at his request. No person can make another his debtor against that other's will, by a voluntary offer of work, or service, or money, or goods. But if that other accept what is thus offered, and retain the benefit of it, the law will, generally, imply or presume that it was offered at the request of that other party, and will also imply his promise to pay for it, and will enforce the promise ; unless it is apparent, or is . shown, that it was offered and received as a mere gift. A promise is a good consideration for a promise ; and it is one which frequently occurs in fact. If A says to B, " If you will deliver goods to C, I will pay for them," although there is no obligation upon B to deliver the goods, if he does deliver them, he furnishes a consideration for the agreement, and may enforce it against A. An agreement by two or more parties to refer disputes or claims between them to arbitration, is not binding upon any of the parties unless all have entered into it. The principle, that a promise is a good consideration for a prom- ise, has been sometimes applied to subscription-papers ; all who sign them being held on the ground that the promise of each is a good consideration for the promises of the rest. The law on the subject of these subscription-papers, and of all voluntary promises of contribution, is substantially this : no such promises are bind- ing, unless something is paid for them, or unless some party for whose benefit they are made, and this party may be one or more of the subscribers, at the request, express or implied, of the promisors, and on the faith of the subscriptions, incurs actual expense or loss, or enters into valid contracts with other parties AN ILLEGAL CONSIDEKATION. 93 which will occasion expense or loss. As the objection to thepe promises or the doubt about them, conies from the want of con- sideration, it may be cured by a seal to each name, or by one seal which all the parties consider the seal of each. It is .to be regretted that the law does not regard a merely moral consideration as a sufficient legal consideration ; but so it is. Thus, it has been held in this country, that a note given by a father to a party who had given needful medicines, food, and shelter to his sick son, who was of full age, was void in law, because there was no legal consideration. And the same doctrine was applied where a son made a similar promise for food and support to his aged father. If, in either case, the promise had been made lefore the food or other articles were supplied, or even a request made lefore the sup- ply, then the supply of the food and support would have been a good consideration. But they had all been supplied before any request or promise, and nothing was left but the moral obligation of a father to compensate one who had supported his son, or of a son to support his father ; and this the law does not deem sufficient to make even an express promise enforceable at law. SECTION in. AN HXEGAt CONSIDERATION. IP the whole of a consideration, or if any part of the cousidera tion of an entire and indivisible promise, be illegal, the promise founded upon it is void. Thus, where a note was given in part for the compounding of penalties and suppressing of criminal prosecu- tions, it was held to be wholly void and uncollectable. And where a part of the consideration of a note was spirituous liquors, sold by the payee in violation of a Statute, such note was held to be wholly void. But if the consideration consists of separable parts, and the promise consists of corresponding separable parts, which can be apportioned and applied, part to part, then each illegality will affect only the promise resting on it ; for in fact there are many considerations and many promises. 94 CONSIDERATION. If the consideration be entire and wholly legal, and the promise consists of separable parts, one legal and the other illegal, the promisee can enforce that part which is legal. SECTION IV. AN IMPOSSIBI,E CONSEDEKATION. No contract or promise can be enforced bj him who knew that the performance of it was wholly impossible ; and therefore a con- sideration which is obviously and certainly impossible is not sufficient in law to sustain a promise. But if one makes a promise, he can- not always defend himself when sued for non-performance by showing that performance was impossible ; for it may be his own fault, or his personal misfortune, that he cannot perform it. He had no right to make such a promise, and must answer in dam- ages ; or if he had a right to make it in the expectation of perform- ance, and this has become impossible subsequently, as by loss of property, for example, this is his misfortune, and no answer to a suit on the promise. There are, however, obviously, promises or contracts, which, from their very nature, must be construed as if the promisor had said, " I will do so and so, if I can." For example, if A promises to work for B one year, at $20 a month, and at the end of six months is wholly disabled by sickness, he is not liable to an action by B for breach of his contract ; and he can recover his pay for the time that he has spent in B's service. A mere want of money, which makes a pecuniary impossibility, is not regarded by the law as a legal impossibility. SECTION V. FAH.UBE OF CONSLDEBATION. IP a promise be made upon a consideration which is apparently valuable and sufficient, but which turns out to be nothing ; or if the consideration was originally good, but becomes wholly valueless FAILUEE OF CONSIDERATION. 95 before part performance on either side, there is an end of the con- tract, and the promise cannot be enforced. And if money were paid on such a consideration, it can be recovered back. But only the sum paid can be so recovered, without any increase or addition as compensation for the plaintiff's loss and disappointment, unless there were fraud or oppression. If the failure of consideration be partial only, leaving a substan- tial, though far less valuable, consideration behind, this may still be a sufficient foundation for the promise, if that be entire. The promisor may then be sued on the promise ; but he will then be entitled, by deduction, set-off, or in some other proper way, to due allowance or indemnity for whatever loss he may sustain as to the other parts of the bargain, or as to the whole transaction, from the partial failure of the consideration. Thus, if he promised so much money for work done in such a way, or as the price of a thing to be made and sold to him, if no work is done, or the thing is not made or sold, there is an end of the promise, because the considera- tion has failed. But if the work was done, but not as it should have been, or the thing made and sold, but not what it should have been, and the promisor accepted the work or the thing, he may now show that the consideration for his promise has partially failed, and may have a proportionate reduction in his promise, or in the amount he must pay. And if the promise be itself separable into parts, and a distinct part or proportion of the consideration failed, to which part some distinct part or proportion of the promise could be applied, that part of the promise cannot be enforced, although the residue of the promise may be. If A agrees with B to work for him one year, or any stated time, for so much a month, or so much for the whole time, and, after working a part of the time, leaves B without good cause, it is the ancient and still prevailing rule, that A can recover nothing in any form or way. It has, however, been held in New Hampshire, that A can still recover whatever his services are worth, B having the right to set off or deduct the amount of any damage he may have sustained from A's breach of the contract. This view seems just and reasonable, although it has not been supported by adjudication in other States. If A agrees to sell to B five hundred barrels of 96 CONSIDERATION. flour at a certain price, and, after delivering one-half, refuses to deliver any more, B can certainly return that half, and pay A nothing. But if B chooses to retain that half, or if he has so dis- posed of or lost it that he cannot return it, he must pay what it is worth, deducting all that he loses by the breach of the contract. And this case we think analogous to that of a broken contract of service ; but B's liability to pay, even in' the case supposed as to goods, has been denied by some courts. A difficulty sometimes arises where A, at the request of B, under- takes to do something for B, for which he is to be paid a certain price ; and in doing it he departs materially from the directions of B and from his own undertaking. What are now the rights of the parties ? This question arises most frequently in building-contracts, in which there is usually some departure from the original under- taking. The general rules are these. If B assent to the alteration, it is the same thing as if it were a part of the original contract. lie may assent expressly, by word or in writing ; or constructively, by seeing the work, and approving it as it goes on, or being silent ; for silence under such circumstances would generally be equivalent to an approval. But if the change be one which B had a right, either from the nature of the change, or the appearance of it, or A's language respecting it, to suppose would add nothing to the cost, then no promise to pay an increased price would be infeired from either an express or tacit approval. Generally, as we have seen, if A does or makes what B did not order or request, B can refuse to accept it, and, if he refuses, will not then be held to pay for it. But if he accepts it, he must pay for it. This consequence results, how- ever, only from a voluntary acceptance. For if A choose, without any request from B, to add something to B's house, or make some alteration in it, which being done cannot be undone or taken away without detriment to the house, B may hold it, and yet not be liable to pay for it ; and A has no right to take it away, unless he can do so without inflicting any injury whatever on B. This rule woul 1 apply whether the addition or alteration were larger or smaller. It is sometimes provided in building-contracts that B shall pay for no alteration or addition, unless previously ordered by him in writ- ing. But if there be such provision, B would be liable for any BONDS. 97 alteration or addition he ordered in any way, or voluntarily accept- ed after it was made, when he could have rejected it. So it is sometimes agreed that any additions or alterations shall be paid for at the same rate as the work contracted for. The law would imply this agreement if the parties did not make it expressly. CHAPTER Yin.. A BARGAIN where both parties make promises, and come under obligations, each to the other, may be made without seal, and would then be called an Agreement. If made under seal, it would gener- ally be in the form of, and bear the name of, an Indenture. If a promise by one only, is made in writing, without a seal, it is a sim- ple promise ; but if it be made with a seal, then it would generally be in the form of, and bear the name of, a BOND. The essentials of a bond are only that one party should acknowl- edge himself "held, bound, and obliged" unto another party, to pay to him a sum of money ; and neither of the words " held," or "bound," or "obliged," are strictly necessary, although usual and proper : other words of the same meaning will have the same effect. In such a bond, the party bound is called the obligor, and the party to whom he is bound is called the obligee. The sum for which the obligor is bound is called the penal sum, or the penalty. Such a bond is simply an obligation to pay so much money. But a bond is not often given only for this purpose. It is usually intended to be, in fact, an obligation to do something else, on the penalty of paying so much money if it be not done. This something else may be any thing whatever which the obligor may contract to do. All this is contained in an addition, which is written on the same paper immediately after the bond itself; that is, after the words of obli- 98 BONDS. gallon. And this is called the " Condition " of the bond. It begins with saying, This bond is on the condition following ; and then re- cites the things which the obligor has undertaken to do ; and then adds, that if all these things are fully done and performed, then the bond shall be void and of no effect, and otherwise shall remain in full force. The meaning and effect of all this is, that if the obligor fails, in any respect, to do what the condition recites, then he is bound to pay the money he acknowledges himself, in the bond, bound to pay. But now the law comes in to mitigate the severity of this contract. And whatever be the sum which the obligor acknowledges himself, in the bond, bound to pay, lie is held by the courts to pay to the obligee only that amount which will be a complete indemnification to him for the damage he has sustained by the failure of the obligor to do what the condition recites. , Fur example ; suppose A B makes a bond to C D, acknowledg- ing himself bound to C D in the sum of ten thousand dollars. The condition recites that one E F has been hired by C D as his clerk, and that A B guarantees the good conduct of E F ; and if E F does all his duty honestly and faithfully, then the bond is void, and otherwise remains in full force. Then suppose E F to cheat C D out of some money. A B is sued on the bond ; C D cannot recover from him, in any event, more than the ten thousand dollars ; and he will in fact recover from him only so much of this as will make good to C D all the loss he has sustained by E F's misconduct. As the obligee can recover from the obligor only actual compensa- tion for what he loses, it is usual, in practice, to make the penal sum in the bond large enough to cover all the loss that can hap- pen. There need be no " consideration," alleged or asserted in the bond, or proved, because, in the language of the law, the seal is (or implies) a consideration. The following forms are those of bonds frequently given ; and it will be easy to frame from some one of them any bond that is wanted for other purposes. FORMS OF BONDS. 99 (25.) A Simple Bond t without Condition. Know all Men by these Presents, That I (the obligor) am held and firmly bound unto (the obligee) in the sum of lawful money of the United States of America, to be paid to the said or his certain attorney, or assigns : to which payment well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal Dated the day of in the year of our Lord one thousand eight hundred and . In Testimony VV nereofj I have set my hand and seal to this instrument, on the day of , in the year of our Lord eighteen hundred and . . ( Witnesses.) (Signature.) (Seal.) Executed and Delivered in Presence of (26.) Bond for Payment of Money, with a Condition to that Effect, with Power of Attorney to confess Judgment annexed. Know all Men by these Presents, That held and firmly bound unto in the sum of lawful money of the United States of America, to be paid to the said or his certain attorney, executors, administrators or assigns : to which payment well and truly to be made, heirs, executors and administrators, firmly by these presents. Sealed with seal Dated the day of , in the year of our Lord one thousand eight hundred and . The Condition of this Obligation is such, That if the above boundeu heirs, executors, administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above-named certain attorney, executors, administrators or assigns, the just sum of dollars, without any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue. (Signature) (Seal.j Sealed and Delivered in the Presence of 100 BONDS. To , Etq., Attorney of the Court of Common Pleas, at in the County of , in the State of , or to any other Attorney of the tend Court, or of any other Court, there or elseizhere. "Whereas, (the obligor) in and by a certain obligation bearing even date herewith, do stand bound unto (the obligee) in the Bum of lawful money of the United States of America, conditioned for the payment of These are to desire and authorize you, or any of you, to appear for heirs, executors or administrators, in the said court or elsewhere, in an action of debt, there or elsewhere brought, or to be brought, against me,. or my heirs, executors or administrators, at the suit of the said (the obligee) executors, administrators or assigns, on the said obligation, as ef any term or time past, present, or any other subsequent term or tune there or elsewhere to be held, and confess judgment thereupon against me, or my heirs, executors or adminis- trators, for the sum of lawful money of the United States of America, debt, besides costs of suit, hi such manner as to you shall seem meet : and for your, or any of your so doing, this shall be your sufficient warrant. And I do hereby for myself, and for my heirs, executors and administrators, remise, release, and forever quit claim unto the said (the obligee) or his certain attorney, executors, administrators and assigns, all and all manner of error and errors, misprisions, misentries, defects and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or anywise touching or concerning the same. In Witness Whereof have hereunto set hand and seal , the day of , in the year of our Lord one thousand eight hundred and . (Signature.') (Seal) Sealed and Delivered in the Presence of (27.) Bond for Conveyance of a Parcel of Land. Know all Men by these Presents, That we, as principals, and as sureties, are holden and stand firmly bound unto in the sum of dollars, to the payment of which to the said or executors, administrators, or assigns, we hereby jointly and severally bind ourselves, our heirs, executors, and administrators. The Condition of this obligation is such that whereas the said obligors have agreed to sell and convey unto the said obligee a certain parcel of real estate FORMS OF BONDS. 101 situated .and bounded as follows, namely : The same to be conveyed by a good and sufficient (warranty or other) deed of the said obligors, conveying a good and clear title to the same, free from all incumbrances And whereas, for such deed and conveyance it is agreed that the said obligee shall pay the sum of dollars, of which dollars are to be paid in cash upon the delivery of said deed, and the remainder by the note of the said obligee, bearing interest at per cent per annum, payable semi-annually, and secured by a mortgage in the usual form upon the said premises, sueh note to be (describe the note) NoWj therefore, if the said obligors shall upon tender by the said obligee of the aforesaid cash, note , and mortgage at any time within from this date, deliver unto the said obligee a good and sufficient deed as aforesaid, then this obligation shall be void, otherwise it shall be and remain in ftdl force and virtue. In Witness Whereof, We hereunto set our hands and seals this day of A.D., 18 . Signed and Sealed in Presence of (28.) Bond for a Deed of Land, with Acknowledgment before Notary Public. Know all Men by these Presents, That of the County of and State of held ana firmly bound to of in the sum of dollars, to be paid to said his executors, administrators or assigns, to the payment whereof bind sel heirs, executors and administrators, firmly by these presents, sealed with seal, and dated the . day of A.D., 186 . The Condition of this Obligation is, That if the said upon payment of dollars, and interest, by said within years from this date, agreeably to note of even date herewith, shall convey to said and heirs forever, a certain tract of land, situated in the County of and State of to wit : by a deed in common form duly executed and acknowledged, and in the mean time shall permit said to occupy and improve 102 BONDS. said premises for own use, then this obligation shall be void, otherwise to remain in full force and effect. Ill Testimony Whereof, have hereunto set ham< and seal , the day and year first above written. (Signature.') (Seel) STATE OF COUNTY OP Be it Remembered, That on this day of >8S. eighteen hundred and , before me, the undersigned, Notary Public in and for said County and State, duly commissioned and qualified, came who to be the same person whose name subscribed to the foregoing instrument of writing, as party thereto, and acknowledged the same to be act and deed for the purpose therein mentioned. In Testimony Whereof, I have hereunto set my hand and affixed my official seal, at my office, in the City of , the day and year last aforesaid. Notary Public. (29.) Bond in another Form, for Conveyance of Land, with Acknowledgment. Know all Men by these Presents, That of in the County of and State of held and firmly bound unto of in the County of and State of in the penal sum of dollars, for the payment of which sum, well and truly to be made to heirs, executors and administrators, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with, my seal and dated this day of A.D. 18 The Condition of the above Obligation is such, That whereas the said this day has given the said promissory note of even date herewith Now, if, on payment of the said note being made on or before the time * shall become due, and all taxes on the land herein- after described having been paid by the said and no right of pre-emption having been established or claimed on the said land, or any part thereof, the said or his legal representatives, shall, whenever the; tunto afterwards requested, execute and deliver to the said or FORMS OF BONDS. 103 legal representatives, a good and sufficient deed, conveying to the (here describe the land) free and clear of all incumbrance then this obligation to be null and void, otherwise of full force and effect, it being distinctly understood and agreed by and between the parties hereto that the tune of payment herein above fixed material and of the essence of this contract, and that in case of failure therein, the intervention of equity is forever barred. (Signatures.) (Seals.) Signed, Sealed and Delivered in Presence of STATE OF ) COUNTY OF ) I, in and for the said county, in the State aforesaid, do hereby certify that personally known to me as the same person whose name subscribed to the above bond for deed, appeared before me this day, in person, and acknowledged that he signed, sealed and deliv- erd the said bond as free and voluntary act, and for the use and purpose therein set forth. Given under my hand and seal, this, day of A.D. 18 Notary PuUic. (30.) Bond to Corporation for Payment of Money due for Contribution to Capital Stock, with Power of Attorney to confess Judgment* Know all Men by these Presents, That held and firmly bound unto (name of the corporation) in the sum of lawful money of the United States of America, to be paid to aforesaid, their certain attorney, successors or assigns. To which payment well and truly to be made, firmly by these presents. Sealed with seal . Dated the day of in the year of our Lord one thousand eight hundred and The Condition of this Obligation is such, That if the above bounden heirs, executors and administrators, or any of them, ehall and do well and truly pay, or cause to be paid unto the above-named their certain attorney, successors or assigns, the just sum of such as abovesaid, at any time within years from the date hereof, together with lawful interest for the same, in like money, 104 BONDS. payable monthly, on the of each and every month hereafter, and shall also \vell and truly pay, or cause to be paid unto aforesaid, their successors or assigns, the sum of dollars, on the said of each and every month hereafter, as and for the monthly contribution on share of the capital stock of aforesaid, now owned by the said without any fraud or further delay ; provided, however, and it is hereby expressly agreed, that if at any tune default shall be made in the payment of the said principal money when due, or of the said interest, or the monthly contribution on said stock, for the space of after any payment thereof shall fall due, then and hi such case, the whole principal debt aforesaid shall, at the option of aforesaid, their successors and assigns, immediately thereupon become due, payable and recoverable, and payment of said principal sum and all interest thereon, as well as any contribution on said share of stock, then due, may be enforced and recovered at once, any thing hereinbefore contained to the con- trary thereof notwithstanding. And the said for heirs, executors, administrators and assigns, hereby expressly waive and relinquish unto aforesaid, their successors and assigns, all benefit that may accrue to by virtue of any and every law, made or to be made, to exempt the premises described in the indenture of mortgage herewith given, or of any other premises whatever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys hereby secured, or any part thereof, then the above obligation to be void, or else to be and remain hi full force and virtue. (Signatures.) (Seals.) Executed and Delivered in Presence of To Esquire, Attorney of the Court of Common Pleas at in the County of in the Slate of or to any other Attorney, or to the Prothonotary of the taid Court, or of any other Court, there or elsewhere. Whereas, in and by a certain obligation, bearing even date herewith, do stand bound unto in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of such as abovesaid, at any time within years from the date thereof, together with lawful interest for the same hi like money, payable monthly, on the of each and every month thereafter, and should also well and truly pay or cause to be paid unto aforesaid, their successors or assigns, the sum of dollars, on the of each and every month thereafter, as and for the monthly contribution on share of the capital stock of aforesaid, now owned by the said without any fraud or further delay ; provided, however, and it is thereby expressly agreed, that if at any time default should be made in the payment of the FORMS OF BONDS. 105 said principal money when due, or of the said interest, or the monthly contribution on said stock, for the space of after any payment thereof should fall due, then and in such case the whole principal debt aforesaid should at the option of aforesaid, their successors and assigns, immediately thereupon become due, payable and recov- erable, and payment of said principal sum, and all interest thereon, as well as any contribution on said share of stock then due, might be enforced and recovered at once, any thing thereinbefore contained to the contrary thereof notwithstanding. And the said heirs, executors, administrators and assigns, thereby expressly waive and relinquish unto aforesaid, their successors and assigns, all benefit that might acrue to by virtue of any and every law, made or to be made, to exempt the premises described in the indenture of mortgage therewith given, or of any other premises whatever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys thereby secured, or any part thereof. These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or elsewhere, hi an action of debt, there or elsewhere brought or to be brought, against heirs, executors, or administrators, at the suit of aforesaid, their successors or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term or time, there or elsewhere to be held, and confess or enter judgment thereupon against heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides costs of suit, in such manner as to you shall seem meet ; and for your or any of your so doing this shall be your sufficient warrant. And heirs, executors and administrators, remise, release, and forever quit claim, unto aforesaid, their certain attorney, successors and assigns, all and all manner of error and errors, misprisions, misentries, defects and imper- fections whatever, in the entering of the said judgment, or any process or proceed- ings thereon or thereto, or anywise touching or concerning the same. In Witness Whereof have hereunto set hand and seal the day of in the year of our Lord one thousand eight hundred and (Signatures^ (Seab.} Sealed and Delivered in Presence qf LOG ASSIGNMENTS. CHAPTER IX. A. 8 8 1 G 1ST M: IE 3V T S. THE word " assign " usually occurs in almost all forms of transfer and conveyance ; but there are certain instruments to which the name of " Assignment " is more particularly given. They are instruments by which other instruments or debts or obligations, as bonds, judgments, wages, and the like, are transferred. Sometimes they are written on the backs of, or elsewhere on the same paper with, the instruments to be transferred by the assignment. Some of these, as assignments of deeds of grant and conveyance, of mort- gages, of leases, will be given in the chapters which treat of those topics. Here are given such forms as will enable one to make an assignment for any of the purposes for which assignments are usually made. (31.) Brief Form of an Assignment to be indorsed on a Note, or any Similar Promise or Agreement. I Hereby, for value received, assign and transfer the within written (or the above written) , together with all my interest in and all my rights under the same, to (name of the assignee). (Signature.) (32.) A General Assignment, with Power of Attorney. Know all Men by these Presents, That I for value received, have sold, and by these presents do grant, assign and convey nnto (name of the assignee and description of the things assigned) To Have and to Hold the same unto the said executors, administrators and assigns forever, to and for the use of hereby constituting and appointing my true and lawful attorney irrevocable in my name, place and stead, for the purposes aforesaid, to ask, de- mand, sue for, attach, levy, recover and receive all such sum and sums of money FOEMS OF ASSIGNMENTS. . 107 which now are, or may hereafter become due, owing and payable for, or on account of all or any of the accounts, dues, debts, and demands above assigned giving and granting unto the said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary, as fully, to all intents and purposes, as might or could do, if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that the said attorney or substitute shall lawfully do or cause to be done by virtue hereof. In Witness Whereofj I have hereunto set my hand and seal the day of , one thousand eight hundred and (Signature.') (Seal.) Executed and Delivered in the Presence of (33.) Assignment of a Bond. Know all Men by these Presents, That in the hereunto annexed obligation named, for and in consideration of the sum of lawful money of the United States of America, unto well and truly paid by at the time of the execution hereof, the receipt whereof hereby acknowledge, have assigned, trans- ferred and set over, and by these presents, do assign, transfer and set over unto the said (assignee) his executors, administrators and assigns, to and for his and their only proper use and behoof, the said hereunto annexed obligation, which is given and executed by to bearing date the day of Anno Domini, 18 , to secure the payment of the sum of with lawful interest therein expressed, and all moneys, both principal and interest, thereon due and payable, or hereafter to grow due and pay- able, with the warrant of attorney to the said obligation annexed : together with all rights, remedies, incidents and appurtenances, whatsoever thereunto belonging, or in any wise appertaining, and all right, title and interest therein. In "Witness Whereof, the said have hereunto set hand and seal , this day of Anno Domini, one thousand eight hundred and Sealed and Delivered in the Presence of us, (34.) Assignment of a Bond, with Power of Attorney, and a Covenant, Know all Men by these Presents, That of the first part, for and in consideration of the sum of lawful money of the United States of America, $o in hand paid by 108 . ASSIGNMENTS. of the second part, at or before the ensealing and delivery of these presents, the receipt -whereof is hereby acknowledged, ha bargained, sold and assigned, and by these presents do bargain, sell and assign, unto the said party of the second part, executors, administrators, and assigns, a certain written bond or obligation and conditions thereof, bearing date the day of one thousand eight hundred and executed by and all sum and sums of money due, and to grow due thereon : and the said party of the first part do covenant with the said party of the second part, that there is now due on the said bond or obligation, according to the conditions thereof, for principal and interest, the sum of and do hereby authorize the said party of the second part, in name to ask, demand, sue for, recover, receive, and enjoy, the money due and that may grow due thereon, as aforesaid. In Witness Whereofj have hereunto set hand and seal the day of one thousand eight hundred and Sealed and Delivered in the Presence of (35.) Assignment of a Judgment, in the Form of an Indenture. This Indenture, Made the day of one thousand eight hundred and between (assignor) of the first part, and (assignee') of the second part. "Whereas, The said part of the first part one thousand eight hundred and recovered by judgment in the (name of court) against one the sum of Now this Indenture Witnesseth, That the said part of the first part, in consideration of to duly paid, ha sold, and by these presents do assign, transfer, and set over unto the said part of the second part, and assigns, the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon. And the said part of the first part, do hereby constitute and appoint the said part of the second part, and assigns, true and lawful attorney, irrevocable, with power of substitution and revocation for the use, and at the proper costs and charges of the said part of the second part, to ask, demand and receive, and to sue out executions, and take all lawful ways for the recovery of the money due or to become due on the said judgment : and on pay- ment to acknowledge satisfaction, or discharge the same. And attorneys one or more under for the purpose aforesaid, to make and substitute, and at pleasure to revoke ; hereby ratifying and confirming all that said FOEMS OF ASSIGNMENTS. 109 attorney or substitute shall lawfully do in the premises. And the said part of the first part do covenant, that there is now due on the said judgment the sum of and that will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein, the said part of the second part saving the said part of first part, harmless of and from any costs in the premises. In Testimony Whereof, The part of the first part, ha hereunto set hand and seal the day and year first above written. (Seals,) Sealed and Delivered in the Presence of (30.) Assignment of Wages, with Power of Attorney. Know all Men by these Presents, That I of in the County of in consideration of to me paid by of the receipt whereof I do hereby acknowledge, do hereby assign and transfer to said all claims and demands which I now have, and all which, at any time between the date hereof and the day of next, I may and shall have against for all sums of money due, and for all sums of money and demand which, at any time between the date hereof and the said day of next, may and shall become due to me, for services as to have and to hold the same to the said his executors, admin- istrators and assigns forever. And I, do hereby constitute and appoint the said and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as I could if personally present. In Witness Whereof, I have set my hand and seal, this day of 18 (Seal.) Signed, Sealed and Delivered in Presence of 110 SALES OF PERSONAL PROPERTY. CHAPTER X. OF I>EK,SO]VA.Iu SECTION I. WHAT COXSTltUTES A SALE. IT is important to distinguish carefully between a sale and an agreement for a future sale. This distinction is sometimes over- looked; and hence the phrase "an executory contract of sale," that is, a contract of sale which is to be executed hereafter, has come into use ; but it is not quite accurate to speak of this as if it were a sale. Every actual sale is an executed contract, although payment or delivery may remain to be made. There may be an executory contract for sale, or a bargain that a future sale shall be made ; but such a bargain is not a present sale ; nor does it confer upon either party the rights or the obligations which grow out of the contract of sale. A sale of goods is the exchange thereof for money. More pre- cisely, it is the transfer of the property in goods from a seller to a buyer, for a price paid, or to be paid, in money. It differs from an exchange, in law ; for that is the transfer of chattels for other chat- tels ; while a sale is the transfer of chattels for money, which is the representative of all value. Here we must pause to speak of the legal meaning of the word " property." It is seldom or never used in the law as it is in com- mon conversation, to mean the things themselves which are bought, or sold, or owned. Because in law it means the ownership of the tilings, and not the things themselves. If a bargain transfers the property in (which means the ownership of) the thing to another person for a price, it is a sale ; and if it does not transfer the property, it is not a sale ; and, on the other hand, if it be not a sale, it does not transfer the property. As soon as WHAT CONSTITUTES A SALE. Ill a thing is sold, the buyer owns it, wherever it may be. And to constitute a sale at common law, all that is necessary is the agree- ment of competent parties that the property in (or ownership of) the subject-matter shall then pass from the seller to the buyer for a fixed price. The sale is made when the agreement is made. The completion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By the mutual assent of the parties to the terms of the sale, the buyer acquires at once the property and all the rights and liabilities of property ; so that, in case of any loss or depreciation of the articles purchased, the buyer will be the sufferer ; and he will be the gainer by any increase in their value. It is, however, a presumption of the law, that the sale is to be immediately followed by payment and delivery, unless otherwise agreed upon by the parties. If therefore nothing appears but a proposal and an acceptance, and the vendee departs without paying or tendering the price, the vendor may elect to consider it no sale, and may, therefore, if the buyer comes at a later period and offers the price and demands the goods, refuse to let him have them. But a credit may be agreed on expressly, and the seller will be bound by it ; and so he will be if the credit is inferred or implied from usage or from the circumstances of the case. And if there be a delivery and acceptance of the goods, or a receipt by the seller of earnest, or of part payment, the legal inference is that both parties agree to hold themselves mutually bound by the bargain.. Then the buyer has either the credit agreed upon, or such credit as from cus- tom or the nature or circumstances of the case is reasonable.. But neither delivery, nor earnest, nor part payment, is essential to the completion of a contract of sale. They only prevent the seller from rescinding the contract of sale without the consent of the purchaser. Their effect upon sales under the provisions of the Statute of Frauds will be considered in the chapter on that subject. It may also be said that no one can be made to buy of .another without his own assent. Thus, if A sends an order to B for goods, and sends the goods, he cannot sue for the price, if A repudiates the sale, although C had bought B's business. 112 SALES OF PERSONAL PROPERTY. TLe seller (if no delivery with credit for the price is agreed on) has a right to retain possession of the property sold until the price is paid. This right is called a lien, which means the right of retain- ing possession of property until some charge upon it, or some claim on account of it, is satisfied. It rests therefore on possession. Hence the seller (and every other person who has a lien) loses it by voluntarily parting with the possession, or by a delivery of the goods. And it is a delivery for this pupose, if he delivers a part without any purpose of severing that part from the remainder ; or if he make a symbolical delivery which vests this right and power of possession in the buyer, as by the delivery of the key of a ware- house in which they are locked up. If the seller delivers the goods to the buyer, as he thereby loses his lien, he cannot afterwards, by virtue of this lien, retake the goods and hold them. But if the delivery was made with an express agreement that non-payment of the price should revest the property in the seller, this agreement may be valid, and the seller can reclaim the goods from the buyer if the price be not paid. If the buyer neglect or refuse to take the goods and pay the price within a reasonable time, the seller may resell them on notice to the buyer, and look to him for the deficiency by way of damages for the breach of the contract. The seller, in making such resale, acts as agent or trustee for the buyer ; and his proceedings will be regu- lated and governed by the rules usually applicable to persons acting in those capacities ; and the principal one of these is, that he will be held to due care and diligence, and to perfect good faith. Certain consequences flow from the rules and principles already stated, which should be noticed. Thus, if the party to whom the offer of sale is made, accepts the offer, but still refuses or neglects to pay the price, and there are no circumstances indicating a credit, or otherwise justifying the refusal or neglect, the seller may, as we have said, disregard the acceptance of his offer, and consider the contract as never made, or as rescinded. It would, however, be proper and prudent on the part of the seller expressly to demand payment of the price before he treated the sale as null ; and a re- fusal or neglect would then give him at once a right to hold and treat the goods as his own. So, too, if the seller unreasonably neg- WHAT CONSTITUTES A SALE. . 113 lected or refused to deliver the goods sold, and especially if he refused to deliver them, the buyer thereby acquires the right to consider that no sale was made, or that it has been avoided (or annulled). But neither party is bound to exercise the right thus acquired by the refusal or neglect of the other, but may consider the sale as complete ; and the seller may sue the buyer for non-pay- ment, or the buyer may sue the seller for non-delivery. If the seller has merely the right of possession, as if he hired the goods ; or if he has the possession only, as if he stole them, or found them ; he cannot sell them and give good title to the buyer against the owner ; and the owner may therefore recover them even from an honest purchaser who was wholly ignorant of the defect in the title of him from whom he bought them. This follows from the rule above stated, that only he who has in himself a right of proper- ty can sell a chattel, because the sale must transfer the right of property from the seller to the buyer. The only exception to the above rule is where money, or negotiable paper transferable by delivery (which is considered as money), is sold or paid away. In either case, he who takes it in good faith, and for value, from a thief or finder, holds it by good title. But if the owner once sold the thing, although he was deceived and induced to part with his property through fraud, he cannot reclaim it from one who in good faith buys it from the fraudulent party. If any thing remains to be done by the seller, to or in relation to the goods sold, for their ascertainment, identification, or completion, the property in the goods does not pass until that thing is done ; and there is as yet no completed sale. Therefore, if there be a bargain for the sale of specific goods, but there remains something material which the seller is to do to them, and they are casually burnt or stolen, the loss is the seller's, because the property (or ownership,) had not yet passed to the buyer. So, if the goods are a part of a large quantity, they remain the seller's until selected and separated ; and even after that, until recognized and accepted by the buyer, unless it is plain from words or circumstances that the selection and separation by the buyer are intended to be conclusive upon both parties. If repairing or measuring or counting must be done by the seller, 114 SALES OF PERSONAL PKOPERTY. before the goods are fitted for delivery or the price can be determined or their quantity ascertained, they remain, until this be done, the seller's. And where part is measured and delivered this part passes to the vendee, but the portion not so set apart does not. But if the seller delivers them and the buyer accepts them, and any of these acts remain to be done, these acts will not be considered as belonging to th,e contract of sale, for that will be regarded as completed, and the ownership of the goods will have passed to the buyer ; and these acts will be taken only to refer to the adjustment of the final settle- ment as to the price. Thus, a purchaser offers a nursery-man a dollar apiece for two hundred out of a row of two thousand trees, which are all alike, and the offer is accepted. This is no sale, because any two hundred may be delivered, and therefore the property or ownership of any specific two hundred does not pass. But if the purchaser o'r seller had said, the first two hundred in the row, or the last, or every third tree, or otherwise indicated the specific trees, there would have been a sale, and by the sale those specific trees would have become at once the trees of the buyer. The seller would dig up and deliver them as the buyer's trees, and if they were burned up by accident an hour after the sale, and before digging, the buyer would lose the trees. If not specified, however, even if they were paid for, they remain the property of the nurseryman, because, in- stead of an actual sale, there is only a bargain that he will select two hundred from the lot, and take up and deliver them. And if they are destroyed before delivery, this is the loss of the nurseryman. Moreover, it is to be noticed that a contract for a future sale, to take place either at a future point of time, or when a certain event happens, does not, when that time arrives, or on the happening of the event, become of itself a sale, transferring the property. The party to whom the sale was to be made does not then acquire the property, and cannot by tendering the price acquire a right to possession ; but he may tender the price, or whatever else would be the fulfilment of his obligation, and then sue the owner for his breach of contract, if he will not deliver the goods. But the property in the goods remains in the original owner. For the same reason that the property in the goods must pass by DELIVERY AND ITS INCIDENTS. 115 a sale, there can be no actual sale of any chattel or goods winch have no existence at the time. It may, as we have seen, be a good contract for a future sale, but it is not a present sale. Thus, in contracts for the sale of articles yet to be manufactured, the subject of the contract not being in existence when the parties enter into their engagement, no property passes until the chattel is in a fin- ished state, and has been specifically appropriated to the person giving the order, and approved and accepted by him. As there can be no sale unless of a specific thing, so there is no sale but for a price which is certain, or which is capable of being made certain by a distinct reference to a certain standard. SECTION II. DELIVERY AND ITS INCIDENTS. WHEN a sale is effected, the buyer has an immediate right to the possession of the goods, as soon as he pays or tenders the price ; or at once, without payment, if the sale be on credit. And the seller is bound to deliver the goods. What is a sufficient delivery is sometimes a question of difficulty. In general, it is sufficient, if the goods are placed in the buyer's hands or his actual possession, or if that is done which is the equiva- lent of this transfer of possession. Some modes and instances of delivery we have already seen. We add, that if the goods are landed on a wharf alongside of the ship which brings them, with notice to the buyer, or knowledge on his part, this may be a suffi- cient delivery, if usage, or the obvious nature of the case, make it equivalent to actually giving possession. And usage is of the utmost importance in determining questions of this kind. In general, the rule may be said to be, that that is a sufficient delivery which puts the goods within the actual reach or power of the buyer, with immediate notice to him, so that there is nothing to prevent him from taking actual possession. When, from the nature or situation of the goods, an actual de- livery is difficult or impossible, as in case of a quantity of timber 116 SALES OF PERSONAL PROPERTY. floating in a boom, slight acts, as touching the timber, or even going near it and pointing it out, are sufficient to constitute a delivery, if they sufficiently indicate the transfer of possession. So if the prop- erty which is the subject of the sale is at sea, the indorsement and delivery of the bill of lading, or other instrument of title, is sufficient to constitute a delivery, and by such indorsement and delivery of the bill of lading the property in the goods immediately vests in the buyer ; and he can transfer this to one who buys of him, by his own indorsement and delivery of the bill of lading. Where goods at sea are sold, the seller should send or deliver the bill of lading to the buyer within a reasonable time, that he may have the means of offering the goods in the market. And it has been held that a refusal of the bill of lading authorized the buyer to rescind the salv Until delivery, the seller is bound to keep the goods with ordinary care, and is liable for any loss or injury arising from the want of such care or of good faith. But if he exercises ordinary care and diligence in keeping the commodity, he is not liable for any loss or depreciation of it, unless this arises from some defect which he has warranted not to exist. Thus, in a case in New York, A sold to J3 a certain quantity of beef, B paying the purchase-money in full ; and it was agreed between them that the beef should remain in the cus- tody of A until it should be sent to another place. Some time after, B received a part, which proved to be bad, and the whole was found, on inspection, to be unmerchantable. The court held that, as the beef was good at the time of its sale, the vendee (or buyer) must bear the loss of its subsequent deterioration. If the buyer lives at a distance from the seller, the seller must send the goods in the manner indicated by the buyer. If no direc- tions are given, he must send them in such a way as usage, or in the absence of usage, as reasonable care would require. And gener- ally all customary and proper precautions should be taken to pre- vent loss or injury in the transit. If these are taken, the goods are sent at the risk of the buyer, and the seller is not responsible for any loss. But he is responsible for any loss or injury happening through the want of such care or precaution. And if he sends them by his own servant, or carries them himself, they are in his custody, and, generally, at his risk, until delivery. But if the buyer DELIVERY AND ITS INCIDENTS. 117 distinctly indicates the way or means by which he wishes that the goods should be sent to him, as by such a carrier, or such a line, if the seller complies with his directions, and exercises ordinary care over the goods until they are delivered to the person or line so pointed out, his responsibility ends with this delivery, in the same manner as it would if he delivered the goods into the hands of the owner. This question of delivery has a very great importance in another point of view ; and that is, as it bears upon the honesty, and there- fore the validity, of the transaction. As the owner of goods ought to have them in his possession, and as a transfer of possession usual- ly does, and always should, accompany a sale, the want of this trans- fer is an indication, more or less strong, that the sale is not a real one, but a mere cover. The prevailing rule may be stated thus. Delivery is not essential to a sale at common law ; but if there is no delivery, and a third party, without knowledge of the previous sale, purchases the same thing from the seller, he gains an equally valid title with the first buyer ; and if he completes this title by acquiring possession of the thing before the other, he can hold it against the other. So, also, unless delivery or possession accompany the trans- fer of the right of property, the things sold are subject to attach- ment by the creditors of the seller. And if the sale be completed, and nevertheless no change of possession takes place, and there is no certain and adequate cause or justification of the want or delay of this change of possession, the transaction will be regarded as fraudu- lent and void in favor of a third party, who, either by purchase or by attachment, acquires the property in good faith, and without a knowl- edge of the former safe. This fact, that the thing sold remained in the possession of the seller, might be explained, and if shown to bo perfectly consistent with honesty, and to have occurred for good rea- sons, and especially if the delay in taking possession was brief, the title of the first buyer would be respected. If goods are sold in a shop or store, separated, and weighed or numbered if that be necessary, and put into a parcel, or otherwise made ready for delivery to the buyer, in his presence, and he request the seller to keep the goods for a time for him, this is so far a delivery as to vest the property in the goods in the buyer, and tho 118 SALES OF PERSONAL PROPERTY. sellei becomes the bailee of the buyer. And if the goods are lost while thus in the keeping of the seller, without his fault, it is the loss of the buyer. (In law the word bail means " to deliver." Thus a "bailor" is one who delivers a thing to another; tho " bailee " is the party to whom it is delivered ; and " bailment " is the delivery. The " bail " of a party who is arrested, is he or they to whom the arrested person is delivered or given up, on their agree- ment that he shall be forthcoming when required by law.) In a contract of sale there is sometimes a clause providing that a mistake in description, or a deficiency in quality or quantity, shall not avoid the sale, but only give the buyer a right to deduction or compensation. But if the mistake or defect be great and sub- stantial, and affects materially the availability of the thing for the purpose for which it was bought, the sale is nevertheless void, for the thing sold is not that which was to have been sold. If the buyer knowingly receives goods so deficient or so different from what they should have been that he might have refused them, he will be held to have waived the objection, and to be liable for the whole price ; unless he can show a good reason for not returning them, as in the case of materials innocently used before discovery of the defects, or the like. Thus, where a man bought a chandelier warranted sufficient to light a certain room, and kept it six months, the court did not permit him to return it and refuse payment, although it was not what it had been warranted to be. Sometimes two or three months, or even less, is held too long a keeping to per- mit a subsequent return. But though the buyer cannot return the tiling, yet, when the price is demanded, he may set off whatever damages he has sustained by the seller's breach of contract, and the seller can recover only the value to the buyer of the goods sold, even if that be nothing. But a long delay or silence may imply a waiver of even this right on the part of the buyer. One who orders many things at one time, and by one bargain, may, generally, refuse to receive a part without the rest ; but if he accepts any part, he severs that part from the rest, and rebuts (or removes) the presumption that it was an entire contract ; the buyer will then be held as having given a separate order for each thing, or part, and as therefore bound to receive such parts as are tendered, DELIVERY AND ITS INCIDENTS. 119 unless some distinct reason for refusal attaches to them. If many several things are bought at one auction, but by different bids, and especially if the name of the buyer be marked against each, there is a separate sale to him of each one, and it is independent of the others ; so that he must take and pay for any one or more, although the othors are not what they should be, or cannot be had. If, how- ever, it could be shown by the nature of the case, or by evidence, that the things were so connected that one was bought entirely for the sake of the other, he would net be obliged to take the one unless he could have the other. This rule applies also when the things sold are lots of land. Indeed, the general rule may be stated thus. The question whether it is one contract, so that the buyer shall not be bound to receive any part unless the whole be tendered to him, will be determined by ascertaining from all the facts whether the parts so belong together that it may reasonably be supposed that none would have been purchased if the whole had not been pur- chased, or if any part could not have been purchased. The buyer may have, by the terms of the bargain, the right of redelivery. For sales are sometimes made upon the agreement that the purchaser may return the goods within a fixed, or within a reasonable time. He may have this right without any condition, and then has only to exercise it at his discretion. But he may have the right to return the thing bought, only if it turns out to have, or not to have, certain qualities ; or only upon the happening of a certain event. In such case the burden of proof is on him to show that the circumstances exist which are necessary to give him this right. In either case the property vests in the buyer at once, as in ordinary sales ; but subject to the right of return given him by the agreement. If he does not exercise his right within the agreed time, or within a reasonable time if none be agreed upon, the right is wholly lost, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered. And if during the time the buyer so misuse the property as to materially impair its value, he cannot tender it back, but is liable for the price, 120 SALES OF PERSONAL PROPERTY. SECTION IIL CONTRACTS VOID FOB IIXEGAUTY OR FRAUD. As the law will not compel or require any one to do that which it forbids him to do, no contract can be enforced at law which is tainted with illegality. It may, however, be necessary to consider whether the contract be entire or separable into parts, and whether it is wholly or partially illegal. If the whole consideration, or any part of the consideration, be illegal, the promise founded upon it is void, whether the promise is legal or not. But if the considera- tion is legal, and the promise is in part legal and in part illegal, it is valid for the legal part and may be enforced for that part. Thus, if a master of a vessel agreed to smuggle goods, and in consideration of his doing so the owner promised to pay him one-fourth of his profits, and also to advance twenty dollars a month to his family during a certain time, the master could enforce ' no part of this promise, and recover no damages for any breach of it, because the consideration is illegal. But if, for one thousand dollars paid, the receiver agreed to sell and deliver a quantity of merchandise, and also to assist the buyer in some contemplated fraud, he would be bound to sell and deliver the goods, because the consideration was legal, and this part of the promise was legal, but not to assist in the fraud, because this part of the promise is illegal. I mean to say, that if a whole promise, or any part of a promise that cannot be severed into substantial and independent parts, is illegal, the whole promise is void. But if the consideration is legal, and the promise is legal in part and illegal in part, and that part of the promise which is legal can be severed from that part which is illegal, and then be a substantial promise having a value of its own, this legal part can be enforced. For further remarks upon this subject, how- ever, I refer to the previous chapter on Consideration* Formerly, an agreement to sell at a future day goods which the promisor had not at the time, and had not contracted to buy, and had no notice or expectation of receiving by consignment, was considered open to the objection that it was merely a wager, and CONTRACTS VOID FOR ILLEGALITY OB FRAUD. 121 therefore void. But later cases have admitted it to be a valid con- tract. We have already said, in a preceding chapter, that fraud vitiates and avoids every contract and every transaction. Hence, a wilfully false representation by which a sale is effected ; or a purchase of goods with the design of not paying for them ; or hindering others from bidding at auction by wrongful means ; or selling at auction, and providing by-bidders to run the thing up fraudulently ; or selling " with all faults," and then purposely concealing and dis- guising them, as when a man advertised a ship for sale at auction " with all faults," but purposely put her in a situation where an important fault could not be easily detected ; or any similar act, will avoid a sale. No title or right passes by such sale to the fraudu- lent party ; but the innocent party, whether buyer or seller, may waive the fraud, and insist that the fraudulent party shall not take advantage of his own fraud to avoid the sale. A buyer who is imposed upon by a fraud, and therefore has a ri^'ht to annul the sale, must exercise this right as soon as may be after discovering the fraud. He does not lose the right necessarily by every delay, but certainly does by any considerable and unex- cused delay. A seller may rescind and annul a sale if he were induced to make it by fraud. But he may waive the right and sue for the price. If, however, the fraudulent buyer gets the goods on a credit, and the seller sues for the price before the credit expires, this suit is a con- firmation of the whole sale, including the credit ; or rather it is an entire waiver of his right to annul the sale v and the suit cannot be maintained until the credit has wholly expired. If a party who has been defrauded by any contract brings an action to enforce it, this is a waiver of his right to rescind, and a confirmation of the contract. Or if, with knowledge of the fraud, he offers to perform the contract on conditions which he had no right to exact, this has been held so effectual a waiver of the fraud that he cannot set it up in defence, if sued on the contract. 122 SALES OF PERSONAL PROPERTY. SECTION IV. SATES WITH WARRANTY. A SALE may be with warranty ; and this may be general, or particular and limited. A general warranty does not extend to defects which are known to the purchaser ; or which are open to inspection and observation, unless the purchaser is at the time unable to discover them readily, and relies rather upon the knowledge and warranty of the seller. A warranty may also be either express or implied. It is not implied by the law generally merely from a full, or, as it is called, a sound price. The rule of law, caveat emptor (let the buyer take care), prevents this. But this rule never applies to cases of fraud. As a general rule however, mere silence on the part of the seller is not fraud ; but the usage of the trade will be considered, and if that require a declaration of certain defects whenever they exist, the absence of such declaration is a warranty against such defects. Mere declarations of opinion are not a warranty. Thus, in England, an action was brought on a warranty that certain goods were fit for the China market. The plaintiff produced a letter from the defendant, saying that he had goods fit for the China market, which he offered to sell cheap. Bui the court held that such a letter was not a warranty, but merely an invitation to trade, it not having any specific reference to the good* actually bought by the plaintiff. If these declarations are intended to deceive, and have that effect, they may avoid the sale for fraud. And affirmations of quantity or quality, which are made pending the negotiations for sale, with a view to procure a sale, and have that effect, will be regarded as a warranty ; thus, in New York, it was held that a representation made by a vendor, upon a sale of flour in barrels, that it was in quality superfine or extra-superfine, and worth a shilling a barrel more than common, coupled with the assurance to the buyer's agent that he might rely upon such representation, was a warranty of the quality of the flour; So in England, where upon the sale of a horse the vendor said to the vendee, " You may depend upon it, the horse SALES WITH WARKANTY. 123 is perfectly quiet and free from vice ; " this was held to amount to an express warranty that he was quiet and free from vice. Goods sold by sample are warranted by such sale to conform to the sample ; but there is no warranty that the sample is what it ap- pears to be. Thus, in England, there was a sale of five bags of hops, with express warranty that the bulk answered the samples by which they were sold. The sale was in January ; at that time the samples fairly answered to the commodity sold, and no defect was at that time perceptible to the buyer. In July following, every bag was found to have become unmerchantable and spoiled, by heating, caused probably by the hops having been fraudulently watered by the grower, or some other person, before they were purchased by the defendant. The seller knew nothing of this fact at the time of sale, and the samples were as much damped as the rest ; and it was then impossible to detect it. It was held by the court that there was here no implied warranty that the bulk of the commodity was merchantable at the time of sale, although a merchantable price was given. A breach of warranty does not always authorize the buyer to re- turn the article sold, unless there be an agreement to that effect, or fraud ; but only to sue on the warranty, and recover damages for the breach of it. But if one orders a thing for a special purpose known to the seller, he may certainly return it if it be unfit for that purpose, if he does so as soon as he ascertains its uufitness. The seller of goods actually in his possession as owner is held to warrant his own title by the fact of the sale. But if the property be not in the possession of the vendor, and there be no assertion of ownership by him, no implied warranty of title arises. If a thing is ordered for a special purpose, and is supplied, there is an implied warranty that it is fit for that purpose. In one case, the defendant was a dealer in ropes, and represented himself to be a manufacturer of the article. The buyer, a wine-merchant, applied to him for a crane-rope. The seller's foreman went to the buyer's premises, in order to ascertain the dimensions and kind of rope required. He examined the crane and the old rope, and took the necessary admeasurements, and was told that the new rope was wanted for the purpose of raising pipes of wine out of the cellar, and 10 124 SALES OF PERSONAL PBOPEETY. letting them down into the street ; when he informed the buyer that a rope must be made on purpose. The seller did not make the rope himself, but sent the order to his manufacturer, who employed a third person to make it. It was held that, as between the parties to the sale, there was an implied warranty that the rope was a fit and proper one for the purpose for which it was ordered. And the seller was held responsible, not only for the rope, which broke, but for a pipe of wine which was thereby lost. This principle must not be applied to those cases where an ascer- tained article is purchased, although it be intended for a special purpose. For if the thing itself is specifically selected and purchased, the purchaser takes upon himself the risk of its effecting its purpose. This is illustrated in an 'English case thus : " If a man says to an- other, ' Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he will be liable for the conse- quences ; but if a man says, ' Sell me that gray horse to ride,' and the other sells it, knowing'that the buyer will not be able to ride it, that would not make him liable." If he said, " Sell me that gray horse if he is fit to ride," and the seller sold it knowing he was not fit, he would be liable. It has been much discussed whether a bill of sale, describing the article sold, amounts to a warranty that the article conforms to the description. It seems now to be well settled that it does. In a recent Massachusetts case, there was a bill of sale as follows : " H. & Co. bought of T. W. & Co. two cases of indigo, $272." . The arti- cle sold was not indigo, but principally Prussian blue. No fraud was imputed to the seller, and the article wps so prepared as to de- ceive experienced and skilful dealers in indigo. The naked question was presented, whether the bill of sale constituted a warranty that the article sold was indigo. And the court held that it did. Here the warranty implied by the bill of sale was as to the kind of goods. In another case the bill was, " Sold E. T. H. 2,000 gallons prime quality winter oil" The thing sold was oil, and winter oil ; but not prime quality. And the court held that the bill of sale amounted to a warranty that it was of that quality. In an English case, a vessel was advertised for sale as " copper fastened ; " and this was held to be a warranty that she was so fastened according to the usual understanding of merchants. FOKMS OF BILLS OF SALE. 125 One who sells provisions is always considered in law as warrant- ing that they are good and wholesome. (37.) Bill of Sale of Personal Property. Know all Men by these Presents, That I (name of the seller) in the county of for and in consideration of the sum of to in hand well and truly paid, at or before signing, sealing, and delivery of these presents, by (name of the buyer) the receipt whereof I the said do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said To Have and to Hold the said granted and bargained unto the said heirs, executors, administrators, and assigns, to only proper use, benefit, and behoof forever, and the said does vouch himself to be the true and lawful owner of the goods and effects hereby sold, and to have in himself full power, good right, and lawful authority to dispose of the said in manner as aforesaid, and I do, for my- self, my heirs, executors, and administrators, hereby covenant and agree to warrant and defend the said (the goods sold) unto the said heirs, executors, and administrators, and assigns, against the lawful claims and demands of all persons whomsoever : In "Witness Whereof, the said have hereunto set hand and seal this day of In the year of our Lord one thousand eight hundred and sixty- Executed and Delivered in Presence of (38.) Sill of Sale of Personal Property, with a Condition to make it a Mortgage, with Power of Sale. Know all Men by these Presents, That in consideration of paid by the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and deliver unto the said the following goods and chattels, namely : To Have and to Hold all and singular the said goods and chattels to the said and executors, administrators, and assigns, to then- own use and behoof forever. 126 SALES OF PERSONA L PROPERTY And hereby covenant with the grantee that the lawful owner of the said goods and chattels ; that they are free from all incum- brances, that have good right to sell the same as aforesaid ; and that will warrant and defend the same against the lawful claims and demands of all persons. Provided Nevertheless that if the grantor , or executors, administrators, or assigns, shall pay unto the grantee , or executors, administrators, or assigns the sum of in from this date, with interest semi-annually at the rate of per cent per annum, and until such payment shall not waste or destroy the same, nor suffer them or any part thereof to be attached on mesne process ; and shall not, except with the con- sent in writing of the grantee or representatives, attempt to sell or to remove from the same or any part thereof, then this deed, as also note of even date herewith, signed by the said whereby promise to pay to the grantee or order the said sum and interest at the tunes aforesaid, shall be void. But upon any Default in the performance of the foregoing condition, the grantee , or executors, administrators, or assigns, may sell the said goods and chattels by public auction, first giving days' notice hi writing of the tune and place of sale to the grantor or representatives. And out of the money arising from such sale the grantee , or representatives shall be entitled to retain all sums then secured by this mortgage, whether then or there- after payable, including all costs, charges, and expenses incurred or sustained by them hi relation to the said property, or to discharge any claims or liens of third persons affecting the same, rendering the surplus, if any, to the grantor or executors, administrators, or assigns. And it is Agreed that the grantee , or executors, administra- tors, or assigns, or any person or persons in their behalf, may purchase at any sale made as aforesaid ; and that, until default hi the performance of the condition of this deed, the grantor and executors, administrators, and assigns, may retain possession of the above-mortgaged property and may use and enjoy the same. In "Witness Whereof, the said hereunto set hand and seal and affix and cancel the stamp required by law, this day of hi the year one thousand eight hundred and Signed, Sealed and Delivered in Presence of THE SALE OF ONE'S BUSINESS. 127 SECTION V. THE SAT.K OF ONE'S BUSINESS. SUCH sales are not unfrequent in this country; and the seller al- ways agrees and promises that he will not pursue that trade, business, or occupation again. There are numerous cases, both in English law-books and in our own, which have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, provided the seller agrees to give up his business and never resume it again, at any time or anywhere ; that is, without any limitation of space or time ; because it is against the public interest that a man should be permitted to cast himself out from his business or trade for the rest of his life. But the contract is good, if for a fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be is not certain. The courts say they must be " reasonable," and made in good faith. A contract not to carry on a business in a certain town would undoubtedly be good. So, we should say, would be a bargain not to do so within a certain State. In one case in Massachusetts, a contract not to use certain machines in any of the United States except two (which were Massachusetts and Rhode Island) was held valid, all of the States but two being considered as a sufficiently defined or limited place ; but this was unusual. The courts generally would sanction such a bargain, if it were limited to only a part of the United States ; as to all New England, for example. In such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it might be very difficult to prove specific damages.; and such a bargain, if it were reasonable, would be enforced by law. Such damages, agreed on beforehand, are called liquidated dam- ages. In all cases where damages are demanded, and are not agreed on, they are called unliquidated damages, and it is the duty of the jury to determine, from the evidence before them, what damages the injured party has suffered, and what amount would indemnify him. 128 STOPPAGE IN TEANSITU. CHAPTER XI. HEBE is an instance where a Latin phrase has become English, by general adoption and use. In transitu means " in the transit," and the English phrase may just as well be used ; but the Latin one is used much oftener. "What the whole phrase Stoppage in transitu means, is this. A seller, who has sent goods to a buyer at a distance, and after sending them learns that the buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right of Stoppage in transitu. If the goods are sent to pay a precedent and existing debt, they are not subject to this right. The right exists only upon actual insolvency ; but this need not be formal insolvency, or bankruptcy at law ; an actual inability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the buyer's insolvency, the buyer may at once defeat this stoppage, and reclaim the goods, by payment of the price. So he may, by a tender of adequate security, if the sale be on credit. The stoppage must be effected by the seller, and evidenced by some act ; but it is not necessary that he should take actual possession of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman,* or whoever else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the person who has the immediate custody of the goods ; or if to the principal whose servant has the custody, then at such a time, and under such cir- cumstances, as that he may, by the exercis.e of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee. Goods can be stopped only while in transitu ; and they are in transitu only until they come into the possession of the buyer. Bui STOPPAGE IX TRANSITU. 129 this possession need not be actual, a constructive possession b/ the buyer being sufficient to prevent this stoppage ; as if the goods are placed on the wharf of the buyer, or on a neighboring wharf with notice to him ; or in a warehouse with delivery of the key to him, or of an order on the warehouse-man. But the entry of the goods at the custom-house, without payment of duties, does not terminate the transit. If the buyer has demanded and marked them at the place where they had arrived on the termina- tion of the voyage or journey, personally or by his agent ; or if the carrier still holds the goods, but only as the agent of the buyer ; in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and discharge the lien, and then stop the goods in transitu. If the buyer has, in good faith and for value, sold the goods, " to arrive," before he has received them, and indorsed and delivered the bill of lading, this second purchaser holds the goods free from the first seller's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller may stop the goods, and hold them subject to this security, and need pay only the specific ad- vances made on their credit, or on that very bill of lading, and not a general indebtedness of the first purchaser to the second. A seller who stops the goods in transitu does not rescind the sale, but holds the goods as the property of the buyer ; and they may be redeenfed by the buyer or his representatives, by paying the price for which they are a security ; and if not redeemed, they become the seller's, only in the same way as a pledge might become his ; that is, he may sell them at a proper time, and in a proper manner, and with due notice, so that the buyer may protect his interests. And if the seller then fails to obtain from them the full price due, he has a claim for the balance upon the buyer. If he gets more than the amount due to him, he must pay over the balance to the buyer or his assignees. An honest buyer, apprehending bankruptcy, might wish to return the goods to their original owner; and this he could undoubtedly do, if they have not become distinctly his property, and the seller his creditor for the price. But if they have, the buyer has no 130 GUARANTY. more right to benefit this creditor by suJi an appropriation of these goods, than any other creditor by giving him any other goods. CHAPTER XII. A GUARANTOR is one who is bound to another for the fulfilment of a promise, or of an engagement, made by a third party. This kind of contract is very common. Generally, it is not negotiable ; that is, not transferable so as to be enforced by the transferee as if it had been given to him by the guarantor. No special form or words are necessary to the contract of guaranty ; and if the word " guarantee " be used, and the whole instrument contains all the characteristics of a note of hand, payable to order or bearer, then it is negotiable. Thus, in a case in New York, the instrument was as follows : " For and in consideration of thirty-one dollars and fifty cents received of B. F. Spencer, I hereby guarantee the payment and collection of the within note to him or bearer. Auburn, Sept. 25, 1837. (Signed) Thomas Burns." And it was held negotiable. What negotiable means will be more fully explained in the chapter on Notes of Hand and Bills of Exchange. The guaranty may be enforced, although the original debt cannot ; as, for example, the guaranty of the promise of a wife or an infant ; and sometimes the guaranty of a debt is requested, and given, for the very reason that the debt is not enforceable at law. But, gener- ally, the liability of the principal measures and limits the liability of the guarantor. And if the creditor agree that the principal debt shall be reduced or lessened in a certain proportion, the obligation of the guarantor is reduced by law in an equal proportion. A contract of guaranty is construed somewhat strictly. Thus, a GUARANTY. 131 guaranty of the notes of one, does not extend to notes which he gives jointly with another. A guarantor who pays the debt of the principal may demand from his creditor the securities he holds, although not an assignment of the debt itself, or of the note or bond which declares the debt, for that is paid and discharged. And sometimes the creditor will not be permitted to resort to the guarantor, until he has collected as much as he can from these securities. Unless the guaranty is by a sealed instrument, there must be a consideration to support it. If the original debt or obligation rest upon a good consideration, this will support the promise of guaranty, if this promise was made at the same time with or prior to the original debt. But if that debt or obligation be first incurred and completed, before the guaranty is given, there must be a new consideration for the promise to guarantee that debt, or the guar- anty is void. But the consideration need not pass from him who receives the guaranty to him who gives it. Any benefit to him for whom the guaranty is given, or any injury to him who receives it, is a sufficient consideration if the guaranty be given because of it. A guaranty is not binding unless it is accepted, and unless the guarantor has knowledge of this. But the law presumes this accept- ance in general, when the giving of the guaranty and any action on the faith of it, by the party to whom it is given, are simultaneous. In New York, wherever the guaranty is absolute, notice of its ac- ceptance is unnecessary, unless expressly or irnpliedly required by the offer of guaranty. But, generally, an offer to guarantee a future operation, especially if by letter, does not bind the offerer, unless he has such notice of the acceptance of his offer as would give him a reasonable opportunity of making himself safe. If the liability of the principal be materially varied by the act of the party guaranteed, without the consent of the guarantor, the guarantor is discharged. Many interesting cases have arisen, which v involve this question. Thus, where a bond was given conditioned for the faithful performance of the duties of the office of deputy col- lector of direct taxes for eight certain townships, and the instrument of appointment, referred to in the bond, was afterwards altered, so as to extend to another township, without the consent of the surety, 132 GUARANTY. the Supreme Court of the United States held that the surety was discharged from his responsiblity for moneys collected by his princi- pal after the alteration. Again, in an English case, the facts were, that, in a bond by sureties for the careful attention to business and the faithful discharge of the duties of an agent of a bank, it was pro- vided " that he should have no other business of any kind, nor be connected in any shape with any trade, manufacture, or mercantile copartnery, nor be agent of any individual or copartnery in any man- ner or way whatsoever, nor be security for any individual or copart- nery in any manner or way whatsoever." The bank subsequently, without the knowledge of the sureties, increased the salary of the agent, he undertaking to bear one-fourth part of all losses which might be incurred by his discounts. It was held that this was such an alteration of the contract, and of the liability of the agent, that the sureties were discharged, notwithstanding that the loss arose, not from discounts, but from improper conduct of the agent. The guarantor is also discharged if the liability or obligation be renewed or extended by law. As if a bank, incorporated for twenty years, be renewed for ten more, and the officers and business of the bank go on without change ; the original sureties of the cashier are not held beyond the first term. So a guaranty to a partnership is extinguished by a change among the members, although neither the name nor the business of the firm be changed. But a guaranty, by express terms, may be made to continue over most changes of this kind. A specific guaranty, for one transaction which is not yet exhausted, is not revocable. If it be a continuing or a general guaranty, it is revocable, unless an "express agreement, founded on a consideration, makes it otherwise. A creditor may give his debtor some accommodation or indul- gence, without thereby discharging his guarantor. It would seem just, however, that he should not be permitted to give him any in- dulgence which would materially prejudice the guarantor. Gener- ally, a guarantor may always pay a debt, and so acquire at once the right of proceeding against the party whose debt he has paid. On this ground, it has been held, that where a surety requested the GUABANTr. 133 creditor to proceed against the principal debtor, and the creditor refused to do this, and afterwards the debtor became insolvent and the surety was without indemnity, still, the surety (or guarantor) was not discharged, because he might have paid the debt, and then sued the party whose debt he paid. In New York, it seems to be the law, that, if the surety requests the creditor to proceed against the principal debtor, and he refuses, and the principal debtor after- wards becomes insolvent, the surety will be discharged. If, by gross negligence, the creditor has lost his debt, and has deprived the surety of security or indemnity, the surety must be discharged, un- less he was equally negligent. If a creditor gives time to his debtor, by a binding agreement which will prevent a suit in the mean time, this undoubtedly discharges the guarantor (unless the surety con- sents to the delay) because it deprives him of his power of acquiring a right of proceeding against the debtor, by paying the debt ; for the debtor cannot during that time be sued. If there be a failure on the part of the principal, and the guarantor is looked to, he should have reasonable notice of this. And, gener- ally, any notice would be reasonable which would be sufficient in fact to prevent his suffering from the delay. And if there be no notice, and the guarantor has been unharmed thereby, he is not dis- charged. If a guaranty purport to be official x that is, if it be made by one who claims to hold a certain office, and to give the promise of guar- anty only as such officer, and not personally, the general rule is, that he is not liable personally, provided he actually held that office and had a right to give the guaranty officially. But he would still be held personally, if the promise made, or the relations of the par- ties indicated that credit was given personally to 1)he parties promis- ing, and not merely to them in their official capacity ; or if he had no right to give the promise in his official capacity. A guaranty was given for the price of a cargo of iron ; and the buyer bargained with the seller to pay him more than the fair price, the excess to go towards an old debt. The guaranty was held to be altogether void, because fraudulent ; and could not be enforced even for the fair price. 134 GTJAEANTT. FORMS OF GUARANTY. (39.) Guaranty to be indorsed on a Note. For value received I guarantee the due payment of the within written note. (Date.) (Signature.) (40.) Guaranty of a Note on Separate Paper. For value received I guarantee the due payment of a promissory note ^twd whereby promises to pay to , dollars, in months. (Date.) (Signature.) (41.) Guaranty in Another Way. For value received I guarantee that the within (note or Ml, or that such a note or bill, describing it) will be collected and paid if demanded in due course of law. (Date.) (Signature.) (42.) Letter of Guaranty. Sir, If you will sell to Mr. of the goods he wishes to buy (or the goods may be described) to the amount of (this may be omitted if the guaranty js intended to be of any amount), within year (or days or months, or the time may be omitted if it is not intended to limit it) from the date hereof, I, for value received, hereby promise and guarantee that the price thereof shall be duly paid. (This letter should also state on what terms the goods should be sold, as to credit, delivery, Sfc., unless it is intended to leave all this to the buyer and setter.) (Date.) (Signature.) When goods or stocks or other securities are given as collateral security for borrowed money or any other debt, an instrument is FOKMS OF GTJAKANTY. 135 sometimes given, the intention of which is to guarantee that the collaterals should be and remain sufficient to secure the indebted- ness. It may be in one of the following forms, as the bargain .requires. These are sometimes called " margin guaranties." (43.) Guaranty with Collaterals authorizing Sale, Whereas, I (or we) have deposited with as collateral security for payment at maturity of the following (here describe the debt guaranteed) Now this Witnesseth, That in the event of the non-payment at maturity of any or all of these hereby authorize or assigns, to sell the above (the collaterals) at public or private sale, or at the brokers' board, without notice to and apply proceeds to payment of said and all necessary expenses, holding responsible for any deficiency. In Witness Whereof have hereunto set hand and seal , this day of one thousand eight hundred and (Signature.') (Witness.) (**.) Guaranty with Collaterals, promising Additional Security or authorising Sale. Having Borrowed this Day of (the sun borrowed) on the following collaterals (here describe the collaterals'). I Hereby Agree, in case the market-price of the said stock should fall at any time during the continuance of the loan to an amount insufficient to cover the sum loaned, with per cent margin added thereto, that in such event I will, on demand, deposit additional security to be approved by him, which shall be sufficient to keep the collaterals thus deposited, equal to a sum per cent above said loan, and so as often as said collaterals shall diminish ; and that, in default thereof, the said shall have power to sell at public or private sale, without notice, all, or any of the said securities (as well as any others he may hold), to pay the amount of the said loan, with all interest and charges thereon, and for so doing, I fully release him of all claims, actions, and cav sea thereof. 136 THE STATUTE OF FRAUDS. CHAPTER XIII. r J.Mri K STATUTE OF FTR,A.TJr>S. SECTION L ITS PURPOSE AND GENERAL PROVISIONS. THE Statute of Frauds, so called, was passed in the 29th year of Charles II. (1677) for the purpose of preventing frauds and per- juries, by requiring in many cases written evidence of a contract. In nearly all our States a similar statute has been enacted. But no two of the statutes of the different States agree exactly in all their provisions. They do, however, agree substantially; and we shall give in this chapter the prevailing and nearly universal rules for the construction and application of this statute. It is often of very great importance in commercial transactions. Those pro- visions which especially relate to business law are contained in the fourth and seventeenth sections. By the fourth 'section, it is enacted that "no action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriages of another person ; or to charge any person upon any agreement made upon considera- tion of marriage ; or any contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof: unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." By the seventeenth section, it is enacted that " no contract for the sale of any goods, wares, and merchandises, for the price of t A PEOMISE TO PAY THE DEBT OF ANOTHER. 137 10 sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." The second and fifth clauses of the fourth section, and the whole of the seventeenth, relate to our present subject. The second clause prevents an oral guaranty from being enforced at law ; but if money be paid on one, it cannot be recovered back. SECTION n. A PROMISE TO PAY THE DEBT OF ANOTHER IT is very often difficult to say whether the promise of one to pay for goods delivered to another is an original promise, as to pay for one's own goods, and then it need not be in writing, or a promise to pay the debt or guaranty the promise of him to whom the goods are delivered, and then it must be in writing. If it be a promise to pay the debt of another, it is said to be a collateral promise, and not an original promise. The question may always be said to be : To whom did the setter give, and was authorized to give, credit ? This question the jury will decide, upon consideration of all the facts, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay for them, then the question is, Did this other promise to pay for them as for his own goods ? for then the promise need not be in writing. Or did he promise to pay for them as for the goods of the party receiving them ? and then it is a promise to pay the debt of another, and must be in writing. If, on examination of the books of the seller, it appears that he charged the goods to the party who received them, it will be difficult, if not impossible, for the seller to maintain that he sold them to the other party. But if he charged them to this other, such an entry would be good evidence, and, if confirmed by circumstances, strong evidence that this party was the I 138 THE STATUTE OP FRAUDS. purchaser. But it cannot be conclusive ; for the party not receiv- ing the goods may always prove, if he can, that he was not the buyer, and that he promised only as surety for the party who was the buyer ; and, consequently, that his promise cannot be enforced if not in writing. And, in general, in determining this question, the court will always look to the actual character of the transac- tion, and the intention of the parties. The courts, both in England and in America, have often en- deavored to illustrate this question. Thus, in an early English case, the court said :. " If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, ' If he does not pay you, I will,' this is a collateral undertaking, and void, without writing, by the Statute of Frauds. But if he says, ' Let him have the goods, I will be your paymaster,' this is an Undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant." So, in a case in Maryland, the court said : " If B gives credit to C for goods sold and delivered to him, on the promise of A to ' see him paid,' or ' to pay him for them if C should not,' in that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a col- lateral undertaking to pay that debt [and must be in writing] , ha being only liable as a surety. But where the party undertaken for is under no liability himself, the promise is an original undertaking of the party promising, and binding upon him without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, as if A says to him, * Let C have goods to such an amount, and I will pay you,' and the credit is given to A, in that case C being under no liability, there is nothing to which the promise of A can be collateral ; but A being the immediate debtor, it is his original undertaking, and not a promise to answer for the debt of another ; " and therefore need not be in writing. "Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his ppomise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another. If an old debt is extinguished by a new promise, this AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR. 139 promise is considered as an original one and not within the require- ment of the statute. If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt ; for although that promise must be in writing, the other may be oral. SECTION m. AN AGREEMENT NOT TO BE PERFORMED WITHIN A TEAR. UNDER the fifth clause in the fourth section, it is held that an agreement which may be performed within the year is not affected by the statute, as the words, " that is not to be performed within one year," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the intervention of extraordinary circumstances, although in point of fact its execution was extend- ed much beyond the year. So where one agreed orally, for one guinea, to give another a number of guineas on the day of his mar- riage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was therefore bound by it. So where one agreed orally never to go into the sta- ging business in a certain place, as this contract could last only while the promisor lived, and he might die within a year, he was held to be bound by it. SECTION IV. THE FORM AND SUBJECT-MATTER OF THE AGREEMENT. THE " agreement " must be in writing ; but generally, in this country, the writing need not contain or express the consideration, which may be proved otherwise. Nor need it be all on one piece 11 140 THE STATUTE OF FKAUDS. of paper. For it is sufficient if on several pieces, as in several let- ters, which, however, relate to one and the same business, and may fairly be read together as the statement of one transaction. Bat it must appear from the papers that they are so connected. The " signature " inay be in any part of the paper, the begin- ning, middle, or end, except in those of our States in which the statute has the word " subscribed " instead of " signed ; " in which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient ; hence, a printed shop-bill, with the name of the seller, as usual, at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods. Shares in railroad companies, in manufacturing companies, and, generally, in all corporations and joint-stock companies, are " goods, wares, or merchandises," within the meaning of the statute, in this country, and an agreement for their purchase and sale must there- fore be in writing. It may be further remarked, that the operation of the statute has been always limited to such contracts as have not been executed in any substantial part, and therefore remain wholly executory. For if they have been executed substantially in good part, they are binding, although only oral. In Massachusetts, the Statute of Frauds also provides (3d section) that no action shall be brought to charge any person upon, or by reason of, any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any other person, unless it be made in writing, and signed by the party to be charged. And there are provisions substantially similar to this in the statutes of Maine and Vermont. Instead of the " 10 " in the seventeenth section of the English Statute, the sum mentioned in the Statutes of Frauds of the differ- ent States, is, generally, from thirty to fifty dollars. HOW PAYMENT MAY BE MADE. 141 CHAPTER XIV. TIEIINTMEIR. SECTION I. HOW PAYMENT MAT BE MADE. THE obligations which arise out of most mercantile contracts are to be satisfied by payment of money. The parties may always agree to any specific manner of payment, and then that becomes obligatory on the creditor as well as the debtor. As, by deducting the amount to be paid from a debt due to the debtor either from the creditor or from any one else. Or the amount may be made, by agreement, payable by a bill or note. If the debt is to be paid by a bill, it must be such a bill as is agreed upon, and this must be tendered by the debtor. But the word " bill " does not necessarily mean an " approved bill ; " and if this phrase be itself used, it means only a bill to which there is no reasonable objection ; that is, one which ought to be approved. In the absence of any especial agreement, the only payment known to the law is by cash, which the debtor must pay when it is due, or tender to the creditor. The tender should, properly, be in cash, or in bills made a legal tender by law, and must be so if that is required ; but a tender in good and current bank-bills is sufficient, unless it be objected to because they are not money. Generally, if the tender be refused for any express and specific reason, the creditor cannot afterwards take advantage of any infor- mality, to which he did not object at the time of the tender. The tender may be of a larger sum than is due. But a tender of a larger sum, if made with a requirement of change or of the balance, is not good. Nor must it be accompanied with a demand or condition that any instrument or document shall be delivered ; nor 142 PAYMENT AND TENDER. that the sum tendered shall be received as all that is due ; nor that a receipt in full shall be given. But a simple receipt for so much money paid may be demanded. We have already seen that, if a receipt be given, it is only strong evidence of payment, but not con- clusive. And even if it be " in full of all demands," it is still open to explanation or denial by evidence* A lawful tender, and payment of the money into court, is a good defence to an action for the debt. But the creditor may break down this defence by proving, that, subsequently to the tender, he de- manded the money of the debtor, and the debtor refused to give it. If the buyer or debtor give, and the seller or creditor receive, a negotiable note or bill for the sum due, this is not anywhere abso- lute and conclusive payment. In Maine and in Massachusetts the law presumes that such note or bill is payment -of the debt, unless a contrary intention is shown. In nearly all the States of this Union but those two, and in the Supreme Court of the United States, it is not payment, unless the intention of the parties that it should be so is shown. In New York, it has been held that the debtor's own promissory note is not payment, even if it be intended or expressly agreed that it should be. If a creditor, who receives from his debtor any bill or note, negotiates or sells it for value to a third party, without making himself liable, the bill or note was payment, although it be dishonored, because it has been good to the debtor, and he. has received the avails of it ; and if the law did not hold that the bill had paid the debt, he could sue the original debt, and then he would have the value of the bill, or payment, twice. Not so, however, if he negotiates it in such a way that he is himself liable upon it ; for if he pays it, he loses what he sold it for, unless he can recover his debt from his debtor. SECTION n. APPROPRIATION OF PAYMENT. IP one who owes several debts to his creditor makes to him a general payment, it may be an important question to which of those debts this payment shall be appropriated ; for some of them may oe HOW PAYMEXT MAY BE MADE. 143 secured, and others not, or some of them may carry interest, and others not, or some of them be barred by the Statute of Limitations, and others not. There is no doubt that the payor may appropriate his payment, at the time of the payment, at liis own pleasure. And if he does not exercise this right, the receiver may, at the time of payment, make the appropriation. But if neither party does this at that time, and at a future period the question comes up as to which party may then make the appropriation, or rather, how the law will then appropriate the payment, it is then the better and prevailing rule, that, if the court can ascertain, either from the words used, or from the circumstances of the case, or from any usage, what was the intention and understanding of the parties at the time of the payment, that intention will be carried into effect. And if this can- not be ascertained, then the court will direct such appropriation of the payment as will best protect the rights and interests of both parties, and do justice between them. And one reason for this conclusion would be, that the law would presume that this was the original intention of the parties. A very general rule, which would indeed be always adopted in the absence of especial reason to the contrary, is, to apply the payment first to the oldest debt, until that is satisfied, and then go on applying the payment to the other debts in the order of their age. If A owes a debt to B, on B's own account, and another debt to B as trustee for somebody, and A pays B a sum of money without appropriating it, B cannot apply it all to the debt due him on his own account ; but must divide it between that debt and the debt due to him as trustee, in proportion to their respective amounts. Because it is his duty as trustee to take as good care of the debts due to him for another, as of those due to him on his own account. We have spoken of a " bill or note ; " and notes are sometimes called bills ; so bank-notes are often called bank-bills. But the legal meaning of " bill " is always a draft or order on somebody to pay money. A note is & promise to pay. See chapter on Notes and Bills. 144 EECEIPTS AND EELEASES. CHAPTER XY. IlIEClilEPTS A RECEIPT is only an acknowledgment that a sum of money has been paid. It may be in one word, as when, under a bill of parcels, the seller writes the word " paid," and signs it. More commonly the words are, " Received Payment." Formerly it was usual to add the words " Errors Excepted." Then it grew customary to write the initial letters " E. E." instead of the words ; but all this is unnecessary. If there be an error in the receipt, or in the paper receipted, the law permits the party injured by it to explain and correct the error, although there be no express reservation or excep- tion of errors. Receipts are of all degrees of fulness, from the single word " paid," to those which relate the particulars for which the receipt is given, and the manner in which the money was paid, or the thing delivered. I give the following forms : (45.) (Date.) This day I have received from . dollars. (Signature.') (46.) (Date.) This day I have received from . dollars, on account of (Signature.) (47.) (Date.) This day the following (papers, or other articles, enumerating and de- scribing them) were delivered to me by , (add, on account of, or in execution of, the promise or bargain, describing it; and, if they are delivered for any particular purpose, describe that), and I hereby acknowledge the receipt of them (Sigrtature.) FORMS OF RELEASES. 145 Every receipt is open to evidence, not only to explain it, but to contradict it. Herein releases differ from receipts. A release gives up some right or claim which the rcleasor had against the releasee. It is iii the nature of a contract, and therefore cannot be controlled or contradicted by evidence, unless on the ground of fraud. But if its words are ambiguous, or may have either of two or more mean- ings, evidence is receivable to determine the meaning. Like every other contract, it requires a consideration, and is of no force without one. But here conies in the rule of law as to a seal. The general rule is, as has been stated before, a seal implies, or is the same as, the assertion of a consideration ; and therefore it is always customary to put a seal to a release. But a release, even with a seal, if it can be shown to have been given without any considera- tion whatever, can be set aside. It is always best to state in the release itself that it was given for a consideration, and what the consideration is. A release properly drawn, and duly signed and sealed, is a complete defence to an action grounded on any of the debts or claims released. The following forms are for releases of various kinds : (48.) A General Release. Know all Men by these Presents, That I, (the name of the rdeaser) of for and in consideration of the sum of , to me paid by of , have remised, released, and forever discharged, and by these presents do, fo r me, my heirs, executors, and administrators, remise, release, and forever discharge the said his heirs, executors, and administrators, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judg- ments, extents, executions, claims, and demands whatsoever, in law and in equity, which against the said 1 ever had, now have, or which I, my executors or administrators hereafter can, shall, or may have, for, upon, or by reason of, any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In Witness Whereof, &c. 146 KECELPTS AND RELEASES. (49.) A Mutual General Release by Indenture. This Indenture, Made between of and of , -witnessed!, that the said doth, by these presents remise, release and forever quit claim, unto the said , all and all manner of actions, (as before ;) and this indenture further witnesseth, that the said by these presents, doth remise, release, and forever quit claim, unto the said all and all manner of actions, (as before). In Witness Whereof, &c. (50.) A Release from Creditors to a Debtor, under a Composition. To all Persons to whom these Presents may come, we who have hereunto set our hands and seals, creditors of of , send greeting. Whereas the said is indebted to us his said creditors, in several sums of money, which he is not able fully to satisfy and dis- charge ; we therefore have agreed, and do hereby agree, to accept of the sum of in full payment and satisfaction of all the debts, owing to us respectively at the date hereof, by and from the said , which is paid by or for the said (the name of the debtor) to (the names of the persons to whom the money is to be paid for the creditors releasing) * and assignees by virtue of a commission, of bankrupt awarded against the said , for the use of, and to the intent that the same may be shared and divided amongst us his said creditors, seeking relief under the said commission, in proportion and according to the debts to us severally due and owing : Now therefore know ye, that for the , consideration aforesaid, each of us, the said creditors who have hereunto set our hands and seals, for him and herself, his and her heirs, executors, and copartner?, doth by these presents, remise, release, and forever discharge the said his heirs, executors, and administrators, of and from our said several debts, and all and all manner of action and actions which against the said , each and every of us the said creditors now hath, or which each and every of our heirs, executors, or administrators respectively, hereafter may, can, or ought to have, claim, or demand, for, upon, or by reason of, the said several and respective debts to us severally due and owing, or for or by reason of any other matter, cause, or thing whatsoever from the beginning of the world. In Witness Whereof; &c. * The words following in Italic may be omitted according to circumstances. FOKriS OF EELEASES. H7 (51.) A Release of all Legacies. Know all Men by these Presents, That I of widow, have remised, released, and forever quit claimed, and by these presents do for me unto of , gentleman, executor of the last will and testament of late of , deceased, and to the heirs, executors, and administrators of the said , all legacies, gifts, bequests, sum and sums of money and demands whatsoever, bequeathed and given unto me the said , in and by the last will and testament of , deceased, and all and all manner of actions and suits, sum and sums of money, debts, duties, reckon- ings, accounts, and demands whatsoever, which I the said ever had, now have, or that I, my executors or administrators, can or may, at any time or times hereafter, have, challenge, or demand against the said his executors, administrators, or assigns, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In Witness Whereof, &c. (520 A Release of a Bond, it being Lost. To all to whom these Presents may come, (name of r denser) sendeth greeting. Whereas by his bond or obligation, bearing date (recite the bond), as by the said bond or obligation, and the condition thereof may appear : And whereas the sum of mentioned in the said bond, with all the interest for the same, is paid and satisfied unto me the said , in full discharge for the said bond or obligation : And whereas the said bond or obligation is lost, or at present mislaid, so that it cannot be found to be delivered up to the said , to be cancelled : Now know ye, that I the said for the consideration aforesaid, have remised, released, and quit claimed, and by these presents do, for me, my executors and administrators, remise unto the said his heirs, executors, and administrators, as well the said recited bond or obligation, as all such sums of money as therein are mentioned to be due and payable, unto me the said my executors, administrators, or assigns ; and also all actions, suits, cause and causes of action, accounts, debts, reckonings, sums of money, judgments, executions, and demands whatsoever, which I, the said ever had, now have, or that I, my executors, administrators, or assigns, or any of us, can or may have, for or against the said his executors or administrators, for, or by reason of, the said recited bond or obligation, or any other 148 BECEIPTS AND RELEASES. matter, cause, or thing whatsoever, concerning the same, from the beginning of tlie world to the day of the date hereof. In "Witness "Whereof I the said have hereunto set my hand and seal this day of (Signatures.) (Seals.) In Presence of (The following covenant may be inserted before " Inmtneu.") And I, the said for me, my executors, ,' do covenant , to and -with the said , his , that if I the said , my executors, , or any of us, at any time hereafter, do find or can obtain the said recited bond or obligation, then I, the said , my executors , or some of us, shall and will, within two months next after the said obligation shall be found as aforesaid, deliver, or cause to be delivered, the said bond or obligation, unto the said his . . (63.) A Release of a Judgment* This Indenture, Made the day of in the year one thousand eight hundred and between of the second part, "Whereas, Judgment was rendered on the day of in the year one thousand eight hundred and hi an action hi the between plaintiff and defendant in favor of the said against the said for the sum of as appears by the Now this Indenture "Witnesseth, That the said part of the first part in consideration of the sum of to duly paid at the time of the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, released, discharged and set over, and by these presents do grant, release, discharge and set over, unto the said part of the second part, the following described premises, to wit : Together with the hereditaments and appurtenances thereto belonging; and all the right, title and interest of the said part of the first part, of, in and to the same, to the intent that the lands hereby conveyed may be released and dis- charged from the said above-mentioned judgment, and from all lien or incumbrance that has attached to the same, by reason of the recovery of the said judgment, as free and clear in all respects as though said judgment had not been rendered. To have and to hold, the lands and premises hereby released and conveyed, to the said FORMS OF RELEASES. 149 part of the second part heirs and assigns, to their only proper use, benefit and behoof forever, free, clear and discharged of and from all lien and claim, under and by virtue of the judgment aforesaid. In Witness Whereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. (Signatures?) (Seals.") In Presence of (54.) A Release of a Condition. Know all Men by these Presents, That I, of , for divers good considerations me hereunto moving, have remised, released, and quit claimed, and by these presents, for me, my executors, administrators, and assigns, do unto of , his heirs, executors, administrators, and assigns, as well one proviso or condition and all and every the sum and sums of money, specified in the same proviso or condition, contained or comprised in one pair of indentures of bearing date , made between me the said , of the one part, and the said of the other part, and also all and all manner of actions and suits, cause and causes of actions and suits, for or concerning the said proviso or condition. In Witness Whereof, I the said have hereunto set my hand and seal this day of (Signature.') (Seal.) In Presence of (55.) A Release of a Covenant contained in an Indenture of Lease. To all Persons to whom these Presents may come, (name of releaser) sendeth greeting. Whereas in and by an indenture of lease, bearing date made between , of the one part, and the said of the other part, the'.'e is contained a covenant in these words following, viz. (recite the covenant verbatirr, as therein contained) whereunto relation being had, it doth at large appear : Now know ye, that I, the said , for divers good causes and considerations, me hereunto moving, have remised, released, and quit claimed and by these presents for me do unto the said , his the said covenant, grant, clause, agreement, and article, before rehearsed or recited, and all and every other matter, thing, and things specified, declared, and contained in the same covenant, clause, and agreement, and all the benefit, profit, advantage, and commodity, that by any manner of means, may or might arise, grow, come, or happen to me the said , for or by reason of the same covenant, clause, article, or 150 EEOEIPTS AND RELEASES. agreement, or any word, sentence, matter, thing, or things therein contained, so that the said his executors and assigns, and every of them, from henceforth forever, shall be fully acquitted, released, and discharged against me the said my executors, and administrators, and every of us, of, from, and for the said covenant, grant, clause, article, and agreement before iihearsed or recited, and of, from, and for, every thing and things, touching the same (but this present release shall not in anywise extend to any other covenant, clause, or article in the said indenture contained). In Witness Whereof, I the said have hereunto set my hand and seal this day of (Signature.) (Seal.) In Presence of (56.) JL Release in Extinguishment of a Power* To all Persons to whom these Presents may come, Now know ye, that I, the said , pursuant to the said agreement, and for divers good causes and considerations me hereunto moving, have released, extinguished, and discharged, and by these presents do fully and absolutely release, extinguish, and discharge, the said recited power for raising the said sum of as aforesaid, and all the lands therein comprised, or subject thereto, BO that I, the said shall not, nor will, at any time or tunes here- after, raise the same, or any part thereof, or hereafter charge the said lands with the payment thereof, or any part thereof. In Witness Whereof I the said have hereunto set my hand and seal this day of (Signature.') (Seal.) In Presence of (57.) A Release from a Lessor to a Lessee (upon his surrendering his Lease) from the Covenants therein. To all Persons to whom these Presents may come, (name ofreleaser) sends greeting : Whereas the said by his indenture of lease, bearing date , did demise unto a messuage in at a certain rent, for a certain term of years, of which about years are yet to come and undetermined, in which said lease are contained covenants for repairing the said premises, and other covenants, on the part of the said to be performed : And whereas, by agreement between the said and the said hath delivered up the said recited lease, and surrendered the same, and all his interest and term in and to the said house and premises : Isow FOEMS OF RELEASES. 151 therefore know ye, that the said , in consideration tnereof, doth hereby, for himself, his heirs, executors and administrators, remise, release, and forever discharge the said his executors and administrators, of and from all and every the covenants and agreements, in the said recited lease contained, by and on the part and behalf of the said his to be done and performed, and from all actions, suits, costs, charges, payments, damages, claims, and demands whatsoever, hi law and equity, for or concerning the same in any manner of wise. In Witness Whereof^ I the said have hereunto set my hand and seal this day of (Signature.) (Seal.) In Presence of (58.) A General Release of Dower. To all to whom these Presents shall come, (name of releaser) send greeting : Know ye, that the said the party of the first part to these presents, for and in consideration of the sum of lawful money of the United States, to her in hand paid at or before the ensealing and delivery of these presents, by of the second part, the receipt whereof is hereby acknowledged, hath granted, remised, released, and forever quit claimed, and by these presents doth grant, remise, release, and forever quit claim, unto the said party of the second part, heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property, claim and demand whatsoever, La law ad equity, of her, the said party of the first part, of, in, and to (here describe the estate the dower in ivhich is released) so that she, the said party of the first part, her heirs, executors, administrators or assigns, nor any other person or persons, for her, them, or any of them, shall not have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, title, claim or demand whatsoever, of, in or to the same, or any part or parcel thereof, in whosoever hands, seisin, or possession the same may or can be, and thereof and therefrom shall be utterly barred and excluded forever by these presents. . In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of hi the year of our Lord one thousand eight hundred and S'gnature.') (Seal) In Presence of (59.) A Release of Dower to the Heir Know all Men by these Presents, That I relict of late , as well for and La consideration 152 RECEIPTS AND RELEASES. of to me paid, at or before , by my son , the receipt whereof I do hereby acknowledge, and for the love and affection which I have to my said son, have granted, remised, released and forever quit claimed, and by these presents do unto the said hie heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property claim, and demand whatsoever, in law and in equity, of me the said of, in, and to (a description of the parcel of land in which dower is released) so that neither I, the said my heirs, executors, or administrators, nor any other person or persons for me, them, or any of them, shall have, claim, challenge, or demand, or pretend to have any dower or thirds, or any other right, title, claim, or demand, of, in, or to the said premises, but thereof and there- from, shall be utterly debarred and excluded, forever, by these presents. In "Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.') In Presence of (60.) A ^Release of Dower in Consideration of an Annuity given by Will. To all Persons to whom these Presents may come, (name of rehaser) widow, relict and residuary legatee of late of , deceased, sendeth greeting. Whereas the said , in and by his last will and testament, duly signed, sealed, published, and declared in my presence and with my approbation, bearing date , did settle and secure unto and upon me the said , an annuity of to be paid unto me half yearly, by equal payments, in lieu and full satisfaction of the dower or thirds at common law, which I might otherwise have, claim, or be entitled unto, out of all and every the lands, tenements, and hereditaments whatsoever, of my said late husband, deceased, or of, in* to, or out of the reversion or remainder, rents, issues, and profits thereof: Now know ye, that I the said for and in consideration of the said annuity so secured to me as aforesaid, and hi pursuance and part performance of the said last will and testament of my said late husband, do hereby declare myself fully satisfied and contented therewith, and do hereby remise, release, and forever quit claim unto of , and of , trustees, appointed in and by the said last will and testament of my said late husband (in their actual possession and seisin now being) their executors , all and all manner of dower hi and to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, forever, by these presents. FOKMS OP RELEASES. 153 In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of hi the year of our Lord one thousand eight hundred and (Signature.') (Seal) In Presence of (61.) A Release of Dower where the Husband of tJie Widow joins in the Deed. MSS. Know all Men by these Presents, That (name of husband) of and (name of wife} his wife, in her right, in consideration of paid them by of , the receipt whereof they hereby acknowledge, have granted, remised, released, and for- ever quit claimed, and by these presents do unto the said his heirs and assigns forever, all the right which the said hath to dower or thirds, of and in (here describe the estate') whereof uor late husband (name of former husband) late died seized, situate, , which she claims as of the endowment of the said deceased, and all the right, title, interest, and claim whatsoever, which the said and have, or either of them hath, or by law might have, of, in, and to the same : To have and to hold the same to the said and his heirs and assigns for- O ever ; and the said and for themselves, their heirs, executors, and administrators, do hereby covenant with the said and his heirs and assigns, that he and they shall henceforth forever, have and quietly enjoy the released premises, without any claim or demand had or made, or to be had or made by them, or any persons, claiming, or who may claim the same or any part thereof, by, from, or under them or their heirs. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) In Presence of (62.) A Release of a Trust. To all to whom these Presents may come, (name ofreleaser) sendeth greeting. Whereas, by indenture bearing date , made between (here recite the deed) in which said indenture the said doth hereby declare, that his name was only used in trust, for the benefit and ixihoof of of : Now know ye, that I, the wad , hi discharge of the trust reposed hi me, at the request 154 BECEIPTS AND RELEASES. of the said , have remised, released, and surrendered, assigned, and set over, and by these presents, for me, my executors and administrators, do freely and absolutely remise unto the said his executors , all the estate, right, title, interest, use, benefit, privilege, and demand whatsoever, which I the said have, or may have or claim, of, or to the said premises, or of and in any sum of money, or other matter or thing whatsoever, in the said indenture contained, mentioned, and expressed, so that neither I the said my executors cr adminis- trators, or any of us, at any time hereafter, shall or will ask, claim, challenge, or demand any interest or oth&r thing, in any manner whatsoever, by reason or means of the said indenture, or any covenant therein contained, but thereof and therefrom, and from all actions, suits, and demands, wk'^h I, my executors, administrators, or assigns, may have concerning the same, shall be utterly excluded and forever debarred, by these presents. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) In Presence of (63.) A Release of Right to Lands. Know all Men by these Presents, That I (name ofreleaf.r) of , in consideration of to me paid by (name of releasee) the receipt , have remised, released, and fcrever quit claimed, and by these presents do unto the said and his heirs, all the estate, right, title, interest, use, trust, claim, and demand whatsoever, both at law and in equity, which I, the said have, of, in, to, or out of, all and singular the following described parcel of land (here describe the land) so that neither I the said , my heirs or assigns, or any other person or persons hi trust for me or them, or in my or their name or names, or hi the name, right, or stead of any of them, shall or will, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or de- mand, any right, title, or interest, property, claim, and demand, of, hi, to, or ouf of the same , or any of them, or any part thereof, but that I the raid , my heirs and assigns, and every of them, from all estate, ri{ ht, title, interest, property, claim, and demand, of, in, to, or out of the said , or any of them, or any part thereof, are, is, and shall be, by these presents fore er excluded and debarred. In Witness Whereof, The said party of the first part to these prese: Is hath hereunto set her hand and seal, the day of hi the year of our Lord one thousand eight hundred and (Signature.) (Sea ) In Presence of FORMS OF EELEASES. 155 (64.) A Release bettveen two Traders on Settling Accounts. Whereas sundry accounts, current and otherwise, and divers dealings in trade have been subsisting for a long time past, between of trader, and of trader, which said accounts and dealings, the said and have balanced and adjusted, whereby it appears that nothing remains due from the one to the other ; and whereas, therefore, to prevent any future disputes, concerning the said accounts and dealings, and to confirm the said adjustment, the said and have mutually agreed to give reciprocal releases to each other. Now know all men by these presents, that the said (one of the parties) (for the considerations abovesaid, and to prevent all future disputes) for himself, his executors, and administrators, doth remise, release, and forever quit claim unto the said (the other parly) his all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, extents, execu- tions, claims and demands whatsoever, both at law and in equity, which against the said his the said now hath or ever had, on account of then* said mutual dealings, or for or by reason of any other cause, matter, or thing whatsoever, from the beginning of the world to the day of the date of these presents. And the said (the other party) (for the considerations abovesaid, and to pre- vent all future disputes) for himself, his executors, and administrators, doth remise, release, and forever quit claim unto the said (the other party), his all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, extents, execu- tions, claims and demands whatsoever, both at law and in equity, which against the said his the said now hath or ever had, on account of their said mutual dealings, or for or by reason oi any other cause, matter, or thing whatsoever, from the beginning of the world to tlr*. day of the date of these presents. In Witness "Whereof* We have hereunto set our hands and seals, this day of in the year (Signatures.) (Seals.) Jn Pretence of 12 156 NOTES OF HAND, BILLS OF EXCHANGE, ETC. CHAPTER XVI. NOTES OF TTATVP ANT> DSELOL.8 OF DETS1CHLAJVGE, CHECKS. * SECTION I. THE PURPOSE OF, AND THE PARTIES TO, SUCH PAPERS. THESE instruments are usually negotiable. By negotiable paper is meant evidence of debt which may be transferred by indorse- ment or delivery, so that the transferee or holder may sue the same in his own name, and as if it had been made to him originally ; or, in other words, it means paper, that is, bills of exchange or promis- sory notes, or drafts, or checks payable to the order of a payee, or to bearer. The rules of law on the subject of negotiable paper are more exact and technical than those of any other department of Mercan- tile Law. They reach, on many points, an extreme nicety, which makes it difficult to express them intelligibly to persons who do not already possess some familiarity with the subject. All difficulty of this kind could have been easily avoided by me, by omitting any notice of these nice points. But it was thought better to mention them, one and all, for these are the things an intelligent man of business should know ; and although the rules stated, especially those in reference to presentment, demand, notice, and some other subjects, may seem to be intricate and difficult, they require, it is believed, only careful consideration to be fully understood. Where and when bills of exchange were invented is not certainly known. They were not used by any ancient nations, but have been employed and recognized by most commercial nations for some centuries. A still more recent invention is the promissory negoti- able note, which, in this country, for inland and domestic purposes, has taken the place of the bill of exchange very generally. Besides COMMON FOEM OF A BILL OF EXCHANGE. 157 these two, bills of lading, and some other documents, have a kind of negotiability, but it is quite imperfect. The utility of bills and notes in commerce arises from the fact that they represent money, which is the representative of the market value of every thing ; and many of the peculiar rules respecting negotiable paper are derived from this representation, and intended to make it adequate and effectual. A negotiable bill of exchange^ is a written order whereby A orders B to pay to or his order, or to bearer, a sum of money, absolutely and at a certain time. (65.) Common Form of a Bill of Exchange. New YorJc, January 5, 1869. Value received, please pay to C or order, dollars, in days (or months) after sight (it may be after date), 071 account of (Signed) A To B A is the Drawer, B the Drawee, and C the Payee. If the bill is presented to B, and he agrees to obey the order, he " accepts " the bill, and this he does in a mercantile way by writing the word " Ac- cepted " across the face of the bill, and also writing his name below this word ; then the drawee becomes the Acceptor. If C, the payee, chooses to transfer the paper and all his rights under it to some other person, he may do this by writing his name on (usually across) the back ; this is called Indorsement, and C then becomes an In- dorser. The person to whom C thus transfers the bill is an Indorsee. The indorsee may again transfer the bill by writing his name below that of the former Indorser, and the Indorsee then becomes the second Indorser ; and this process may go on indefinitely. If the added names cover all the back of the note, a piece may be wafered on to receive more. In France, this added piece is called " allonge" and this word is used in some law-books, but not by our merchants 158 NOTES OF HAN^', BILLS OF EXCHANGE, ETC. (66.) Common Form of a Promissory Note. New York, January 5,1869. Value received I promise to pay B or order, dollars, in days (or monthi, or on demand) from date* (Signature.) It is quite important to have a clear idea of the difference between the parties to a note, and the parties to a bill of exchange. If A makes a note to B, then A promises to pay, and is the promisor, and B is the promisee, or payee. But if it be payable to B or order, B may write his name across the back, that is, may indorse it, and is an indorser. And if he directs, over his signature on the back, that the note be paid to any person in particular, such payee is now an indorsee. But when a bill is drawn, nobody promises, in words, to pay it. A orders B to pay to C. If B, when requested, says he will not do as ordered, the law supposes A, the drawer, to have promised that he would pay if B did not. If B " accepts," the law now supposes that B promises C to pay the bill to him. Now B, being the acceptor, is held by the law'just as a maker of a note is, because he is supposed to have promised in the same way. A, the drawer, is held just as the first iudorser of a note is held, because he is supposed to have promised to pay if B did not. If the bill was negotiable, that is, payable to C, or his order, then C may indorse the bill, and although his name is the only one on the back of the bill, he is treated in law only as second indorser, because the drawer is bound in the same way as a first indorser. And if D then puts his name below C's, he is treated as third iudorser, and so on. For the rights, obligations, and duties of all these parties, see the subsequent sections. We repeat, that a negotiable promissory note is a written promise to pay to a certain person or his order, or to bearer, at a certain time, a certain sum of money ; and he who signs this is called the Maker or the Promisor ; the other party is the Promisee or Payee. The * It is bett to write the words, " from date," although they are often omitted, and the law con- strues the note as If they were written. WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. 159 payee of such a note has the same power of indorsement as the payee of a bill of exchange. If the note be not payable " to order," nor to " bearer," it is then not negotiable ; these words " or order " or " to bearer " being the words which make it negotiable. The maker of a negotiable note holds, as has been said, the same position as the acceptor of a bill, the drawer the same as the first indorser of a note ; that is, a party holding a note and seeking payment of it looks first to the maker, and then to the indorser ; one holding a bill looks first to the drawee or acceptor, and, on his failure, to the drawer. Neither indorsement, nor acceptance, nor making, is complete until delivery and reception of the bill, or note, or acceptance ; and a defendant may show that there was no legal delivery of the paper. The law of negotiable paper first defines a bill or note, and deter- mines what instruments come under these names, and then describes and ascertains the duties and obligations of all the parties ^we hav named above. We shall follow this order. SECTION n. WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE OB BELL. A WRITTEN order or promise may be perfectly valid as a written contract or promise, but, although made " to order," will not be ne- gotiable, unless certain requisites of. the law-merchant are complied with. The difference between a note that is negotiable and one that is not, is very important in many respects. One of these is as to the operation of the trustee process, or foreign attachment, or garnishee process, as it is sometimes called. If A owes B a hundred dollars, C, a creditor of B, may trustee A (to use the common phrase), and A must then pay to C what he owes to B. And this is so, even if A have given his note to B for the hundred dollars, if the note be not negotiable, that is, not to B or order. But if the note be negotiable,' A cannot be trusteed. The reason is, that if he is obliged to pay the money to C, and B should indorse the note to D for value, and D take it honestly, A must pay the note to D, and so would have to 160 NOTES OF HAND, BILLS OF EXCHANGE, ETC. pay it twice. But if the note is not negotiable, B cannot indorse it, and A is safe in paying the money over. 1, The Promise must be absolute and definite. The promise of the note, and the order of the bill, must be absolute. Words expressive of intention only do not make a promissory note, and a mere re- quest without an order does not make a bill of exchange. But no one word, and no set of words, are absolutely necessary ; for if from all the language the distinct promise or positive order can be in- ferred, that is sufficient. The time of payment is usually written in a bill or note ; if not, it is payable on demand. The time of payment must not depend on a contingency. In fact, any contingency apparent on the face of the instrument prevents it from being a negotiable note ; and the hap- pening of the contingency does not cure it. And the payment promised or ordered must be of a definite sum of money. A negotiable bill of exchange or promissory note must be payable in money only, and not in goods or merchandise, or property of any kind, or by the performance -of any act. If payable in " current funds," or " good bank-notes," or " current bank-notes," this should not be sufficient on general principles, and according to many au- thorities ; some courts, however, construe this as meaning notes convertible on demand into money, and therefore as the same thing as money, and call the note negotiable. A bill or note may be written upon any paper or proper substitute for it, in any language, in ink or pencil. A name may be signed or indorsed by a mark ; and, though usually written at the bottom, it may be sufficient if written in the body of the note ; as, " I, A B, promise," &c. ; unless it can be shown that the note was incomplete, and was intended to be finished by signature. If not dated, it will be considered as dated when it was made ; but a written date is prima facie evidence (this means evidence which may be overcome by opposite and better evidence, but until so overcome is sufficient) of the time of making. The amount is usually written in figures at the corner or bottom. If the sum is written at length in the body, and also in figures at the corner, the written words control the figures, and evidence is not admissible to show that the figures were FORM OF A NOTE. 161 right aiid the words inaccurate. But in an American case, a prom- issory note, expressed to be for " thee hundred dollars," and in figures in the margin, $300, was held to be a good note for three hundred dollars, if the maker when he signed it intended " three " when he wrote " thee ; " and whether such was his intention was a question for the jury. And the omission of such a word as " dol- lars," or " pounds," or " sterling," may be supplied, if the meaning of the instrument is quite clear. It has been just said that any contingency apparent on the face of the instrument prevents it from being a negotiable note. Hence it is not safe to write in the body of the note, or in connection with the promise, any condition or contingency. But, if what is so written in no way affects the promise itself, the note may still be negotiable. Thus, in some parts of this country, persons who sell a machine, or other thing, on a credit, sometimes take a promissory note pay- able to the seller or order, and containing an additional clause, providing, that, until the note is paid, the property in the thing sold (or the ownership of it) shall be and remain in the seller Such notes are often made in the following form : (67.) Form of a Note given for a Chattel sold, with a Condition pre- serving the Ownership of the Seller. $ (Place and date) 18 On the day of 18 the subscriber whose P. 0. is , County of and State of , promise to pay , or order dollars at the First National Bank in with interest at per cent per annum until paid. And it is further agreed that the title to the (reaper) for which this note is given shall remain in said (the seller) until this note is fully paid ; and, if not paid when due, I will pay all expenses incurred in collecting. Value received ( Witness.') (Signature.) On the back of this note is sometimes the following statement : 162 NOTES OF HAND, BILLS OF EXCHANGE, ETC. Statement made for the Purpose of obtaining Credit. I own acres of land in my own name in the Town of County of and State of which is worth at a fair valuation, $ It is not incumbered by mortgage or otherwise, except the amount of $ and the title is perfect in me in all respects. I have stock and personal property to the amount of $ over and above my debts and liabilities. The above property being worth over and above my debts, liabilities and exemptions at least FIVE TIMES the amount of the within note. The question has arisen whether such a note is negotiable. 'Sup- pose the seller of the chattel, who is payee of the note sells the noto and indorses it for value to an innocent indorsee ; then the buyer finds that he was cheated, and puts in this defence of fraud when he is sued on the note by the indorser. He can make this defence if this note be not negotiable ; but he cannot make it if it be negotiable. I should say it was negotiable ; and that the only effect of the con- dition or provision annexed to the promise, was, that it operated much as a mortgage of the thing, by the buyer, back to the selbr, to secure the payment. 2. The Payee must be designated. The payee should be dis- tinctly named, unless the bill or note be made payable to bearer. If it can be gathered from the instrument, by a reasonable or necessary construction, who is the payee, that is enough. The note may be made payable to the promisor or his order ; that is, a man may say, I promise to pay to my own order; and such note is nothing until the promisor not only signs it, but indorses it. A note indorsed in blank is always transferable by delivery, just as if it were made payable to bearer ; because any holder may write over the indorsement an order to pay to himself. Indorsements are either indorsements in blank, by which is meant the name of the indorser and nothing more, or indorsements in full, which are so called when over the name of the indorser is written, " pay to A B." (By A B we mean the name of the person to whom the note or bill is indorsed.) These two kinds of indorsements are fully explained subsequently in section VI. of this chapter. A note to the order of the promisor himself, and indorsed by him in blank, is therefore WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. 163 tuach the same thing as a note to bearer. But it is quite commonly used in our mercantile cities, because the holder can always pass it away without indorsing if he chooses, or can put his name on it as second indorser if he likes to. If the indorsee be named, and the note get into the possession of a wrong person of the same name, this per- son neither has nor can give a title to it. If the name be spelt wrong, evidence of intention is receivable. If a father and son have the same name, and either of them has possession of the note and indorses it, this would be evidence of his rightful ownership. If neither payable to bearer, nor to the maker's or drawer's order, nor to any other person, it would be an incomplete and invalid instrument. A note to a fictitious payee, with the same name indorsed by the maker, would undoubtedly be held to 'be the maker's own note, either payable to bearer, or to himself or order, by another name, and so indorsed. If a blank be left in a bill for the payee's name, a bond fide holder may fill it with his own, the issuing of the bill in blank being an authority to a bond fide holder to insert the name. And if the name of the payee be not the name of a person, as if it be the name of a ship, the instrument is payable to bearer. A note payable to different persons in the alternative, that is, to one or the other of them, is not a good promissory note. A bill or note "to the order of" any person is the same as if to him " or his order," and may be sued by him without indorsement. 3. Of Ambiguous and Irregular Instruments. The law in rela- tion to protest and damages makes it sometimes important to distin- guish between a promissory note and a bill of exchange, because, by law, a foreign bill of exchange, if unpaid, should be protested, but not a promissory note ; but it is a common practice to protest promis- sory notes when they are not paid. The rule in general is, that, if an instrument be so ambiguous in its terms that it cannot be certainly pronounced one of these to the exclusion of the other, tfie holder may elect and treat it as either. As if written, " Value received, in three months from date, pay the order of H. L. $500. (Signed) A. B. ; " and an address or memorandum at the bottom, " At Messrs. E. F. & Co." 164 NOTES OF HAND, BILLS OF EXCHANGE, ETC. 4, Of Bank-Notes. Bank-notes or bank-bills are promissory notes of a bank, payable to bearer ; and, like all notes to bearer, the prop- erty in them passes by delivery. They are intended to be used as money ; and, while a finder, or one who steals them, has no title him- self against the owner, still, if he passes them away to a bond fide holder, that is, a holder for value without notice or knowledge, such owner holds them against the original owner. And if the bank pays them in good faith on regular presentment, the owner has no claim. They pass by a will bequeathing money. They are a good tender, unless objected to at the time because not money. Forged bills, given in payment, are a mere nullity. Bills of a bank which has failed, but of which the failure is unknown to both parties, are now, generally, put on the footing of forged or void bills. But if the receiver of them, by holding them, and by a delay of returning or giving them up, injures the payer and impairs his opportunity or means of idemnity, the receiver must then lose them. 6. Of Checks on Banks. A check on a bank is undoubtedly a bill of exchange ; but usage and the nature of the case have intro- duced some important qualifications of the general law of bills in its application to checks. A check requires no acceptance, because a bank, after a customary or reasonable time has elapsed since deposit, and while still in possession of funds, is bound to pay the checks of the depositors. The drawer of a check is not' a surety, as is the drawer of a bill, but a principal debtor, like the maker of a note. Nor can a drawer complain of any delay whatever in the presentment ; for it is an absolute appropriation, as between the drawer and the holder, to the holder of so much money in the banker's hands ; there it may lie at the holder's pleasure. But delay is at the holder's risk ; for if the bank fails after he could have got his money on the check, the loss is his. If the bank before he presents his check pay out all the money of the drawer on other checks, he may then look to the drawer. If one who holds a check as payee, or otherwise, transfers it to another, he has a right to insist that the check shall be presented in the course of the banking hours of that day, or at farthest the next ; that is, he is not responsible for the failure of the bank to pay, unless WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. 165 it is BO presented, provided it would then have been paid. 1 And if the party receiving the check live elsewhere than where the bank is, it seems that he should send it for collection the next day ; and if to an agent, the agent should present it, at latest, in the course of the day after he receives it. If the check be drawn when the drawer neither has funds in the bank, nor has made any arrangement by which he has a right to draw the check, the drawing it is a fraud, and the holder may bring his action at once against the drawer, without presentment or notice. Checks are seldom accepted. But they are often marked by the bank as good ; and this binds the bank as an acceptor. Checks are usually payable to bearer, but may be and often are drawn payable to a payee or his order ; for this guards against loss or theft, because the check will not be paid unless the payee writes his name on it ; and it gives to" the drawer, when the check is paid and returned by the bank to him, what is the same as the receipt of the payee. Generally, a check is not payment until it is cashed ; then it is payment if the money was paid to the credit- or, or the check had passed through his hands. A bank cannot maintain a claim for money lent and advanced, merely by showing the defendant's check paid by them, because the general presump- tion is, that the bank paid the check because it was drawn by a depositor against funds. While the death of a drawer countermands his check, if the bank pay it before notice of the death reaches them, they are discharged. This would seem to be almost a necessary inference from the general purpose of banks of deposit, and the use which merchants make of them. If a bank pay a forged check, it is so far its own loss, that the bank cannot charge the money to the depositor whose name was forged. But the bank could recover the money back from one who presented a forged check, and was paid, provided the payee, if inno- cent, loses no opportunity of indemnity in the mean time, and can be put in as good a position as if the bank had refused to pay it. But if somebody must lose, the bank should, because it is the duty of the bank to know the writing of its own depositors. If it pay a check of which the amount has been falsely and fraudulently ic 166 NOTES OF HAND, BILLS OF EXCHANGE, ETC creased, it can charge the drawer only with the original amount. But if the drawer himself causes or facilitates the forgery, as by so carelessly writing it, or leaving it in such hands, that the forgery or alteration is easy, so that it may be called his fault, and the bank is innocent, then the loss falls on the drawer. If many persons, not partners, join in a deposit, they must join in a check ; but if one or more abscond, a court of equity will permit the remainder to draw the money. 6. Of Accommodation Paper. An accommodation bill or note is one for which the acceptor or maker has received no consideration, but lias lent his name and credit to accommodate the drawer, payee, or holder. Of course he is bound to all other parties, precisely as if there were a good consideration ; for, otherwise, it would not be an effectual loan of credit. But he is not bound to the party whom he thus accommodates ; on the contrary, that party is bound to take up the paper, or to provide the accommodation acceptor, or maker, or indorser, with funds for doing it, or to indemnify him for taking it up. And if, before the bill or note is due, the party accommodated provides the party lending his credit with the necessary funds, he cannot recall them ; and if he becomes bankrupt, they remain the property of the accommodation acceptor, or maker, who, if sued on the bill or note, can charge the party accommodated with the ex- pense of defending the suit, even if the defence were unsuccessful, if he had any reasonable ground of defence, because the defence was for the benefit of the party accommodated ; inasmuch as he must repay the accommodation party if he pays the bill or note. 7, Of Foreign and Inland Bills. Bills of exchange may be foreign bills, or inland bills. Foreign bills are those which are drawn or payable in a foreign country ; and for this purpose, each of our States is foreign to the others. Inland bills are drawn and payable at home. Every bill is, on its face, an inland bill, unless it purports to be a foreign bill. If foreign on its face, evidence is admissible to show that it was drawn at home. If a bill be drawn and accepted here, but afterwards actually signed by the drawer abroad, it is a foreign bill. If a foreign bill be not accepted, or be WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. 167 not paid at maturity, it should at once be protested by a notary- public. Inland bills are generally, and promissory notes frequently, protested ; but this is not generally required by the law. The holder of a foreign bill, after protest for non-payment, or for non- acceptance, may sue the drawer and indorser, and recover the face of the bill, and, in addition thereto, his damages, which damages on protest are generally adjusted in this country by various statutes, which give greater damages as the distance is greater ; and an established usage would supply the place of statutes if they were wanting. 8. Of the Law of Place. The different States of the Union, are, as to questions arising under Mercantile Law, foreign countries as to each other. Important questions sometimes arise in the case of foreign bills (as well as in some other cases), dependent upon what is called the Law of Place, the Latin phrase for which, Lex Loti, is often used. In general, every contract is to be governed by the law of the place where it is made. Thus, if a bill is drawn in France, and there indorsed in a way which is sufficient here, but insufficient there, the indorsement would here be held void. But if a contract entered into in one place is to be performed in another, as in the case of a note dated, or a bill drawn, in one State, but payable in another, the prevailing rule is, that the law of the place where the note is payable construes and governs the contract. Therefore, if a bill be drawn in England, payable in France, the protest and notice of dishonor must be regulated by the law of France. But one who makes such a note may elect, for many purposes, which law shall govern it. Thus, if he makes it in New York, and it is payable in Boston, he may promise to pay the legal interest of New York, and will be bound to this payment in Boston, although the legal interest in Boston is less ; but if there be no such express promise, the interest payable will be that of the place where the note is payable. While the law of the place of the contract interprets and con- strues it as a debt, the law of the place where it is put in suit which is called the Law of the Forum, or Court determines all questions as to remedy ; that is, all questions which relate to the 168 NOTES OF HAND, BILLS OP EXCHANGE, ETC. legal means of recovering the debt. Thus, in general, the statutes of limitation of the place of the court are applied. But if a cause of action relating to any special subject-matter which has a definite location, as a parcel of land has, be barred by a statute of limitations where the subject-matter is situated, it is barred every- where. A promisor, not subject to arrest in the country where the note is made, may be arrested under the laws of the country where the note is sued. It will always be presumed, in the absence of testimony, that the law of a foreign country is the same with that of the country in which the suit is brought. If a difference in this respect is a ground of defence, or of action, it must be proved by evidence. SECTION in. THE CONSIDERATION OF NEGOTIABLE PAPEK. 1. Exception to the Common Law Role, in the Case of Negotiable Papeit By the common law of England and of this country, as we have seen, no promise can be enforced, unless made for a con- sideration, or unless it be sealed. But bills and notes payable to order, that is, negotiable, are, to a certain extent, an exception to this rule. Thus, an indorsee cannot be defeated by the promisor showing that he received no consideration for his promise ; because the promisor made an instrument for circulation as money ; and it would be fraudulent to give to paper the credit of his name, and then refuse to honor it. But as between the maker and the payee, or between indorser and indorsee, and, in general, between any two immediate parties, the defendant may rely on the want of considera- tion ; that is, if an indorsee sues the maker, and the maker says he had no consideration for the note, this is no defence ; but if the in- dorsee sues his indorser, and the indorser shows that the indorsee paid him nothing, this would be a good defence ; and so it would be if the payee sued the maker. So, if a distant indorsee has notice or knowledge, when he buys a note, that it was made without con- sideration, he cannot recover on it against the maker, unless it was an accommodation note, or was intended as a gift. THE CONSIDERATION OF NEGOTIABLE PAPER. 169 Thus, if A, supposing a balance due from him to B, gives B his negotiable note for the amount, and afterwards discovers that the balance is the other way, B cannot recover of A ; nor can any third or more distant indorsee who knows these facts before buying the note. But if A gives B his note wholly without consideration, for the purpose of lending him his credit, or for the purpose of making him a gift to the amount of the note, and C buys the note with a full knowledge of the facts, he will nevertheless hold A, although B could not. If the note was bought honestly for a fair price, the buyer should recover its whole amount. Every promissory note imports a consideration ; that is, none, in the first place, need bo proved ; but when want of consideration is relied on in defence, and evidence is given on one side and the other, the burden of proof is on the plaintiff to satisfy the jury that consideration was given. If an indorser, sued by an indorsee, shows that the note was originally made in fraud, he may require the holder to prove that he paid consideration ; but if this be proved, he must pay the whole of the note, unless he was himself defrauded by the holder. And if an accommodation note be discounted in violation of the agreement of the party accommodated, the holder can still recover, provided he received the note in good faith, and for valuable consideration. 3. Of " Value Received." " Value received " is usually written, and therefore should be ; but is not necessary. If not written, it will be presumed by the law, or may be supplied by the plaintiff's proof. If expressed, it may be denied by the defendant, and dis- proved. And if a special consideration be stated in the note, the defendant may prove that there was no consideration, or that the consideration was different. If " value received " be written in a note, it means received by the maker from the payee ; if the note be payable to the bearer, it means received by the maker from the holder. In a bill, " value received " means that the value was received from the payee by the drawer. But if the bill be payable to the drawer's own order, then it means received by the acceptor from the drawer. 3, What the Consideration may be, A valuable consideration 170 NOTES OF HAND, BILLS OF EXCHANGE, ETC. may be either any gain or advantage to the promisor, or any loss or injury sustained by the promisee at the promisor's request. A pre- vious debt, or a fluctuating balance, or a debt due from a third person, might be a valuable consideration. So is a moral considera- tion, if founded upon a previous legal consideration ; as, where one promises to pay a debt barred by the statute of limitations, or by infancy. But a merely moral consideration, as one founded upon natural love and affection, or the relation of parent and child, is no legal consideration. No consideration is sufficient in law if it be illegal in its nature ; and it may be illegal because, first, it violates some positive law, as, for example, the Sunday law, or the law against usury. Secondly, because it violates religion or morality, as an agreement for future illicit cohabitation, or to let lodgings for purposes of prostitution, or an indecent wager ; for any bill or note founded upon either of these would be void. Thirdly, if distinctly opposed to public policy ; as an agreement in restraint of trade, or injurious to the revenue, or in restraint of marriage, or for procurement of mar- riage, or suppressing evidence, or withdrawing a prosecution for felony or public misdemeanor. SECTION IV. THE RIGHTS AND DUTIES OF THE MAKER. THE maker of a note or the acceptor of a bill is bound to pay the same at its maturity, and at any time thereafter, unless the action be barred by the statute of limitations, or he has some other defence under the general law of contracts. As between himself and the payee of the note or bill, he may make any defences which he could make on any debt arising from simple contract ; as want or failure of consideration ; payment, in whole or in part ; set-off ; accord and satisfaction ; or the like. The peculiar characteristics of negotiable paper do not begin to operate, so to speak, until the paper has passed into the hands of third parties. Then, the party liable on the note or bill can make none of these defences, unless the time or manner THE EIGHTS AND DUTIES OF THE HOLDER. 171 in which it came into the possession of the holder lays him open to these defences. But the law on this subject may better be pre- sented in our next section. SECTION V. THE RIGHTS AND DUTIES OP TELE HOLDER OF NEttOTIAKLE PAPER 1. What a Holder may do witli a Bill or Note. An indorsee has a right of action against all whose names are on the bill when he received it. And if one delivers a bill or note which he ought to indorse and does not, the holder has an action against him for not indorsing, or may proceed in a court of equity to compel him to in- dorse. If a bill comes back to a previous indorser, he may strike out the intermediate indorsements and sue in his own name, as indorsee ; but he has, in general, no remedy against the intermedi- ate parties, because, if he made them pay as indorsers to him, they would make him pay as indorser to them. If, however, the circum- stances are such that they, if compelled to pay, would have no right against him as an indorser to them, as, for example, if he indorsed it " without recourse," then he may have a claim against them. The holder of a bill indorsed and deposited with him for collec- tion, or only as a trustee, can use it only in conformity with the trust. And if the indorsement express that it is to be -collected for the indorser' s use, or use any equivalent language, this is notice to ar./ one who discounts it; and the party discounting the paper against this notice will be obliged to deliver the note, or pay its con- tents if collected, to the indorser. Thus, Mr. Sigourney, a merchant in Boston, remitted to Williams, a London banker, for collection, a bill of exchange indorsed by him, and over his name was written, " Pay to Williams or order for my use." Williams had the bill dis- counted for his own benefit by his bankers, and failed ; and the English court held that the indorsement showed that the bill did not belong to Williams, and that the discounters had no right to dis- count it for him ; and they were obliged to pay the amount of it to Sigourney. 13 172 NOTES OF HAND, BILLS OF EXCHANGE, ETC. 2. Of a Transfer after Dishonor of Negotiable Paper, So long as a note remains due, everybody has a right to believe that it has not been paid, and will be paid at maturity, and may purchase it in that belief. But as soon as it is overdue, the date shows it, and every person must know that it is either paid, and so extinguished, or that it has not been paid, and therefore is dishonored, and that there may be good reasons why it was not paid, or good defences against it. He therefore now takes it at his own peril ; and there- fore a holder who took the note after it became due is open to many of the defences which the promisor could have made against the party from whom the holder took it ; because, having notice that the bill or note is dishonored, he ought to have ascertained whether any, and, if so, what defence could be set up. So, too, if an indorsee takes the note or bill before it is due, but with notice or knowledge of fraud or other good defence which could be made against his indorser if he sued it, it is a general rule that the same defence may be made against him. A promissory note payable on demand is considered as intended to be a continuing security, and therefore as not overdue, unless very old indeed, without some evidence of demand of payment and refusal. But it is not so with a check ; for this should be presented without unreasonable delay. 3, Of Presentment for Acceptance, It is most important to the holder of negotiable paper to know distinctly what his dutiep are in relation to presentment for acceptance or payment, and notice to others interested in case of non-acceptance or non-payment. It is always prudent for the holder of a bill to present it for acceptance without delay ; for if it be accepted, he has new security ; if not, the former parties are immediately liable ; and it is but just to the drawer to give him as early an opportunity as may be to with- draw his funds or obtain indemnity from a debtor who will not honor his bills. And if a bill is payable at sight, or at a certain period after sight, there is not only no right of action against anybody until presentment, but, if this be delayed beyond a reasonable time, the holder loses his remedy against all previous parties. And although the question of reasonable time is generally one only of THE EIGHTS AND DUTIES OF THE HOLDEE. 173 law, yet, in this connection, it is treated as so far a question of fact, that it is submitted to the jury. There is no certain rule determin- ing what is reasonable time in this respect. If a bill of exchange be payable on demand, it is not like a promissory note, but must be pre- sented within a reasonable time, or the drawer will be discharged. A holder may put a bill payable after sight into circulation, without presenting it himself; and in that case, if a subsequent holder presents it, a longer delay in presentment would be allowed than if the first holder had kept it in his own possession. The presentment should be made during business hours ; but in this country they extend through the day and until evening, except- ing in the case of banks. Any distinct usage established where the presentment is made would probably be received in evidence, and permitted to affect the question. Ill health, or other actual impediment without fault, may excuse delay on the part of the holder ; but the request of the drawer to the drawee not to accept does not excuse non-presentment for ac- ceptance. Presentment for acceptance should be made to the drawee him- self, or to his agent authorized to accept. And when it is presented, the drawee may have a reasonable time to consider whether he will accept, during which time the holder is justified in leaving the bill with him. And this time would be as much as twenty-four hours, unless the mail goes out before. And if the holder gives more than twenty-four hours for this purpose, or the mail goes out before, he should inform the previous parties of it. If the drawee has changed his residence, the holder should use due diligence to find him ; and what constitutes due or reasonable diligence is a question of fact for a jury. And if he be dead, the holder should ascertain who is his personal representative, if he has one, and present the bill to him. If the bill be drawn upon the drawee at a particular place, it is re- garded as dishonored if the drawee has absconded, so that the bill cannot be presented for acceptance at that place. 4, Of Presentment for Demand of Payment The next question relates to the duty of demanding payment; and here the law is much the same in respect both to notes and to bills. 174 NOTES OF HAND, BILLS OF EXCHANGE, ETC. The universal rule of the law-merchant is, that the indorsers of negotiable paper are supposed to agree to pay it only if the maker or previous indorsers do not, and provided due measures are taken by the holder to get it paid by those who ought, in the first place, to pay it. Every holder of negotiable paper can hold it as long as he likes, and not lose his claim against the maker of a note, or the ac- ceptor of a bill, unless he holds it more than six years, and the Sta- tute of Limitations bars his claim. The reason is, that the maker or acceptor promises directly, and not merely to pay if another does not. But every indorser of a note or bill, and every drawer of a bill, only promises to pay if a maker or acceptor or some previous indorser does not. If there is a bill of exchange with six indorsers, the last promises in law to pay it only if the acceptor, the drawer, and the five previous indorsers do not pay. He has therefore a right that a demand according to law should be made against every one of these persons, and that their refusal to pay should be notified to him, forthwith, so that he may secure himself if he can. And the law-merchant is very rigorous and precise in defining what demand should be made by the holder, and when and how demand should be made on every prior party, in order to hold any subsequent party ; and also as to what notice of the demand and refusal of the prior party should be given to any subsequent party to whom the holder looks for payment. A demand is sufficient if made at the usual residence or place of business of the payer, either of himself, or of an agent authorized to pay ; and this authority may be inferred from the habit of paying, especially if the agent be a child, a wife, or a servant. The demand should not be made in the street, although a demand then would probably be held good, unless objected to at the time because made there. When a demand is made, the bill or note should be exhibited ; and if lost, a copy should be exhibited, although this is not abso- lutely necessary. And when the payer calls on the holder, and declares to him that he shall not pay, and desires him to give notice to the indorsers, this constitutes a demand and refusal, provided this declaration be made at the maturity of the paper ; but not if it was made before maturity, because the payer may change his intention. Bankruptcy or insolvency of the payer is no excuse for non-de- THE BIGHTS AND DUTIES OF THE HOLDER. 175 mand ; although the shutting up of a bank may be regarded as a refusal to all their creditors to pay their notes. Absconding of the payer is generally a sufficient excuse ; but if the payer has shut up his house, the holder must nevertheless inquire after him, and find him, if he can by proper efforts. Even in case of absconding, it is always better to go through the formality of making a demand at the payer's last residence or place of business ; and this is held neces- sary in Massachusetts. If the payer be dead, demand should be made at his house, unless he have personal representatives, and in that case, of them. And if the holder die, presentment should be made by his personal representatives ; that is, by his executor or administrator. If the drawer has no effects in the hands of the drawee, and has no arrangement or understanding which gives him a right to draw, non-presentation for payment is not a defence which he can make if sued on the bill. Impossibility of presenting a bill for payment, without the fault of the holder, as the actual loss of a bill, or the like, will excuse some delay in making a demand for payment ; but not more than the circumstances require. And the mere mistake of the holder as to the time, place, person or manner, is no excuse, because he has no right to make mistakes to the injury of other people. In this country, all negotiable paper payable at a time certain is entitled to grace, which here means three days' delay of payment, unless it be expressly stated and agreed that there shall be no grace ; and a presentment for payment before the last day of grace is pre- mature, the note not being due until then. If the last day of grace falls on a Sunday, or on a legal holiday, the note is due on the Saturday, or other day before the holiday. But if there be no grace, and the note falls due on a Sunday, or other holiday, it is not paya- ble until the next day. Generally, if a bill or note be payable in or after a certain num- ber of days from date, sight, or demand, in counting these days, the day of date, sight, or demand is excluded, and the day on which it falls due included. And the law would supply the word "/r0?w," &c., if the word were not used. Thus, a note dated January 1, and payable in " twenty days " would be held pay- 176 NOTES OF HAND, BILLS OF EXCHANGE, ETC. able in twenty days (and three days' grace) after the day of the date ; that is on the 24th. If a note is made payable in one or more months, this means calendar months, whether shorter or longer. If made on the 18th of December, and payable in two months, it is payable on the 13th of February and grace, that is, on the 16th. But if so many days are named, they must be counted, whether they are more or less than a month. Thus, if the above note were paya- ble in sixty days, it would be due on the llth and grace, or on the 14th of February. If dated 18th January, and payable in sixty days, it would be due on the 14th of March, with grace, or on the 17th. Although payment must be demanded promptly, that is, on the day on which it is due, it need not be done instantly ; a holder has all the business-part of the day in which the bill or note falls due to make his demand in. Bills and notes payable on demand should be presented for pay- ment within a reasonable time. If said to be " on interest," this strengthens the indication that they were intended to remain for a time unpaid and undemanded. But to hold indorscrs, they should still be presented within whatever time circumstances may make a reasonable time ; and this is such a time as the interests and safety of all concerned may require ; and it may be a few days, or even one or two weeks. A bill or note in which no time of payment is expressed is held to be payable on demand. And evidence to prove it otherwise is inadmissible. The holder of a check should present it at once ; for the drawer has a right to expect that he will ; it should, therefore, be presented, or forwarded for presentment, in the course of the day following that in which it was received, or, upon failure of the bank, the holder will lose the remedy he would otherwise have had against the person from whom he receives it. If the drawer of the check had no funds, he is liable always. Every demand of payment should be made at the proper place, which is either the place of residence or of business of the payer, and within the proper hours of business. If made at a bank aftc r hours of business, if the officers are there, and refuse payment for want of funds, the demand is sufficient. THE EIGHTS AND DUTIES OP THE HOLDER. 177 A note payable at a particular place should be demanded at that place ; and a bill drawn payable at a particular place should be de- manded there, in order to charge the drawer of a bill, and the iridorsers of a bill or note. But in this country an action may be maintained against the maker or acceptor without such demand ; but the defendant may discharge himself of damages and costs be- yond the amount of the paper, by showing that he was ready at that place with funds. If a note is payable at any of several different places, presentment at any one of them -will be sufficient. If a bill which is drawn payable generally, be accepted payable at a partic- ular place, the holder may and should so far regard this as non- acceptance, that he should protest and give notice. But if this limited acceptance is assented to and received, it must be complied with by the holder, and the bill must be presented for payment at that place, or the drawer and indorsers are discharged. If payable at a banker's, or at the house or counting-room of any person, and such banker or person becomes the owner at maturity, this is demand enough ; and if there are no funds deposited witli him for the payment, this is refusal enough. If any house be desig- nated, a presentment to any person there, or at the door if the house be shut up, is enough. If this direction be not in the body of the note, but added at the close, or elsewhere, as a memorandum, it is not part of the contract, and should not be attended to. If the payer has changed his residence, he should be sought for with due diligence ; and, if he has absconded, it is better to make the demand at his last place of residence or business. Where a bill or note is not presented for payment, or not pre- sented at the time, or to the person, or in the place, or in the way, required by law, all parties but the acceptor or maker are dis charged, for the reasons before stated. 5. Of Protest and Notice. If a bill of exchange be not accepted when properly presented for that purpose, or if a bill or note, when properly presented for payment, be not paid, the holder has a further duty to perform to all who are responsible for payment. In case of non-payment of a foreign bill, there should be a regular protest by 178 NOTES OF HAND, BILLS OF EXCHANGE, ETC a public notary ; but this is not strictly necessary in the case of an inland bill, or a promissory note, whether foreign or inland But in practice, all bills if not accepted, and all bills and notes if unpaid, are protected. By a foreign bill is meant a bill drawn in one State or country, and payable in another. But notice of non-payment should be given to .all antecedent parties, equally, and in the same way, in the case of both bills and notes. The demand and protest must be made according to the laws of the place where the bill is payable. It should be made by a notary- public, who should present the bill himself; but, if there be no notary-public in that place or within reasonable reach, it may be made by any respectable inhabitant in the presence of witnesses. The protest should be noted on the day of demand and refusal , and may be filled up afterwards, even so late as at the trial. The loss of a bill is not a sufficient excuse for not protesting it. But a subsequent promise to pay by a drawer or indorser is held to imply, or be equal to, a previous protest and notice to him. The notarial seal is, of itself, evidence of the dishonor of a foreign bill, but not of an inland bill. And no collateral statement in the certificate is evidence of the fact therein stated ; thus the state- ment by a notary, that the drawee refused to accept or pay because he had no funds of the drawer, is no evidence of the absence of such funds. Notice must be given even to one who has knowledge. No par- ticular form is necessary ; it may be in writing, or oral ; all that is absolutely essential is, that it should designate the note or bill with sufficient distinctness, and state that it has been dishonored ; and also that the party notified is looked to for payment ; but it has been held that the notice to the party bound to pay, when given by the immediate holder of the bill, sufficiently implies that he is looked to. Notice of protest for non-payment is sufficient notice to indorsers of demand and refusal. How distinctly the note or bill should be de- scribed cannot be precisely defined. It is enough if there be no s ich looseness, ambiguity, or misdescription as might mislead a man of ordinary intelligence ; and if the intention was to describe the true nota, and the party notified was not actually misled, this would always be enough. The notice need not state for whom payment is THE EIGHTS A>TD DUTIES OF THE HOLDER. 179 demanded, nor where the note is lying ; and even a misstatement in this respect may not be material if it do not actually mislead. No copy of the protest need be sent to indorsers ; but information of the protest should be given. If the letter be properly put into the post-office, any miscarriage of the mail does not affect the party giving notice. The address should be sufficiently specific. Only the surname, as "Mr. Ames," especially if sent to a large city, would not, in general, be enough. If a letter, however generally directed, can be shown to have reached the right person at the right time, it is sufficient. The postmarks are strong evidence that the letter was mailed at the very time these marks indicate ; but this evidence may bo rebutted, that is contradicted. A notice not only may, but should, be sent by the public post. It may, however, be sent by a private messenger ; but is not sufficient if it do not arrive until after the time at which it would have ar- rived by mail. It may be sent to the town where the party resides, or to another town, or to a more distant post-office, if it is clear that he may thereby receive the notice earlier. And if the notice is sent to what the sender deems, after due diligence, the nearest post- office, this is enough. If the parties live in the same town, notice should not be sent by mail. The notice should be sent either to the place of business, or to the residence, of the party notified. But if one directs a notice to be sent to himself elsewhere than at home, it may be so sent, and bind not only him, but prior parties, although time is lost by so sending it. The notice of non-payment should be sent within reasonable time ; and in respect to negotiable paper, the law-merchant defines this within very narrow limits. If the parties live in the same town, notice must be given or sent so that the party to whom it is sent may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in different places, the notice must be sent as soon as by the first practicable mail of the next day, or the next mail, if there be none on the next day. Each party receiving notice has a day, or until the next post after the day in which he receives it, before he is obliged to send the \ ISO NOTES OF TTAXD, BILLS OF EXCHANGE, ETO. notice forward. Thus, if there be six indorsers, and the note is due on the 10th of May, in New York, and is then demanded and un- paid, the holder may send it by any mail which leaves New York on the llth of May, to the last indorser, wherever he lives ; and that indorser may send it to the indorser immediately before him, by any mail on the day after he receives it ; and so may each of the parties receiving notice ; and all the parties to whom notice is sent in this way will be held. So, too, a banker, with whom the paper is de- posited for collection, is considered a holder, and entitled to a day to give notice to the depositor, who then has a day for his notice to antecedent parties. The different branches of one establishment have been held distinct holders for this purpose, and each to be entitled to a day. It should be sent by the first safe opportunity. Neither Sunday nor any legal holiday is to be computed in reckon- ing the time within which notice must be given. There is no presumption of notice ; and the plaintiff must prove that it was given, and was sufficient. Thus, proving that it was given in " two or three days " is insufficient, if two would have been right, but three not. Notice should be given only by a party to the instrument, who is liable upon it, and not by a stranger ; and it has been held that notice could not be given by a first indorser, who, not having been notified, was not himself liable. A notice by any party liable will operate to the benefit of all antecedent or subsequent parties ; that is, will hold them all to the original holder of the note, if the origi- nal holder gave notice properly to the party nearest to him. The notice may be given by any authorized agent of a party who could himself give notice. Notice must be given to every antecedent party who is to be held. And we have seen that this may be given by a holder to the first party liable, and by him to the next, &c. But the holder may always give notice to all antecedent parties ; and it is always pru dent, and in this country, usual, to do so. For the holder loses all remedy against all those who are discharged by the failure of any one receiving notice to transmit it properly. But if a holder undertakes to notify all the antecedent parties, he must notify all as boon as he was obliged to notify the party nearest to him ; that is, THE EIGHTS AND DUTIES OF THE HOLDEE. 181 the day after the dishonor of the note. We mean by this, that every party has a day ; so that, if there be six indorsers, if the first in- dorser is notified on the seventh day from the dishonor, it is enough, if the holder took his day to notify the sixth indorser, and that iu- dorser his day to notify the fifth, and so on. But the holder has nobody's day but his own ; and if he undertakes to notify all the parties, he must notify them all on the first day after the non-pay- ment. Notice may be given personally to a party, or to his agent author- ized to receive notice, or left in writing at his home or place of business. If the party to be notified is dead, notice should be given to his personal representatives. A notice addressed to the " legal representative of," &c., and sent to the town in which the deceased party resided at his death, has been held sufficient. But a notice addressed to the party himself, when known to be dead, or to " the estate of," &c., would not be of itself sufficient, but might become so with evidence that the administrator or executor actually received the notice. If two or more parties are jointly liable on a bill as partners, notice to one is enough ; but, if the indorsers are not partners, notice should be given to each. One transferring by delivery, without indorsement, a note or bill payable to bearer, is not generally entitled to notice of non-payment, because, generally, he is not liable to pay such paper ; but if the circumstances of the case are such as to make him liable, then he must have notice, but is entitled not to the exact notice of an indors- er, but only to such reasonable notice as is due to a guarantor. If, for instance, the paper was transferred as security, or even in pay- ment of a pre-existing debt, this debt revives if the bill or note be dishonored ; and therefore there must be notice given of the dishonor. In general, a guarantor of a bill or note, or debt, is not entitled to such strict and exact notice as an indorser is entitled to, but only to such notice as shall save him from actual injury ; and he cannot make the want of notice his defence, unless he can show that the notice was unreasonably withheld or delayed, and that he has actually sustained injury from such delay or want of notice. If an indorser give also a bond, or his own note, to pay the debt, he is not dis- charged from-his bond or note by want of notice. 182 NOTES OF HAND, BILLS OF EXCHANGE, ETC. In general, all parties to negotiable paper, who are entitled to notice, are discharged by want of notice. The law presumes them to be injured, and does not put them to proof. The right to notice may be waived by any agreement to that effect prior to the maturity of the paper. It is quite common for an in?- dorser to write, " I waive notice," or, " I waive demand," or some words to this effect. It should, however, be remembered, that these rights are independent, and one does not imply the other. A waiver of notice of non-payment does not imply a waiver of demand ; there- fore, if an indorser writes on the note, " I waive notice," still he will be discharged if there be not a due demand on the maker. And it has been held that a waiver of protest is a waiver of demand, but not of notice. So if a drawer countermands his order, the bill should still be presented, but notice of dishonor need not be given to the drawer. Or, if a drawer has no funds, and nothing equivalent to funds, in the drawee's hands, and would have no remedy against the drawee or any one else, as the drawer cannot be prejudiced by want of notice, it is not necessary to give him notice. But the indorser must still be notified ; and a drawer for the accommodation of the acceptor is entitled to notice, because he might have a claim upon the acceptor. Actual ignorance of a party's residence justifies the delay neces- sary to find it out, and no more ; and after it is discovered, the notifier has the usual time. Death, or severe illness, of the notifier or his agent, is an excuse for delay ; but the death, bankruptcy, or insolvency of the drawee of a bill is no excuse. As the right to notice may be waived before maturity, so the want of notice may be cured afterwards by an express promise to pay ; and an acknowledgment of liability, or a payment in part, is evi- dence, but not conclusive evidence, of notice ; the jury may draw this conclusion from part payment, but are not bound to, even if the evidence be not rebutted. If the promise be conditional, and the condition be not complied with, the promise has been held to be still evidence of protest. Nor is it sufficient to avoid such promise, that it was made in ignorance of the law ; but it is void if made iu ignorance of \\\Qfact of non-notice. THE EIGHTS AND DUTIES OF THE EsTDOBSER. 183 SECTION VI. TELE BIGHTS AND DUTIES OF THE IXDOKSER. ONLY a note or bill payable to a payee or order is, strictly speak- ing, subject to indorsement. Those who write their names on the back of any note or bill are indorsers in one sense, and are some- times called so ; but are not meant in the law-merchant by the word " indorsers." The payee of a negotiable bill or note whether he be also maker or not may indorse it, and afterwards any person, or any number of persons, may indorse it. The maker promises to pay to the payee or his order ; and the indorsement is an order on the maker to pay the indorsee, and the maker's promise is then to pay the note to him. But if the original promise was to the payee or order, this " or order," which is the negotiable element, passes over to the in- dorsee, though not written in the indorsement, and the indorsee may indorse, and so may his indorsee, indefinitely. Each indorser, by his indorsement, does two things : first, ho orders the antecedent parties to pay to his indorsee ; and next, he engages with his indorsee, that, if they do not pay, he will. If the words " to order," or " to bearer," are omitted accidental- ly, and by mistake, they may be afterwards inserted without injury tc the bill or note ; and whether a bill or note is negotiable or not, is a question of law. By the law-merchant, bills and notes which are payable to order can be effectually and fully transferred only by indorsement. This indorsement may be in blank, or in full. The writing of the name of a payee, either the original payee or an indorsee, with nothing more, is an indorsement in blank ; and a blank indorsement makes the bill or note transferable by delivery, in like manner as if it had been originally payable to bearer. After a note has been indorsed by a payee, any person may write his name on the note under that of the payee, and be held as indorser, because any subsequent holder may write over the name of the first indorser a direction to pay the note to the next signer, and this makes the next signer an indorsee, and so gives him a right to indorse ; and he or any holder may 184 NOTES OF HAND, BILLS OF EXCHANGE, ETC. write over his name an order to pay the holder, or anybody else. If the indorsement consist riot only of the name, but of an order above the name to pay the note to some specified person, then it is an indorsement in full, and the note can be paid to no one else unless that person indorses it ; nor can the property in it bo fully transferred, except by his indorsement ; and his indorsee may again indorse it in blank or in full. If the indorsement is, Pay to A B only, or in equivalent words, A B is indorsee, but cannot indorse it. over. Any holder for value of a bill or note indorsed in blank, whether he be the first indorsee or one to whom it has come through many hands, may write over any name indorsed an order to pay the con- tents to himself; and this makes it a special indorsement, or an in- dorsement in full. This is often done for security ; that is, to guard against the loss of the note by accident or theft. For the rule of law is, that negotiable paper transferable by delivery (whether pay- able to bearer or indorsed in blank) is, like money, the property of whoever receives it in good faith. The same rule has been extended in England to exchequer bills ; to public bonds payable to bearer ; and to East India bonds ; and we think it would extend here to our railroad and other corporation bonds, and, perhaps, to all such in- struments as are payable to bearer, whether sealed or not, and what- ever they may be called. If one has such an instrument, and it is stolen, and the thief passes it for consideration to a bond fide holder, this holder acquires a legal right to it, because the property and possession go together. But if the bill or note be specially indorsed, no person can acquire any property in it, except by the indorsement of the special indorsee. It may be well to remark here, that the finder of negotiable paper, as of all other property, ought to make reasonable endeavors to discover the owner, and is entitled to use the thing found as his own only when he has made such endeavors unsuccessfully. If lie conceals the fact of finding, and appropriates the thing to his own use, he is liable to the charge of larceny or theft. The written transfer of negotiable paper is called an indorsement, because it is almost always written on the back of the note ; but it has its full legal effect if written on the face. THE EIGHTS AND DUTIES OP THE INDOKSEB. 185 Joint payees of a bill or note, who are not partners, must all join in an indorsement. An indorser may always prevent his own responsibility by writing " without recourse," or other equivalent words, over his indorse- ment ; and any bargain between the indorser and indorsee, written or oral, that the indorser shall not be sued, is available by him against that indorsee ; but he cannot make this defence against sub- sequent indorsees who had no notice of the bargain before they took the note. Every indorsement and acceptance admits conclusively the genu- ineness of the signature of every party who has put his name upon the bill previously in fact, and who is also previous in order. By this is meant, that if an indorser say a third indorser is sued, he cannot defend himself by saying that the names of the maker and first and second indorsers, or either of them, were forged, be- cause by indorsing it himself he gives his indorsee a right to believe that the previous signatures were genuine. And an acceptor can- not say that his drawer's name is forged ; but he may say that an indorsement which was on the bill when he accepted it was forged, because an indorsement of a bill comes properly and in order of law after acceptance. If a holder strike out an indorsement by mistake, he may restore it ; if on purpose, the indorser is permanently discharged. A holder may bring his action against any prior indorser, either by making title through all the subsequent indorsements, or by filling any blank indorsement specially to himself, and suing accordingly ; but then he invalidates all the indorsements which are subsequent to that which he has made special to himself. One may make a note or bill payable to his own order, and in- dorse it in blank ; and this is now very common in our commercial cities, because the holder of such a bill or note can transfer it by delivery, and it needs not his indorsement to make it negotiable further. A note to the maker's own order, if not indorsed by him, is, strictly speaking, of no force against him. But there is some dis- position in the courts to say that a holder of such note may sue the maker as if the note were to bearer. A transfer by delivery, without indorsement, of a bill or note pay- 186 NOTES OF HAND, BILLS OF EXCHANGE, ETC. able to bearer, or indorsed in blank, does not generally make the trausferrer responsible to the transferree for the payment of the in- strument. Nor has the transferree a right to fall back, in case of non-payment, upon the transferrer for the original consideration of the transfer, if the bill were transferred in good faith, in exchange for money or goods ; for such transfer would be held to be a sale of the bill or note, and the purchaser takes it with all risk. An indorsement may be made on the paper before the bill or note is drawn; and such indorsement, says Lord Mansfield, "is a letter of credit for an indefinite sum, and it will not lie in the indorser's mouth to say that the indorsements were not regular." The same rule applies to an acceptance on blank paper. So an indorsement may be made after or before acceptance, though strictly proper only after. A bill or note once paid at or after maturity, ceases to be negotia- ble, in reference to all who had been discharged by the payment. If issued again, it is like a new note without their names. If a bill or note is paid before it is due, it is valid in the hands of a subse- quent bond fide indorsee, and must be paid to him. A portion of a negotiable bill or note cannot be transferred, so as to give the transferree a right of action for that portion in his own name. But if the bill or note be partly paid, it may be indorsed over for the balance. After the death of a holder of a bill or note, his executor or ad- ministrator may transfer it by his indorsement. The husband who acquires a right to a bill or a note which was given to the wife either before or after marriage, may indorse it. If the rule that the same party cannot be plaintiff and defendant, prevents the action, as where A, B, & Co. hold the note of A, C, & Co., so that if a suit were brought A would be one of the plaintiffs and one of the defendants also, which cannot be, A, B, & Co. may indorse the note to D, who may then sue A, C, & Co. THE BIGHTS AND DUTIES OF THE ACCEPTOR. 187 SECTION VII. THE BIGHTS AND DUTIES OF THE ACCEPTOR. ACCEPTANCE applies to bills, and not to notes. It is an engage- ment of the person on whom the bill is drawn to pay it according to its tenor. The usual way of entering into this agreement, or of ac- cepting, is by the drawee's writing his name across the face of the bill, and writing over it the word " accepted." But any other word of equivalent meaning may be used, and it may be written elsewhere, and it need not be signed, or the drawee's name alone on the bill may be enough. A written promise to accept a future bill, if it distinctly define and describe that very bill, has been held in this country as the equivalent of an acceptance, if the bill was taken on the credit of such promise. A banker is liable to his depositor without acceptance of his checks, if he refuses to pay checks drawn against funds in his hands. If a bill is accepted by a part only of those jointly responsible, or joint drawees, it may be treated by the holder as dishonored ; but if not so treated, the parties accepting will be bound. An acceptance may be made after maturity, and will be treated as an acceptance to pay on demand. The acceptance may be cancelled by the holder ; and if this can- celling bo voluntary and intended, it is complete and effectual; but if made by mistake, by him or other parties, and this mistake can be shown, the acceptor is not discharged. And if the cancelling be by a third party, it is for the jury to say whether the holder author- ized or assented to it. If a qualified acceptance be offered, the holder may receive or refuse it. If he refuses it, he may treat the bill as dishonored ; if he receives it, he should notify antecedent parties, and obtain their con- sent ; without which they are not liable. But if he protests the bill as dishonored, for this reason, he cannot hold the acceptor upon his qualified acceptance. A bill drawn on one incompetent to contract, as from infancy, marriage, or lunacy, may be treated by the holder as dishonored. 14 188 NOTES OF HAND, BILLS OF EXCHANGE. ETC. A bill can be accepted only by the drawee, in person or by his authorized agent, or by some one who accepts for honor. SECTION VHL ACCEPTANCE OB PAYMENT FOB HONOB. IP a bill be protested for non-acceptance or for non-payment, any person may accept it, or pay it for the honor either of the drawer or of any indorser. This he usually does by going with the bill before the notary-public who protested the bill, and there declaring that he accepts or pays the bill for honor; and he should designate for whose honor he accepts or pays it, at the time, before the notary- public, and it should be noted by him. A general acceptance supra protest (which is the phrase used both by merchants and in law, meaning upon or after protest) for honor, is taken to be for honor of the drawer. The drawee himself, refus- ing to accept it generally, may thus accept for the honor of the drawer or an indorser. And after a bill is accepted for honor of one party, it may be accepted by another person for honor of another party. And an acceptance for honor may be made at the interven- tion and request of the drawee. No holder is obliged to receive an acceptance for honor : he may refuse it wholly. If he receive it, he should, at the maturity of the bill, present it for payment to the drawee, who may have been sup- plied with funds in the mean time. If not paid, the bill should be protested for non-payment, and then presented for payment to the acceptor for honor. The undertaking of the acceptor for honor is collateral only; being an engagement to pay if the drawee does not. It can only be made for some party who will certainly be liable if the bill be not paid ; because, by an acceptance or by a payment, properly made, for honor, supra protest, such acceptor or payer acquires an absolute claim against the party for whom he accepts, or pays, and against all parties to the bill antecedent to him, for all his lawful costs, pay- ments, and damages, by reason of such acceptance or payment. FOEMS OP JUDGMENT NOTES. 189 This is an entire exception to the rule that no person can make him- self the creditor of another without the request or consent of that other ; but it is an exception established by the law-merchant. The reason why bills of exchange are sometimes accepted or paid fer honor is to save the party for whose honor this is done, from the very heavy damages of a protested bill. In many of our States it is a common practice to give a promis- sory note, and include in it a confession of judgment, for the amount. A suit may then be brought on the note as soon as it is due and unpaid, and a judgment taken out at once without the delay of a trial ; and execution may issue on the judgment. Sometimes by the same note the promisor waives or renounces the benefit or pro- tection of all exemption laws; and then the execution may be satisfied from any of his property that the sheriff can find. (68.) Form of a Judgment Note with Waiver. $ 18 (Time.') after date, for value received, promise to pay or bearer, dollars, with interest, and without defalcation or stay of execution. And do hereby confess judgment for the above sum, with interest and costs of suit, a release of all errors, and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or personal property from levy and sale. (Sign iture.) Sometimes, in addition to the above, the same note has below it a power of attorney, authorizing the attorney whose name is put into the blank left for that purpose to appear in court for the promisor, and confess judgment. Sometimes the power is given to an attorney whom the parties agree upon, and then no other attor- ney can confess the judgment. It is, however, far more usual, and better, to insert the name of an attorney, and add, as in the follow- ing form, "or any attorney of any court of record." 190 NOTES OF HAND, BILLS OF EXCHANGE, ETC. (69.) Judgment Note with Waiver, and Power of Attorney. $ 186 after date the subscriber , of County of ^ State of promise to pay to the National Bank Of or order dollars, at their office, value received, with interest, at per cent per annum after due. Due Know all Men by these Presents, That the subscriber justly indebted to the National Bank of upon a certain promissory note, bearing even date herewith, for the sum of dollars, with interest, at the rate of per cent per annum, after due, and due day after date. Now, Therefore, In consideration of the premises do hereby make, constitute, and appoint or any attorney of any court of record, to be true and lawful attorney, irrevocably for and in name , place, and stead, to appear in any court of record, in term time or in vacation, in any of the States or Territories of the United States, at any time after the said note becomes due, to waive the service of process, and confess a judgment hi favor of the said National Bank of or their assigns or assignees, upon the said note for the above sum and interest thereon, to the day of the entry of the said judgment, together with costs, and twenty dollars, attorney's fees, and also to file a cognovit for the amount thereof, with an agreement therein, that no writ of error or appeal shall be prosecuted upon the judgment entered by virtue hereof, nor any bill in equity filed to interfere hi any manner with the operation of said judgment, and to release all errors that may intervene in the entering-up of said judgment, or issuing the execution thereon ; and also to waive all benefit of advantage to which may be entitled by virtue of any homestead or other exemption law, now, or hereafter in force, in this or any other State or Territory where judgment may be entered by virtue hereof. Hereby ratifying and confirming all that said attorney may do by virtue hereof. Witness hand and seal this day of A. D. 186 (Signature.) (Seal.) In Presence of Sometimes the note is followed on the same paper by a power to confess judgment, and a waiver of all right of exemption ; both the power and the waiver extending beyond the above-written note, and covering other notes and bonds and other evidence of debt. FOEMS OF JUDGMENT NOTES. 191 (70.) Judgment Note with fuller Waiver, and Power of Attorney. $ 18 for value received, premise to pay to the order of the sum of dollars, with interest, in (time) (Signature.) Know all Men by these Presents, That whereas, the subscriber now justly indebted to upon a certain promissory note, bearing even date herewith, for the sum of dollars, and cents, made payable to the order of the said and due , and may from time to time hereafter become further or otherwise justly indebted to the said upon bonds, promissory notes, due bills, and other written evidences of debt, made, or to be made, indorsed or accepted by and held or owned by the said assignee or assignees hereof. Now, Therefore, in consideration of the premises, and of the sum of one dollar to paid by the said the receipt whereof is hereby acknowledged do hereby make, constitute, and appoint or any attorney of any court of record, to be true and lawfulj attorney, irrevocable, for and in name , place , and stead, to appear in and before any court of record, either in term time or in vacation, in any of the States or Territories of the United States, at any time after the of said note, or of any such bond, promissory note, due bill, or other written evidence of debt, so already made or to be made, indorsed or accept- ed by as aforesaid, respectively, to waive service of process, and confess a judgment in favor of the said executors, administrators, assignee, or assignees, or the legal holder or holders of said note or of any one or more of such bonds, promissory notes, due bills, or other written evidences of debt, as aforesaid, for so much money as shall by the same appear to be due or owing thereon, with interest thereon according to the tenor and effect thereof respectively, together with costs ; also, for dollars attorney's fees, to be added to the amount due or owing on entering up judgment ; also, to file a cognovit for the amount that may be so due or owing, including attorney's fees as aforesaid, with an agreement therein that no writ of error or appeal shall be prosecuted upon the judgment entered up by virtue hereof, nor any bill in equity filed to restrain or in any manner interfere with the operation of said judg- ment, or any execution issued or to be issued thereon, and to release all errors that may intervene in the entering-up of any such judgment or issuing any execution thereon, and to consent, stipulate, and agree, that any execution issued or to be issued upon such judgment, may be immediately levied upon, and satisfied out of 192 AGENCY. any personal property which may have or own, and to waive and relin- quish all right to have personal property last taken and levied upon to satisfy such execution, and also to consent that execution may issue upon any such judgment immediately. Hereby ratifying and confirming all that, said attorney may do by virtue hereof. And, in consideration of the premises, do hereby stipulate, covenant, and igree with the said executors, administrators, and with the assignee, assignees, or the legal holder or holders of said note, or of any one or more of such bonds, promissory notes, due bills, or other written evidences of debt as aforesaid, that any execution so issued or to be issued as aforesaid, may first be levied upon and satisfied out of any personal property which may have or own, hereby expressly waiving all right to have personal property last taken and levied upon to satisfy such execution. "Witness hand and seal this day of A.D. 18 (Signature.) (Seal.) In Presence of CHAPTER XVII. SECTION L AGENCY IN GENERAL. THE relation of principal and agent implies that the principal acts by and through the agent, so that the acts in fact of the agent are the acts in law of the principal ; and only when one is authorized by another to act for him in this way, and to this extent, is he an agent. One who is disqualified from contracting on his own account may act as the agent of another ; thus infants, married women, and aliens may act as agents for others. A principal is responsible for the acts of his age"nt, not only when he has actually given full authority to the agent thus to represent and act for him, but when he has, by his words, or his acts, or both, caused or permitted the person with whom the agent deals to believe him to be clothed with this authority. And a man may be thus held AGENCY IN GENERAL. 193 as a principal, either because he has in some way authorized all per- sons to believe that he has constituted some other man his agent, or because he has authorized only the party dealing with the supposed agent to so believe. For all responsibility rests upon two grounds, which are commonly united, but either of which alone is sufficient : one, the giving of actual authority ; the other, such appearing to give authority as justifies those who deal with the supposed agent in believing that this authority was given him. A general agent is one authorized to represent his principal in all his business, or in all his business of a particular kind. A particular agent is one authorized to do only a specific thing or a few specified things. It is not always easy to discriminate between these ; but it is often important, by reason of the rule that the authority of a general agent is measured by the usual scope and character of the business he is empowered to transact. By appointing him to do that business, the principal is considered as saying to the world that his agent has all the authority necessary to the doing of it in the usual way. And if the agent transcends his actual authority, but does not go beyond the natural and usual scope of the business, the principal is bound, unless the party with whom the general agent dealt knew that the agent exceeded his authority. For if an agent does only what is natural and usual in transacting business for his principal, and yet goes beyond the limits prescribed by him, it is obvious that the prin- cipal must have put particular and unusual limitations to his author- ity ; and these cannot affect the rights of a third party who deals with the agent in ignorance of these limitations. But, on the other hand, the rule is, that, if an agent who is specially authorized to do a specific thing exceeds his authority, the principal is not bound, because the party dealing with such agent must inquire for himself, and at his own peril, into the extent and limits of the authority given to the agent. Here, however, as before, if the party dealing with the agent, and inquiring, as he should, into his authority, has sufficient evidence of this authority furnished to him by the princi- pal, and, in his dealings with the agent, acts within the limits of the authority thus proved, he cannot be affected by any reservations and limitations made secretly by the principal, and wholly unknown to the person dealing wi*h the agent. 194 AGENCY. SECTION H. HOW AUTHORITY MAY BE GIVEN TO AN AGENT. IT may be given under seal, or in writing without seal, or o:ally. if given by a written instrument, this instrument is called a Power of Attorney, of which we shall give various forms at the close of this chapter. An oral appointment authorizes the agent to make a writ- ten contract, but not to execute instruments under seal. But ai? instrument under seal, signed and sealed in the principal's presence, and by his request and authority, will be regarded as the princi- pal's deed, made by himself. One employed by another to act for him in the usual trade or business of the agent, as auctioneer, broker, or the like, acquires thereby authority to do all that i* necessary or usual in that business. And if a person puts his goods into the custody of another whose ordinary and usual business it is to sell such goods, he authorizes the whole world to believe that this person has them for sale ; and any person buying them honestly, in this belief, would hold them. Therefore, if fraudulent by-bidding be procured or permitted by the auctioneer, even without the knowledge of the owner of tho goods, the owner is answerable for this fraud of his agent, and the buyer has a right to refuse to take the goods. So neither party is bound until the agreement of sale is completed. Therefore the actioneer may withdraw any article, and a bidder may withdraw any bid, until the article is " knocked down," but not afterwards ; for then the sale is completed, and the property in (or ownership of) the article passes to the buyer. If one is repeatedly employed to do certain things, as a wife or a son to sign bills or receipts ; or a domestic servant to make pur- chases ; or a merchant or broker to sign policies, and the like, in all these cases, one dealing with the person thus usually employed is justified in believing him authorized to do those things with the assent and approbation of his employer, and in the same way in which he has done them, but not in any other way. Thus, if a ser- vant is usually employed to buy, but always for cash, this implies no authority to buy on credit. HOW AUTHORITY MAY BE GIVEN TO AN AGENT. 195 An agency may be confirmed and established, and in fact created, by a subsequent adoption and ratification ; and a ratification relates back to the original transaction ; and a corporation is bound by the ratification of an agent's acts, in the same manner as an individual would be. But no ratification is effectual to bind the principal, unless made by the principal with a knowledge of all the material facts. And there can be ratification only where the act is done by one purporting to be an agent, or by an assumed authority. Gen- erally, one who receives and holds a beneficial result of the act of another as his agent, is not permitted to deny such agency ; and in some cases this is extended even to acts of such agent under seal. Thus, if an agent sell under seal property of a supposed principal, an individual or a corporation, and receive payment, and hand this over to the principal, if the principal could show that the agent had no authority, he might avoid the sale, and recover the property ; but he could not do this and also hold the money paid for it. And if one, knowing that another has acted as his agent, does not disavow the authority as soon as he conveniently can, but lies by and permits a person to go on and deal with the supposed agent, or to lose an opportunity of indemnifying himself, this is an adoption and confir- mation of the acts of the agent. Nor can a supposed principal adopt a part for his own benefit, and repudiate the rest of the sup- posed agency ; he must adopt the whole or none. If an agent makes a sale, and his principal ratifies the sale, he thereby ratifies the agent's representations made at the time of the sale and in relation to it, and is bound by them. The whole subject of mercantile agency is influenced and governed by mercantile usage. Thus, as to the difference between factors and brokers, the law adopts a distinction usual among merchants, although it may not always be regarded by them. A factor is a mercantile agent for sales and purchases, who has possession of the goods ; a broker is such agent, but without possession of the goods. Hence, a factor may act for his principal, and yet in his own name, because the actual owner, by delivering to him the goods, gives to him the appearance of an owner ; but a broker must act only in the name of his principal. A purchaser of goods from a factor may set off against the price a 196 AGENCY. debt due from the factor, unless he buys the goods knowing that they are another's ; not so, if the purchaser buy from a broker. Again, a factor has a lien on the goods for his claims against his principal ; but a broker generally has not. One may be a factor as to all rights and duties, who is called a broker ; as an exchange-broker, who has notes for sale on discount, certificates of stock, &c., delivered into his possession ; and such broker, being actually a factor, would have a lien on the policies of insurance or other documents held by him, for his commissions and charges about those documents. A cashier of a bank, or other official person, may be an agent for those whose officer he is, or for others who employ him. He has, without special gift, all the authority necessary or usual to the transaction of his business. But he cannot bind his employers by any unusual or illegal contract made with their customers. The same law, and tlie same qualifications, apply to the case of officers of railroad companies, or other corporations. Their acts bind their employers or companies, so far as they have authorized those acts, or have justified those who dealt with the officers in believing that the officers possessed such authority ; but no further. Nor would the acts or permissions of such officer have any validity if they violate his official duties, and are certainly and obviously beyond his power, even if sanctioned by his directors ; as if the cashier of a bank permitted overdrawing, or the like. And all parties who deal with such agent in such a transaction would be unable to hold the principal ; for the law would consider them as knowing that the officer could have no right to da such things. Therefore, the general agent of a corporation, clothed with a certain power by the charter or the lawful acts of the corporation, may use that power for an authorized, or even a prohibited purpose, in his dealings with an innocent third party, and render the corpo- ration liable for his acts, if they be really within the power given him, or seem to be within it by the fault or act of the corporation ; but not otherwise. Thus, a treasurer of a corporation has no power to release a claim which belongs to the corporation. EXTENT AND DUBATION OF AUTHORITY. 197 SECTION IH. EXTENT AND DUBATION OF AUTHOBITY. A GENERAL authority may continue to bind a principal after its actual revocation, if the agency were known, and the revocation be wholly unknown to the party dealing with the agent, without that party's fault. An authority to sell implies an authority to sell on credit, if that be usual ; otherwise not ; and if an agent sells on credit without any authority, or by exceeding his authority, the principal may claim his goods from the purchaser, or hold the agent responsible for their price. Neither an auctioneer, nor a broker employed to sell, has any right to sell on credit, unless this authority is given him ex- pressly, or by some known and established usage. And the agent is generally responsible if he mixes the goods of his principal with his own, in such a manner as to confuse them together, or takes a note payable to himself, unless this be authorized by the usage of the trade. If the agent (or factor) takes a note payable to himself, and be comes bankrupt, such note belongs to his principal, and not to the agent's assignees. A power to sell gives a power to warrant, where there is a distinct usage of making such sales with warranty, and the want of authority to warrant is unknown to the purchaser, without his fault ; and not otherwise. Thus, it has been held that an authority to sell a horse implies an authority to sell with warranty, because horses are usually sold with warranty. A general authority to sell goods carries with it an authority to sell by sample. General authority to transact business, or even to receive and discharge debts, does not enable an agent to accept or indorse bills or notes, so as to charge his principal. Indeed, special authorities to indorse are construed strictly* But this authority may be implied from the previous usage of the agent, recognized and sanctioned by the principal. Where a confidential clerk was accustomed to draw bills for his employer, and this employer had authorized him in one instance to indorse, and on two other occasions had received money obtained by his 198 AGENCY. indorsement of his employer's name, the court held that a jury might consider the clerk authorized generally to indorse for his employer. An agent to receive cash has no authority to take bills or notes, except bank-notes. If an agent sells, and makes a material representation which he believes to be true, and the principal knows it to be false, and does not correct it, this is the fraud of the principal, and avoids the sale. If an agency be justly implied from general employment, it may continue so far as to bind the principal after his withdrawal of the authority, if that withdrawal be not made known, in such way as is usual or proper, to all who deal with the agent as sw$h. Revocation, generally, is always in the power and at the will of the principal. His death operates of itself a revocation. But the death of an agent does not revoke the authority of a sub-agent ap- pointed by the agent under an authority given him by the principal. If the power be coupled with an interest, as where one gives a person power to sell goods and apply the money for his own benefit, or the like, or if it is given for a valuable consideration, and the continuance of the power is requisite to make the interest available, then it cannot be revoked at the pleasure of the principal. Marriage of a woman revokes a revocable authority given by her while single. If an agent to whom commercial paper is given for collection be negligent or mistaken about it, and so in fault towards his principal, the measure of his responsibility is the damage actually sustained by his principal. If a bank receive notes or bills for collection, although charging no commission, the possible use of the money is consideration enough to make them liable as agents having compensation ; that is, liable for any want of due and legal diligence and care. But if the bank exercise proper skill and care in the choice of a collecting agent, or of a notary, or other person or officer, to do what may be necessary in relation to the paper committed to them, the bank is not liable for his. want of care or skill. In general, an exigency, or even necessity, which would make an extension of the power of an agent very useful to his employer, will not give that extension. A master of a ship, however, may sell it, in case of necessity, or pledge it by bottomry, to raise money But THE EXECUTION OF AUTHORITY. 199 this is a peculiar effect of the law-merchant, to be considered more fully in the chapter on the Law of Shipping ; and no such general rule applies to ordinary agencies. SECTION IV. THE EXECUTION OP AUTHORITY. GENERALLY, an authority must be conformed to with great strict- ness and accuracy ; otherwise, the principal will not be bound, although the agent may be bound personally. But the old strictness is now abated considerably ; and, whatever be the form or manner of the signature of a simple contract, it will be held to bind the principal, if that were the certain and obvious intent. In the case of sealed instruments, the ancient severity is more strictly main- tained. That the authority must be conformed to with strict accuracy, in "ill matters of .substance, is quite certain ; but the whole instrument frill be considered, in order to ascertain the intention of the parties and the extent of authority. A power given to two cannot be exe- cuted by one ; but some exception to the rule as to joint power exists in the case of public agencies, and also in many commercial transactions. Thus, either of two factors whether partners or not may sell goods consigned to both. And where there are joint agents, whether partners or not, notice to one is notice to both. In commercial matters, usage, or the reason of the thing, may sometimes seem to add to an authority; so far, at least, as is requisite for the full discharge of the duty committed to the agent in the best and most complete manner. Thus, it is held that an agent to get a bill discounted may indorse it in the name of his principal, unless he is expressly forbidden to indorse. So a broker, employed to procure insurance, may adjust a loss under the same ; but he cannot give up any advantages, rights, or securities of the assured, by compromise or otherwise, without special authority. 200 AGENCY. SECTION V. UABUJTY OF AN AGENT. GENERALLY, an agent makes himself liable by his express agree- ment, or by transcending his authority, or by a material departure from it, or by concealing his character as agent, or by such conduct as renders his principal irresponsible, or by his own bad faith. If he describes himself as agent for some unnamed principal, he is not liable, unless he is proved to be the real principal. If an agent execute an instrument the language of which would hold him personally, he cannot exonerate himself by showing that in fact he signed it as agent, and that this was known to the other party. Be- cause this would be to vary the terms of a written contract by evi dence, which is not permitted, as we have before stated. A party with whom an agent deals as agent cannot hold him per- sonally, on the ground that he transcended or departed from his authority, if that party knew at the time that the agent did so. If he exceeds his authority, he is liable on the whole contract, although a part of it is within his authority. One who, having no authority, acts as agent, is personally responsible. But if an agent transcends his authority through an ignorance of its limits, which is actual and honest, and is not imputable to his own neglect of the means of knowledge, he would not be held, unless an innocent party dealing him as agent would otherwise suffer loss. SECTION VL RIGHTS OF ACTION GROWING OUT OF AGENCT. IP an agent intrusted with goods sell the same without authority, the principal may affirm the sale, and sue the buyer for the price, or he may disaffirm the sale, and recover the goods from the buyer. In case of a simple contract, that is, a contract not under seal, an undisclosed principal may show that the nominal party was actually his agent, and thus make himself actually a party to the contract, HOW A PKINCIPAL IS AFFECTED BY ACTS OF AGENT. 201 and sue upon it ; but if the other party has previously in good faith settled with the supposed agent, or paid him any thing, in cash or by charge, or in account, this other party must not lose by the com- ing forward of the principal. So, too, an undisclosed principal, when discovered, may be made liable on such contract ; but would be protected, if his accounts or relations with his agent had been in the mean time changed in good faith, so as to make it detrimental to him to be held liable. If one sells to an agent, knowing him to be an agent, and knowing who is his principal, and elects to charge the goods to the agent alone, he cannot afterwards transfer the charge to the principal. Notice to an agent, before the transaction goes so far as to render the notice useless, is notice to the principal. And knowledge obtained by an agent in the course of the transaction itself is the same thing as knowledge of the principal. Notice to an officer or member of a corporation is notice to that corporation, if the officer or member, by appointment, or by usage, had authority to receive it for the corporation ; but notice to any member is not necessarily notice to a corporation. SECTION VH. HOW A PRINCIPAL IS AFFECTED BY THE ACTS OF HIS AGENT. IF an agent makes a fraudulent representation, a principal would be liable for resulting injury, although personally ignorant and innocent of the wrong ; nor can he take any benefit therefrom. A principal cannot, of course, restrict his liability by calling himself an agent, although this is sometimes attempted. Payment to an agent of money due to the principal binds the principal only when it is made to the agent in the regular course of business. Payment to a sub-agent appointed by the agent, but whose appointment is not authorized by the principal, binds the agent, and renders him liable to the principal for any loss of the money in the sub-agent's hands. Where a legacy was left to a tradesman, and the executors paid it to a shopman who was in the habit of receiving daily payments, this was held not a sufficient pay- 202 AGENCY. merit to discharge the executors. And, generally, a shopman authorized to receive money at the counter, or any person author- ized to receive money at any particular place or in any particular way, is not thereby authorized to receive it in any other place or in any other way. Nor is the principal bound, if the agent be authorized to receive the money, but, instead of actually receiving it, discharge a debt due from him to the payer, and then give a receipt as for money paid to his principal, unless it can be shown that he has special authority to receive payment in this way, or that such pay- ment is justified by known usage. In general, although a principal may be responsible for the delib- erate fraud of his agent in the execution of his employment, he is not responsible for his criminal acts, unless he expressly commanded them. There is, however, a class of cases in which the principal has intrusted property to his agent, and the agent has used it illegally ; and this act of the agent is evidence, which, if unexplained and unanswered, suffices to render the principal liable criminally, without proof of his direct participation in the act itself. The smuggling of goods, the issue of libellous publications, and the sale of intoxicating liquors, by agents, belong to this class. SECTION Vin. MUTUAL RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. AN agent cannot depart from his instructions without making himself liable to his principal for the consequences. In determin- ing the purport or extent of his instructions, custom and usage in like cases will often have great influence ; because, on the one hand, the agent is entitled to all the advantages which a known and estab- lished usage would give him ; and, on the other, the principal has a right to expect that his agent will conduct himself according to such usage. But usage is never permitted to prevail over express in- structions. A principal who accepts the benefit of an act done by his agent beyond or aside from his instructions, discharges the agent from responsibility therefor. And any unnecessary delay in PKINCIPAL AND AGENT. 203 renouncing the transaction, or any endeavor to wait and make a profit out of it, is an acceptance of the act. But if the agent has bought goods for his principal without authority, the latter may renounce the purchase, and, nevertheless, hold the goofls as security for his money, if that has been advanced on them. In general, every agent is entitled to indemnity from his principal, when acting in obedience to his lawful orders, or when he, in con- formity with his instructions, does an act which is not wrong in itself, and which he is induced by his principal to suppose right at that time. An attorney or agent cannot appoint a sub-attorney or agent, unless authorized to do so expressly, or by a certain usage, or by the obvious reason and necessity of the case. Thus, a consignee or factor for the sale of merchandise may employ a broker to sell, when this is the usual course of business. A sub-agent, appointed with- out such authority, is only the agent of the agent, and not the agent of the principal ; unless his appointment is in some way authorized or confirmed and ratified by the principal. An agent is bound to use, in the affairs of his principal, all that care and skill which a reasonable man would use in his own. And he is also bound to the utmost good faith. Where, however, an agent acts gratuitously, without an agreement for compensation, or any legal right to compensation growing out of his services, he will not be held responsible for other than gross negligence. A strictly gratuitous agent will be held responsible for property intrusted to him, if it be lost or injured by his gross negligence. For any breach of duty, an agent is responsible for the whole injury thereby sustained by his principal ; and, generally, a verdict against the principal for misconduct of the agent measures the claim of the principal over against the agent. The loss must be capable of being made certain and definite ; and then the agent is responsi- ble, if it could not have happened but for his misconduct, although not immediately caused by it. Thus, where an insurance-broker was directed to effect insurance on goods " from Gibraltar to Dublin," and caused the policy to be made, " beginning from the lading of the goods on board," and they were laden on board at Malaga, and went thence to Gibraltar, and sailed for Dublin, and 15 204 AGENCY. were lost on the voyage, so that the policy did not cover them be- cause they were not laden at Gibraltar, this was held to be gross negligence on his part, and he was held responsible for the value of the goods. . If any agent embezzles his employer's property, it is quite clear that the employer may reclaim it whenever and wherever he can distinctly trace and identify it. But if it be blended indistinguish- ably with the agent's own goods, and the agent die or become insol- vent, the principal can claim only as a common creditor, as against other creditors ; but as against the factor or agent himself, the whole belongs in law to the principal ; because the factor or agent had no right thus to mix up the property of another with his own, and if he chooses to do so, he must lose all of his own property that cannot be separated from that which is not his own. An agent employed to sell property cannot buy it himself ; nor, if employed to buy, can he buy of himself; unless expressly author- ized to do so. Nor can a trustee purchase the property he holds in trust for another. But the other party may ratify and confirm such sale or purchase by his agent ; and he will do this by accepting the proceeds and delaying any objection for a long time after the wrong- ful act is made known to him. And if a trustee or agent to sell property buys it, not in his own name, but through somebody else, the sale is void. Among the obvious duties of all agents is that of keeping an exact account of their doings, and particularly of all pecuniary transac- tions. After a reasonable time has elapsed, the court will presume that* such an account was rendered, accepted, and settled. Other- wise, every agent might always remain liable to be called upon for such account. Moreover, he is liable not only for the balances in his hands, but for interest ; or even, where there has been a long delay to his own profit, he might be liable for compound interest, on the same ground on which it has been charged in similar cases against executors, trustees, and guardians. No interest whatever would be charged, if such were the intention of the parties, or the effect of the bargain between them ; and this intention may be in- ferred either from direct or circumstantial evidence, as the nature of the transaction, or the fact that the principal knew that the FACTORS AND BROKERS. 205 money lay useless iu the agent's hands, and made no objection or claim. The general rule is, that a principal may revoke his agency^ and an agent may throw up the agency, at pleasure. But neither would be permitted to exercise this power in an unfair and injurious man- ner which circumstances do not require or justify, without being responsible to the other party for. any damages caused by his wrong- ful act. Insanity revokes authority, especially if legally ascertained. But if the principal, when sane, gave an authority to his agent, and a third party acts with the agent in the belief of his authority, but after the insanity of the principal has revoked it, the insanity not being known to this third party, this revocation will not be per- mit.ted to take effect to the injury of this third party. SECTION IX. FACTORS AND BROKERS. ALL agents who sell goods for their principals, and guarantee the price, are said in Europe to act under a del credere commission. In. this country, this phrase is seldom used, nor is such guaranty usually given, except by commission-merchants. And where such guaranty is given, the factor is so far a surety, that his employers must first have recourse to the principal debtor. Still his promise is not " a promise to pay the debt of another," within the Statute of Frauds. Nor does he guarantee the safe arrival of the money re- ceived by him in payment of the goods, and transmitted to his employer, but he must use proper caution in sending it. And if it is agreed that he shall guarantee the remittance, and charge a commis- sion for so doing, he is liable, although he does not charge the com- mission. If he takes a note from the purchaser, this note is his employer's ; and if he takes depreciated or bad paper, he must make it good. A broker or factor is bound to the care and skill properly belong- ing to the business which he undertakes, and is responsible for the want of it. 206 AGENCY. A factor intrusted with goods may pledge them for advances to his principal, or for advances to himself to the extent of his lien for charges and commissions. And his power to pledge them, which grows out of the law-merchant, has been much enlarged by statute in many of our States. The mere wishes or intimations of his employer, if sufficiently distinct, have the force of instructions. Thus, in New York, a principal wrote to his factor, stating that he thought there was a short supply of the goods he had consigned, and giving facts on which his opinion was founded, and concluded, " I have thought it best for you to take my pork out of the market for the present, as thirty days will make an important change in the value of the article." This was considered by the court to be a distinct instruc- tion, binding upon the factor ; and he was therefore held liable for the loss caused by selling the pork within the thirty days. All instructions the agent or factor must obey ; but may still, as we have already stated, depart from their letter, if in good faith, and for the certain benefit of his employer, in an unforeseen exigency. Having possession of the goods, he may insure them ; but is not bound to do so, nor even to advise insurance, unless requested, or unless a distinct usage makes this his duty. He has much discretion as to the time, terms, and manner of a sale, but must use this dis- cretion in good faith. For a sale which is precipitated by him with- out reason and injuriously is void, as unauthorized. If he send goods to his principal without order, or contrary to his duty, the principal may return them, or, acting in good faith and for the benefit of the factor, may sell them as the factor's goods. Although a factor charges no guaranty commission, he is liable to his principal for his own default ; so he is if he sells on credit, and, when it expires, takes a note to himself: but if he takes at the time of the sale a negotiable note from a party in fair credit, and the note is afterward dishonored, this is the loss of his employer, unless the factor has guaranteed it. If he sells the goods of many owners to one purchaser, taking a note for the whole to himself, and gets it discounted for his own use or accommodation, he is then liable without any guaranty for the payment of that note. So he is if he gets discounted for his own use FACTORS AND BROKERS. 207 a note taken wholly for his principal's goods. But he may discount the note to reimburse himself for advances, without making himself liable. If he sends his own note for the price to his employer, he must pay it. As a factor has possession of the goods, he may use his own name in all his transactions, even in suits at law ; but a broker can buy, sell, receipt, &c., only in the name of his employer. So, a factor has a lien on the goods in his hands for his advances, his expenses, and his commissions, and for the balance of his general account. And the factor may sell from time to time enough to cover his ad- vances, unless there be something in his employment or in his instructions from which it may be inferred that he had agreed not to do so. But a broker, having no possession, has no lien. The broker may act for both parties, and often does so. But, from the nature of his employment, a factor should act only for the party employing him. A broker has no authority to receive payment for the goods he sells, unless that authority be given him, expressly or by usage. Nor will payment to a factor discharge a debtor who has received notice from the principal not to make such payment. Generally,' neither factor nor broker can claim theii commissions until their whole service be performed, and in good faith, and with proper skill, care, and industry ; and their negligence may be given in evidence either to lessen their compensation or commissions, or to bar them altogether. But if the service begins, and is interrupted wholly without their fault, they may claim a proportionate compen- sation. If either bargains to give his whole time to his employer, he will not be permitted to derive any compensation for services rendered to other persons. Nor can either have any valid claim against any one for illegal services, or those which violate morality or public policy. A principal cannot revoke an authority given to a factor, after advances made by the factor, without repaying or securing the factor. The distinction between a foreign and a domestic factor is quite important, as they have quite different rights, duties, and powers, by the law-merchant generally. A domestic factor is one who is 208 AGENCY. employed and acts in the same country with his principal. A foreign factor is one employed by a principal who lives in a different country ; and a foreign factor is as to third parties for most purposes and under most circumstances a principal. Thus, they cannot sue the principal, because they are supposed to contract with the factor alone, and on his credit, although the principal may sue them ; and a foreign factor is personally liable, although he fully disclose his agency, and his principal is known. The following forms of powers of attorney are those most frequently required ; and from them, by suitable alterations, powers of attorney may be framed for any purpose. (71.) Power of Attorney. Know all Men by these Presents, That I (the name of the principal or party appointing) of (residence) have constituted, ordained, and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put (name of attorney) to be my true, sufficient, and lawful attorney for me and in my name and stead to (here set forth the purposes for which the power is given) Giving and hereby granting unto him, the said attorney, full power and authority in and about the premises ; and to use all due means, course, and process in law, for the full, effectual, and complete execution of the business afore described ; and in my name to make and execute due acquittance and discharge ; and for the premises to appear, and the person of me the constituent to represent before any governor, judges, justices, officers, and ministers of the law whatsoever, in any court or courts of judicature, and there on my behalf, to answer, defend, and reply unto all actions, causes, matters, and things whatsoever relating to the premises. Also to submit any matter in dispute, respecting the premises, to arbitration or other- wise ; with full power to make and substitute, for the purposes aforesaid, one or more attorneys, under him, my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, determine, accomplish, and finish all matters and things whatsoever relating to the premises, as fully, amply and effectually, to all intents and purposes, as I the said constituent, if present, ought or might personally, although the matter should require more special authority than is herein comprised, I the said constit- uent ratifying, allowing, and holding firm and valid all whatsoever my said attor- FORMS OF POWER OF ATTORNEY, ETC. 209 ne) or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. In Witness 'Whereof, I have hereunto set my hand and seal, this day of in the year of our Lord eighteen hundred and sixty- (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of us Sometimes a power of attorney is given without any power of sub- stitution. This may be by inadvertence, or because it was not intended that the attorney should substitute anybody in his place. Afterwards, it is desired to give him this power to substitute others. And this may be done by a separate instrument, as follows : (72.) Power of Substitution. Know all Men by these Presents, That I, by virtue of the power and authority to me given, in and by the letter of attor- ney of (the principal) which is hereunto annexed (or described without being annexed), do make, substitute and appoint (name of substitute) as well for me as the true and lawful attorney and substitute of the said constituent named in the saH letter of attorney, to do, execute, and perform all and every thing requisite and necessary to be done, as fully, to all intents and purposes, as the said constituent or I myself could do if personally present ; hereby ratifying and confirming all that the said attorney and substitute hereby made shall do in the premises by virtue hereof and of the said letter of attorney. In Witness Whereof, I have hereunto set my hand and seal the day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Executed and Delivered in the Presence of (73.) Power of Attorney in a Shorter Form. Know all Men Iby these Presents, That I (name of principal) have made, constituted and appointed, and by these presents do make, constitute and appoint (name of attorney) my true and lawful attorney for me and in my name, place, and stead to (here describe the thing to be done) giving and granting unto my said aitorney full power and authority to do and 210 AGENCY. perform all and every act and thing -whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In Witness "Whereof, I have hereunto set my hand and seal the day of in the year one thousand eight hundred and (Signature.") (Seal) Executed and Delivered in the Presence of (74.) Full Power of Attorney to demand and recover Debts. Know all Men by these Presents, That I (name of principal) have* constituted, ordained and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put (name of attorney) to be my true, sufficient and lawful attorney for me and in my name and stead, and to my use, to ask, demand, levy, require, recover and receive of and from all and every person or persons whomsoever the same shall or may concern, all and singular sum and sums of money, debts, goods, wares, mer- chandise, effects and things, whatsoever and wheresoever they shall and may be found due, owing, payable, belonging and coming unto me the constituent, by any ways and means whatsoever. Giving 1 and hereby Granting- unto my said attorney full and whole strength, power and authority in and about the premises ; and to take and use all due means, course and process in the law, for the obtaining and recovering the same ; and of recoveries and receipts thereof, and in my name to make, seal and execute due acquittance and discharge ; and for the premises to appear, and the person of me the constituent to represent before any governor, judges, justices,' officers and ministers of the law whatsoever, in any court or courts of judicature, and there, on my behalf, to answer, defend and reply unto all actions, causes, matters and things whatsoever, relating to the premises. Also to submit any matr ter in dispute to arbitration or otherwise, with full power to make and substitute one or more attorneys and my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, determine, accomplish and finish all matters and things whatsoever, relating to the premises, as fully, amply, and effectually, to all intents and purposes, as I the said constituent if present, ought or might personally, although the matter should require more special authority than is herein comprised, I the said constituent ratifying, allowing and holding firm and valid, all and whatsoever my said attorneyor his substitutes shall law- FORMS OP POWER OF ATTORNEY, ETC. 211 fully do, or cause to beMone, in and about the premises, by virtue of these presents. In Witness Whereof, I have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of its, (75.) Power of Attorney to sell and deliver Chattels. Know all Men by these Presents, That I the undersigned, for value received, do hereby irrevocably constitute and appoint to be my true and lawful attorney, for me and in my name and behalf, to sell, transfer and deliver, unto or any other person or persons (here describe the things to be sold) And further, one or more persons under him to substitute with like power. In Witness Whereof I have hereunto set my hand and seal this day of 18 (Witnesses.) (Signature.) (Seal.) (76.) Power of Attorney given by Seller to Buyer. Know all Men by these Presents, That I for value received, have bargained, sold, assigned and transferred, and by these presents, do bargain, sell, assign and transfer, unto (name of the buyer) the fol- lowing articles, namely, (describe the articles) and I do hereby constitute and ap- point the said (the buyer) my true and lawful attorney irrevocable, for me and in my name and stead, but to my use, to sell, assign, transfer and set over all or any part of the said (the goods) and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney or his substitute or substitutes, shall lawfully do by virtue hereof. In Witness Whereof I have hereunto set my hand and seal the day of one thousand eight hundred and (Signature.) (Seal) SigneU, Sealed and Delivered in Presence of 212 AGENCY. (77.) Power of Attorney to sell Shares of Stock, with Appointment by Attorney of Substitute. Know all Men by these Presents, That, for value received, I (name of the principal) of do hereby make, constitute, and appoint irrevocably, my true and lawful attorney (with power of substitution), for and in my name and on my behalf, to sell, assign, and transfer unto (name of buyer) share now standing in my name in the capital or joint stock of the And my said attorney is hereby fully empowered to make and pass all necessary acts for the said assign- ment and transfer. Witness my hand and seal, 186 (Signature.') (Seal.) Signed, Sealed and Delivered in the Presence of For value received, I appoint, irrevocably, (name of the substitute') as my sub- stitute, with all the powers above given to me. Witness my hand and seal, 186 (Signature.") (Seal.) Signed, Sealed and Delivered in the Presence of (78.) Power of Attorney to subscribe for Stock. Know all Men by these 'Presents, That I the undersigned, do hereby irrevocably constitute and appoint to be my true and lawful attorney, for me and in my name and behalf, to subscribe for shares in the capital stock of the And further, one or more persons under him to substitute with like power. In Witness Whereofj I have hereunto set my hand and seal this day of 18 Witnesses present, (Seal.) (79.) Proxy, or Power of Attorney to vote. Know an Men by these Presents, That I (name of the principal) of do hereby appoint to be my substitute and proxy for me and in my name and behalf to vote at any election of directors FORMS OF POWER OF ATTORNEY, ETC. 213 or otter officers, and at any meeting of the stockholders of said company as fully as I might or could were I personally present. In Witness Whereof^ I have hereunto set my hand and seal this day of 18 Witnesses present, (Signature.) (80.) Proxy t revolting all Previous Proxies. Know all Men by these Presents, That I the undersigned, stockholder in the (name of the company) do hereby appoint my true and lawful attorney, with power of substitution, for me and in my name, to vote at the meeting of the stockholders in said company, to be held at or at any adjournment thereof, with all the powers I should possess if personally present, hereby revoking all previous proxies. 18 Witness. (Signature.) (81.) Proxy, with Affidavit of Ownership, in Use in New York. Know all Men by these Presents, That I, do hereby constitute and appoint my attorney and agent for me and in my name, place, and stead, to vote as my proxy at any election of directors of the according to the number of votes I should be entitled to vote if then personally present. In Witness Whereof, I have hereto set my hand and seal, this day of one thousand eight hundred and (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of I do swear (or affirm) that the shares on which my attorney and agent in the above proxy is authorized to vote, do not belong, and are not hypothecated, to the said company, and that they are not hypothecated or pledged to any other cor- poration or person whatever ; that such shares have not been transferred to me for the purpose of enabling me to vote thereon at the ensuing election, and that I have not contracted to sell or transfer them upon any condition, agreement, or understanding, in relation to my manner of voting at the said election. Sworn to this day of 18 , before me, (Signature.) 214 PARTNERSHIP. (82.) Power to receive Dividend. Know all Men by these Presents, That I of do authorize, constitute, and appoint t to receive from the (name of the company) the dividend now due to me on all stock Standing to my name on the books of the said company, and receipt for the same : hereby ratifying and confirming all that may lawfully be done hi the premises by virtue hereof. Witness my hand and seal this day of 18 (Signature.) (Seal.) Signed, Sealed and Delivered in the Presence of CHAPTER XVm. SECTION L WHAT A PARTNERSHIP IS. WHEN two or more persons combine their property, labor, or skill, for the transaction of business for their common profit, they enter into partnership. Sometimes the word " firm " is used as synony- mous with partnership; sometimes, however, it means only the copartnership-name. A single joint transaction, out of which, considered by itself, neither profit nor loss arises, will not create a partnership. If a joint purchase be made, and each party then takes his distinct and several share of the goods, this is no partnership. Any persons competent to transact business on their own account may enter into partnership for that purpose, and no others. HOW A PARTNERSHIP MAY BE FORMED. 215 SECTION H. + HOW A PARTNERSHIP MAY BE FORMED. No especial form or manner is necessary. It may be by oral agreement, or by a written agreement, which may have a seal or not. But the liability and authority of the partners begin with the actual formation of the partnership, and do not wait for the execution of any articles. In general, if there be an agreement to enter into business, or into some particular transaction, together, and share the profits and losses, this constitutes a partnership, which is just as extensive as the business proposed to be done, and not more so. The parties may agree to share the profits in what proportion they choose ; but in the absence of any agreement, the law presumes equal shares. They may agree as to any way of dividing the losses, or even that one or more partners alone shall sustain them all, without loss to the rest. And this agreement is valid as between themselves ; but it will not protect those partners who were to sustain no loss from responsibility to third parties, unless the third parties knew of this agreement between the partners, and gave credit accordingly. If A, B, & C, being partners, agree that A should not lose any thing by their business, and a person knowing this bargain dealt with the firm on the credit of B & 0, he could not call on A. But an agreement exempting partners from loss generally, or from loss beyond the amount invested, will only operate between the part- ners, unless it can be shown that the third party not only knew the agreement, but contracted with the firm on the basis of this agree- ment. And, generally, stipulations in articles of copartnership limiting the power of a partner, are not binding on third parties who are ignorant of them. Each partner is absolutely responsible to every creditor of the copartnership for the whole amount of the debt. And, if thereby obliged to suffer loss, his only remedy is against the other partners. Although partners may agree and provide as they will in their articles, a long neglect of these provisions will be regarded as a mutual waiver of them. 216 PARTNERSHIP. Persons may be liable as partners to third parties or strangers, who are not partners as between themselves. Whether they are partners as to each other would generally be determined by the in- tention of the parties, as drawn from their contract, whether oral or written, under the ordinary rules of evidence and construction. But whether one is liable as a partner to one who deals with the firm must depend in part upon his intention, but more upon his acts ; for if by them he justifies those who deal with the firm in thinking him a partner in that business, he must bear the responsi- bility ; as if he declare that he has a joint interest in the property, or conducts the business of the firm as a partner, accepting bills, or suffers his name to be used upon cards, or in advertisements, or on signs, or in any similar manner. The declarations or acts of one person cannot, however, make another person liable as partner, without co-operation or consent, by word or act, on his part. The rule is this : that one who thus holds himself out as a partner, when he really is not oAe, is responsible to a creditor who on these grounds believed him to be a partner ; but not to one who knew nothing of the facts, or who, knowing them, knew also that this person was not a partner. A secret partner is one who is actually a partner by participation of profit, but is not avowed or known to be such ; and a dormant partner is one who takes no share in the conduct or control of the business of the firm. Both of these are liable to creditors (even if the creditors did not know them to be members of the firm), on the ground of their interest and participation in the profits, which consti- tute, with the property of the firm, the funds to which creditors may look for payment. A nominal partner is one who holds himself out to the world as such, but is not so in fact. He is liable to creditors of the firm, on the ground that he justifies them in trusting the firm on his credit, and, indeed, invites them to do so, by declaring himself to be a partner. The principal test of membership in a mercantile firm is said to be the participation in the profits. Thus, if one It/nd money to be used in a business, for which he is to receive a share in the profits, this would make him a partner ; and if he is to receive lawful interest, and, in addition thereto, a share of the profits, this would generally make him liable as a partner to a creditor of the firm. HOW A PARTNEKSHIP MAY BE DISSOLVED. 217 Sometimes a clerk or salesman, or a person otherwise employed for the firm, receives a share of the profits, instead of wages. For- merly it was held, that if such person received any certain share, say " one-tenth part of the net annual profits," this made him liable as a partner ; but if he received " a salary equal in amount to one- tenth of the net profits," this did not make him a partner. Now, the courts would look more at the actual intention of the parties, and their actual ownership of an interest in the funds of the partner- ship, and not be governed by the mere phraseology used. If in fact he works for wages, although these wages are measured by the profits, he is no partner, and therefore not liable for the debts, as every partner is. Hence, factors and brokers for a commission on the profits, masters of vessels who engage for a share of the profits, or seamen employed in whale-ships, are none of them partners. A partnership usually has but one business name ; but there does not seem to be any legal objection to the use of two names, especially for distinct business transactions ; as A B & Co. for general business, and the name of A & Co. for the purpose of making or indorsing negotiable paper. SECTION m. HOW A PARTNERSHIP MAT BE DISSOLVED. IP the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dis- solved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding. If either partner were to undertake to assign his interest, for the purpose of withdrawing from the firm, against the will of the partners, without good reason, and in fraud of his express agree- ment, a court of equity would interfere and prevent him. For the 218 PAETNERSHIP. assignment of a partner's interest, or of his share of the profits, operates at once a dissolution of the partnership. Such assignment may transfer to the assignee the whole interest of the assignor, but cannot give him a right to become a member of the firm. There seems to be an exception to this rule where the partnership is very numerous, and the manner of holding shares, by scrip or otherwise, indicates the Original intention of making the shares transferable. Such a partnership is in effect a joint-stock company ; which form of association is not usual here, because incor- poration is better, and is easily obtained. Death of a general or even of a special partner operates a disso- lution ; and the personal representatives of the deceased do not take his place, unless there be in the articles an express provision that they shall. And such provisions aro construed as giving the heirs or personal representatives the right of electing whether to become partners or not. If either party is unable to do his duty to the partnership, as by reason of insanity, or a long imprisonment ; or if he be guilty of material wrong-doing to the firm ; a court of equity will decree a dissolution. And if the original agreement were tainted with fraud, the court will declare it void, from its beginning. "Whenever a court of equity decrees a dissolution of the partner- ship, it will also decree that an account be taken between the partners, if requested by either partner. And if necessary to do justice, it will decree a sale of the effects and a distribution of the proceeds, after a consideration of all the facts of the case and the whole condition of the firm. Such a decree will be made if a part- ner die or become bankrupt. If the whole interest of a copartner is levied upon and sold on execution, this makes a dissolution, and the purchaser becomes,- like every other assignee of a partner, not a partner, but only a tenant in common (that is, a joint owner) with the other partners ; but if the levy and sale are only of a part, which may be severed from the rest, this may not operate a dissolution except as to that part. If one partner retires, this operates in law a dissolution, and the remaining partners constitute in law a new firm, although in fact the old firm frequently continues and goes on with its business, with or without new members, as if it were the same firm. THE PROPERTY OP THE PARTNERSHIP. 219 The partner retiring should withdraw his name from the firm, and give notice, by the usual public advertisement, of his retirement, and also, by personal notice, by letter or otherwise, to all who usually do business with the firm ; and after such notice he is not responsible, even if his name be retained in the firm by the other partners, if this is done without his consent. Nor is he responsible to any one who has in any way actual knowledge of his retirement. A dormant or secret partner is not liable for a debt contracted after his retirement, although he give no notice ; because his liability does not rest upon his giving his credit to the firm, but upon his being actually a partner. SECTION IV. THE PROPERTY OP THE PARTNERSHIP. A PARTNERSHIP may hold real estate as well as personal estate, and a partnership may be formed to trade in land, or to cultivate land. But the rules of law in respect to real estate, as in relation to title, conveyance, dower, inheritance, and the like, make some difference. As far, however, as is compatible with these rules, it Beenis to be agreed that the real estate of the partnership is treated as if it were personal property, if it have been purchased with the partnership funds and for partnership purposes. There is some difficulty in explaining this matter to those who are not acquainted with the peculiar law of real estate. Thus, no sale of land is valid except by deed, recorded: and only one who is thus a grantee under seal by record has a legal title. But a court of equity acknowledges and protects an equitable title in those who really possess all the interest in the land ; as partners do who have paid for it, though it stands in the name of one partner only. But a court of equity cannot disregard the laws of conveyance and record, and therefore says that this partner is the only legal owner, but that he owns the land as trustee for the firm. And then they compel him to sell it, or otherwise dispose of it, as the interests of the firm or of their creditors require. 16 220 PAET2s T EESHIP So land thus purchased does not go to the heirs of the partner or partners in whose name it may stand, but is first subject to the debts of the firm, and then to the balance which may be due to either partner on winding up their affairs. But when these debts and claims are adjusted, any surplus of the real estate will then descend as real estate, and not as personal estate. . Improvements made with partnership funds on the real estate of a partner will be regarded as partnership property. The widow has her dower only after the above-mentioned debts and claims are adjusted. And while the legal title is protected, as it must be for the purpose of conveyance and other similar purposes, the person holding this legal title will be held as a trustee for the partnership, if the partnership be entitled to the beneficiary interest. But a purchaser of partnership real property, without notice or knowledge, from a partner holding the same by a legal title, is pro- tected against the other partners. If, however, the purchaser has such knowledge, the conveyance may be avoided as fraudulent, or he may be held as trustee, the land being in his hands chargeable with the debts and claims of the partnership. SECTION V. THE AUTHORITY OP EACH PARTNER, AND THE JOINT ULA&TLTT* OF THE PARTNERSHIP. THIS authority is very great, because the law-merchant makes each partner an agent of the whole partnership, with full power to bind all its members and all its property, in transactions which fall within the usual business of the firm ; as loans, borrowing, sales, even of the whole stock, pledges, mortgages, or assignments ; and this last extends even to an honest and prudent assignment of the whole stock and personal property to trustees to pay partnership debts. It extends to the making or indorsing negotiable paper ; and to transactions out of the usual business of the firm, if they arose from and were fairly connected with that business. Nor is any party dealing with a partner affected by his want of AUTHORITY OF EACH PARTNER, ETC. 221 good faith towards the partnership, unless he colluded with the part- ner, and participated in his want of good faith, by fraud or gross negligence. But a holder of a note or bill signed or indorsed by a partner without authority has no claim against the partnership, if he knew or should have known the want of authority. A partner cannot, in general, bind the firm by a guaranty, a let- ter of credit, or a submission to arbitration, without authority, because these things do not belong generally and properly to com- mercial business. But any thing so done by a partner may be adopt- ed and ratified by the partnership, and then it has the same force as if originally authorized. And this ratification may be formal and express, or consist only of acts which distinctly imply it ; such as assenting to and acting with reference to it ; and especially receiv- ing and holding the beneficial results of it ; as, for example, taking and holding money paid for it. By the earlier and more stringent rules of law, a partner could not bind his copartners by an instrument under seal, unless he was himself authorized under seal; and their subsequent acknowledg- ment of his authority did not cure the defect. Now, however, a partner may bind his firm by an instrument under seal, if it be in the name and for the use of the firm, and in the transaction of their usual business, provided the other copartners assent thereto before execution, or adopt and ratify the same afterwards ; and they may assent or ratify by word as well as by seal ; or provided he could have made the same conveyance, or done the same act effectually, with- out a deed. And a deed executed by one partner in the presence and with the assent of the other partners will bind them. A partnership has no seal at law, and can have none : only a per- son or a corporation can have a seal. Instruments are sometimes executed, " A B & Co.," and a seal is affixed to the name. This is, strictly speaking, no seal at all ; and if the instrument needs a seal to make it valid, as if it were a deed of land, it would, at law, bo wholly void. But the courts in some of our States are somewhat lax on this subject, and might construe it as the seal of each one of the partners to give the instrument validity. A majority of the members cannot conclusively bind the minority, unless in reference to the internal concerns of the firm ; as, for 222 PARTNERSHIP. example, the salary or appointment of a clerk, the hiring or fitting- up of a counting-room, the manner of keeping accounts, and the like. But one member may, so far as he is concerned, arrest a negotiation which was only begun, and prevent a bargain which would be binding on him, by giving notice to the third party of his dissent and refusal in season to enable him to decline the bargain without detriment. Partners must act as such, to bind each other. Thus, if a partner makes a note, and signs it with his own name and his partner's name, as a joint and several note, it does not bind his partner, for he had no authority to make such a note. If the name of one partner be also the name of the firm, for John Smith and Henry Robinson may do business as partners under the name of "John Smith," this name is not necessarily the name of the firm when used in a note or contract ; and if the part- ner whose name is used carries on mercantile business for himself, it will not be supposed to be used as the name of the firm, without sufficient proof. Persons may give a joint order for goods without becoming jointly liable, if it appear otherwise that credit was given to them severally. Nor will one have either the authority or the obligation of a partner cast upon him by an agreement of the firm to be governed by his advice. Nor shall one be charged as partner with others, unless he has incurred the liability by his own voluntary act. The reception of a new member constitutes, in law, a new firm ; but the new firm may recognize the old debts, as by express agree- ment, or paying interest, or other evidence of adoption, and then the new firm is jointly liable for the old debt. But there must be some fact from which the assent of the new member to this adop- tion of the old debt may be inferred, for his liability is not to be presumed. A notice in legal proceedings, abandonment to insurers by one who was insured for himself and others, a notice to quit of one of joint lessors or lessees who are partners in trade, notice to one part- ner of the dishonor of a note or bill bearing the name of the firm, a release to one partner, or by one partner, will bind all the part- ners, and render them jointly liable. But a service of legal process should be made upon each partner personally. AUTHORITY OF EACH PAKTNEK, ETC. 223 If money be lent to a partner for partnership purposes, it creates a partnership debt ; but not if lent expressly on the individual credit of the person borrowing ; and not if the borrowing partner receives it to enable him to pay his contribution to the capital of the firm. Though the money be not used for the firm, if it was bor- rowed by one partner on the credit of the firm, in a manner and under circumstances justifying the lender in trusting to that credit, it creates a partnership debt. And if a partner uses funds in his hands as trustee, for partnership purposes, the firm are certainly jointly bound, if it was done with their knowledge. And if it was done without their knowledge, and the partners are distinctly and directly benefited by the transaction, they will be deemed to have authorized it. If in any case a person, knowing the existence of the firm, gave credit to a single partner only, then he can look only to that partner, and not to the firm, although the money was applied to, and used for, partnership purposes. But if the partner held himself out as borrowing for the firm, and the lender without any want of due care gave credit to the firm, and the transaction was a fair business transaction on the part of the lender, the firm will be liable, although the money is fraudulently appropriated by the partner to his own use. In the absence of evidence showing to whom the credit was given, the fact that money lent to one partner was applied to the use of the firm will make the firm liable for the payment ; but not if the part- ner employed it as his contribution to increase the capital of the firm. If the purchaser of goods or the borrower of money have a dor- mant and secret partner, and the goods were bought or the money borrowed for partnership purposes, the seller or lender may look to both partners for payment, unless the seller or lender, knowing all the partners, gave credit to one only. The firm is liable only to one who deals with a partner in good faith. Thus, if one receives negotiable paper bearing the name of a firm, knowing that it is not in the business of the firm, and is given for no consideration received by the firm, he cannot hold the firm. And if a creditor of one partner receive for his separate 224 PAKTNERSHIP. debt a partnership security, this would be a fraud, unless the part- ner had, or was supposed by the creditor to have, the authority of the rest. If he supposed the partner had this authority, he cannot hold the partnership if the partner had not the authority, unless the partner- ship had caused him to believe it. And if the partnership security be transferred for two considerations, one of which is private and fraudulent, and the other is joint and honest, the partnership is bound for so much of it as is not tainted with fraud, and only for that. The partnership may be liable for injury caused by the criminal or wrongful acts of a partner, if these were done in the transaction of partnership business, and if it was the partnership which gave to the wrong-doer the means and opportunity of doing the wrong. But an illegal contract will not bind the copartners, for the parties enter- ing into it must be presumed to know its illegality ; and the law enforces no bargain that is contrary to law. The acknowledgment of one who had been a partner, after the dissolution of the partnership, may take the debt out of the statute of limitations as to him, but not so as to restore the liability of all the partners without their assent. SECTION VI. REMEDIES OF PARTNERS AGAINST EACH OTHER. IT is seldom that a partner can have a claim against another partner, as such, which can be examined and adjusted without an investigation into the accounts of the partnership, and, perhaps, a settlement of them. Courts of law have "ordinarily no adequate means of doing this ; and therefore it is generally true that no part- ner can sue a copartner at law for any claim growing out of partner- ship transactions and involving partnership interests. But the ob- jection to a suit at law between partners goes no further than the reason of it ; and, therefore, one may sue his copartner upon his agreement to do any act which is not so far a partnership matter as to involve the partnership accounts. REMEDIES OF PARTNERS AGAINST EACH OTHER. 225 If the accounts are finally adjusted, either partner may sue for a balance; and so it would be if the accounts generally remained open, but a specific part of them were severed from the rest, and a balance found on that. The rule is generally laid down, that an action cannot be sustained by a partner against a partner for a balance, unless there is an express promise to pay it. But such promise would be inferred in all cases in which an account had been taken, and a balance admitted to be due. In general, any action at law between partners can be maintained, only when a rendering of judgment in this action will completely ter- minate all partnership matters, so that no further cause of action can grow out of them. What a court of law cannot do as to actions between partners a court of equity can ; and, generally, a court of equity has a full jurisdiction over all disputes and claims between partners, and may do whatever is necessary to settle them in conformity with justice. A partner may sue his copartner for money advanced before the partnership was formed, although the loan was made to promote the partnership. And for work done for the firm before he became a member of it, he may sue those who were members when he did the work. And he may sue a copartner on his note or bill, although the consideration was on partnership account ; but, in general, no action at law can be maintained for work and labor performed, or money expended for the partnership. A partner who pays more than his proportion of a debt of the part- nership cannot demand specific contribution from his copartners, but must charge his payment to the firm. The reason is, that they may have claims against him on other accounts, and they must be all settled together to strike the balance. If one of a firm be a member also of another firm, the one firm cannot sue the other ; for the same person cannot be plaintiff and defendant of record. A cannot sue A ; and therefore A, B, & cannot sue C, D, & E. In all these cases an adequate remedy may be found in a court of equity. If a firm have a negotiable note which it cannot sue, because one of its own firm is liable upon it and must be made defendant, it can 226 PABTNEKSHIP. indorse the note over, and the indorsee may sue it in his own name, as we have before stated. The partners are entitled to perfect good faith from each copart- ner ; and a court of equity will interfere to enforce this. No partner will be permitted to treat privately, and for his own benefit alone, for a renewal of a lease, or to transfer to himself any benefit or interest properly belonging to the firm. And so careful is a court of equity in this respect, that it will not permit a copartner, by his private contract or arrangement, to subject himself to a bias or inter- est which might be injurious to the firm, and conflict with his duty to them, but will declare void any contract of this kind. SECTION VTL BIGHTS OF THE FIRM AGAINST THIRD PARTIES. IF a partner sells the goods of the firm in his own name, the firm may sue for the price. But the rights of one who deals in good faith with a copartner, as with him alone, are so far regarded, that he may set off any claim, or make use of any other defences against the suit of the firm, which he could have made had the person with whom he dealt sued alone. Therefore, if A honestly bought goods of a firm from a partner whom he supposed to be sole owner of them, and paid him the price, the firm cannot recover this price from the buyer, although the seller sold the goods fraudulently, and cheated the firm out of the money, but must charge the price to the selling partner. A guaranty to a copartner, if for the use and benefit of the firm, gives to them a right of action. A new firm, created by some change in the membership of an old firm, is entitled to the benefit of a guaranty given tc the old hrm, even if sealed, provided it shall distinctly appear that the instrument was intended to have that effect, and extend to the new firm. EIGHTS OF CREDITORS IN RESPECT TO FUNDS. 227 SECTION VIH. BIGHTS OF CREDITORS IN RESPECT TO FUNDS. THE property of a partnership is bound to pay the partnership debts ; and, therefore, a creditor of one copartner has no claim to the partnership funds until the partnership debts are paid. If there be then a surplus, he may have that copartner's interest therein, in payment of his private debt. If a private creditor attaches partnership property, or in any way seeks to appropriate it to his private debt, the partnership debts being unpaid, he cannot hold it, either at law or in equity. Such attachment or appropriation is wholly subject to the paramount claims of the partnership creditors, and is wholly defeated by the insolvency of the partnership, although the partnership creditors have not brought any actions for their debts. Hence, if a creditor of A attaches his interest in the property of A, B, & Co., and a creditor of A, B, & Co. attaches the same property, the first attachment is postponed to the second ; that is, it has no effect until the debt of the second creditor is fully satisfied, and then it is good for the surplus of property. If, however, one partner is dormant and unknown, the creditor of the other attach- ing the stock is not postponed to the creditor who discovers the dormant partner and sues him with the other; unless the first attaching creditor's claim has no reference to the partnership busi- ness, and that of the second attaching creditor has such reference. The partnership creditors are restrained from appropriating the private property of the copartners until the claims of their private creditors are satisfied in courts of equity. And some recent adju- dications indicate that the rule will become established at law. I think the law ought to be, and that it is now tending to become, this. A partnership is a kind of body by itself, somewhat like a corporation. It has its own funds, and its own debts. The individual members may also have each his own funds and his own debts. The funds of the partnership should first be applied to the debts of the partnership ; and, if there be any surplus, the members have it, 228 PAKTNEBSHIP. and theii creditors get it. So the private funds of each member should first be applied exclusively to the payment of that person's private debts ; and, when they are wholly paid, the surplus should go to the partnership creditors, because each partner is responsible for the partnership debts. This rule prevails on the continent of Europe very generally. It is now quite certain that the levy of a private creditor of one copartner upon partnership property can give him only what that copartner has ; that is, not a separate personal possession of any part or share of the stock or property, but an undivided right or interest in the whole, subject to the payment of debts and the settlement cf accounts ; including also the right to demand an account. As to how such levy and sale of the interest of one copartner shall be made by the sheriff, there is much diversity both of practice and of authority. Upon principle, we think the sheriff can neither seize, nor transfer by sale, either the whole stock or any specific portion of it. He should, we think, without any actual seizure, sell all the interest of the defendant partner in the stock and property of the partnership ; much in the same way in which he would sell his right to redeem a mortgage, or any other incorporeal right, subject to attachment. The purchaser would then have a right to demand arj account and settlement, and a transfer to himself of any balance or property to which the copartner whom he sued would have been entitled. Where the trustee process, or process of foreign attachment, is in use, the better way would be for the sheriff to return a general at- tachment of all the interest of the debtor in the partnership property, and summon the other partners as the trustees of the debtor. It must be stated, however, that the rules of law in regard to the liability of partnership property for the private debts of partners, and as to how any such liability may be enforced, are, at present, some- what obscure and uncertain. THE EFFECTS OF DISSOLUTION. 229 SECTION IX. THE EFFECTS OF DISSOLUTION. IP the dissolution is caused by the death of any partner, the whole property goes to the surviving partners. They hold it, however, not as their own, but only for the purpose of settlement; and therefore they have, in relation to it, all the power which is necessary for that purpose, and no more. If they carry on the business with the partnership funds, they do so at their own risk ; and the represen- tatives of the deceased may require their share of the capital, and choose between calling on them, in addition, for interest, or for a share of the profits. The survivors are not partners, but tenants in common (joint owners) with the representatives of the deceased of the stock or pro- perty in possession ; and have all necessary rights to settle the affairs of the concern and pay its debts. After a dissolution, however caused, one who had been a partner has no authority to make new contracts in the name of the firm, as to make or indorse notes or bills with the name of the firm, even if he be expressly authorized* to settle the affairs of the firm. There must be a distinct authority to sign for the others who were formerly partners. A parol autho- rity will be sufficient, even if the general terms of the partnership had been reduced to writing. It is common, where a partnership is dissolved by mutual consent, to provide that some one of the partners shall settle up the affairs of the concern, collect and pay debts, and the like. But this will not prevent any person from paying to any partner a debt due to the firm ; and, if such payment be made in good faith, the release or discharge of the partner is effectual. If all the debts were assigned and transferred to any person, as his property, any debtor who had notice of this would be bound to make payment to this person alone ; and, if he paid anybody else, he would be obliged to pay the money over again. It is frequently provided, that one partner shall take all the prop- erty and pay all the debts ; but this agreement, though valid between the partners, has no effect upon the rights of third parties against 230 PARTNEKSHIP. the other partners ; for they have a valid claim against all the partners, of which they cannot be divested without their consent. This consent of the creditor may be inferred, but not from slight evidence ; thus, not from receiving the single partner's note as a collateral security, nor from receiving interest from him on the joint debt, nor from a mere change in the head of the account, charging the single partner and not the firm. Still, as the creditor certainly can assent to this arrangement, and accept the indebtedness of one partner instead of that of the firm, so it must be equally clear that such assent and intention will bind him, if distinctly proved by circumstances. SECTION X. LIMITED PARTNERSHIPS. THESE have been introduced into some of our States, by statutes, which differ somewhat in their provisions. Generally, they require, first, one or more general partners, whose names shall be known ; secondly, special partners, who do not appear as members, nor possess the powers or discharge the duties of actual partners ; thirdly, the sum to be contributed by the special partners shall be actually paid in ; lastly, all these arrangements, with such other information as may be needed for the security of the public, must be verified under oath, signatures of all the parties, and acknowledg- ment before a magistrate, and correctly published. When these requisites are complied with, the special partners may lose all they have put in, but cannot be held to any further responsibility. But any neglect of them, or any material mistake in regard to them, even on the part of the printer of the advertisement, wholly destroys their effect; and then the special partner is liable for the whole debt, precisely like a general partner. In a New- York case, the amount contributed by the special part ner was, by mistake of the printer, stated at $5,000, instead of $2,000, and it was held that the associates were liable as general partners, although the plaintiff did not show that he was actually misled by the error. In another New- York case, it was held that an ARTICLES OF COPARTNERSHIP, 231 assignment of the partnership property, providing for the payment of a debt due to the special partner, ratably with the other creditors of the firm, or before all the other creditors are satisfied iii full for their debts, is void as against the creditors ; but it would be valid as against the assignor and those creditors who think proper to affirm it. (83.) Articles of Copartnership between two Tradesmen* Articles of Agreement, Had, made, concluded, and agreed upon, this day of A.D. between of trader, and of trader. First of all, the said and have agreed, and by these presents do agree, to become copartners together in the art or trade of and all things thereto belonging, and also, in buying, selling, vending, and retailing all sorts of wares, goods, and commodities belonging to the said trade of which said copartnership, it is agreed, shall continue from for and during, and unto the full end and term of years, from thence next ensuing, and fully to be complete and ended. And to that end and purpose he the said hath the day of date of these presents, delivered in as stock, the sum of and he the said the sum of to be used, laid out, and employed, in common trade between them, for the manage- ment of the said trade of to their utmost benefit and advantage. And it is hereby agreed between the said parties, and the said copartners, each for himself respectively, and for his own particular part, and for Lis executors and administrators, that each doth covenant, promise, and agree, to and with the other of them, his executors and administrators, by these presents, in manner and form following (that is to say) that they the said copartners shall not nor will, at any time hereafter, use, exercise, or follow the trade of aforesaid, or any other trade whatsoever during the said term, to their private benefit and advantage ; but shall and will, from time to time, and at all times, during the said term (if they shall so long live), do then- and each of their best and utmost endeavors, in and by all means possible, to the utmost of their skill and power, for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell, and merchandise, with the stock aforesaid, and the increase thereof in the trade of aforesaid, without any sinister intentions or fraudulent endeavors whatsoever. And also that they the said copartners shall and will, from time to time, and at all times hereafter, during the said term, pay, bear, and discharge, equally between them, the rent of the shop, which they the said copartners shall rent or hire, for the joint exercising or managing of the trade 232 PARTNERSHIP. aforesaid. And that all such gain, profit, and increase, as shall come, grow, or arise, for or by reason of the said trade, or joint business as aforesaid, shall be from time to time, during the said term, equally and proportionably divided between them the said copartners, share and share alike. And also that all such losses as shall happen in the said joint trade, by bad debts, ill commodities, or otherwise without fraud or covin, shall be paid and borne equally and proportionably between them. And further, it is agreed by and between the said copartners, that there ehall be had and kept from tune to time, and at all limes during the said term and joint business and copartnership together as aforesaid, perfect, just, and true books of accounts, wherein each of the said copartners shall duly enter and set down, as well all money by him received, paid, expended and laid out, in and about the management of the said trade, as also all wares, goods, commodities, and merchan- dises, by them or either of them bought and sold by reason or means or upon account of the said copartnership, and all other matters and things whatsoever, to the said joint trade, and the management thereof, in any wise belonging or apper- taining, which said books shall be used in common between the said copartners, so that either of them may have free access thereto without any interruption of the other. And also that they the said copartners, once in three months, or oftener if need shall require, upon the reasonable request of one of them, shall make, yield, and render, each to the other, or to the executors or administrators of the other, a true, just, and perfect account of all profits and increase, by them or either of them made, and of all losses by them or either of them sustained, and also of all pay- ments, receipts, and disbursements whatsoever, by them or either of them made or received, and of all other things by them or either of them acted, done, or suffered in the said copartnership and joint business as aforesaid ; and the same account being so made, shall and will clear, adjust, pay, and deliver, each unto the other, at the time of making such account, their equal shares of the profits so made as aforesaid ; and at the end of the said term of or other sooner determination of these presents (be it by the death of one of the said part- ners or otherwise), they the said copartners, each to the other, or in case of the death of either of them, the surviving party to the executors or administrators of the party deceased, shall and will make a true, just, and final account of all things as aforesaid, and divide the profits aforesaid, and hi ah 1 things well and truly adjust the same, and that also upon the making of such final account, ah* and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, whether consisting of money, wares, debts, shall be equally parted and divided between them the said copartners, their exec- utors, or administrators, share and share alike. In Witness Whereof, &c. (Signatures.) ARTICLES OF COPARTNERSHIP. 233 Various Covenants and Clauses which may be introduced in Articles of Copart- nership according to circumstances, Not to trust any one whom the Copartner shall forbid. And that neither of the said parties shall sell or credit any goods or merchan- dise belonging to the said joint trade, to any person or persons, after notice in writing from the other of 'the said parties, that such person or persons are not to be credited or trusted. Not to release any Debt without Consent, &c. And that neither of the said parties shall, without the consent of the other, release or compound any debt or demand, due or coming to them on account of their said copartnership, except for so much as shall actually be received, and brought into the stock or cash account of the said partnership. Not to be bound, or indorse Bills, &c., for any one without Consent, &c. And that neither of the said parties shall, during this copartnership, without the consent of the other, enter into any deed, covenant, bond, or judgment, or become bound as bail or surety, or give any note, or accept or indorse any bill of exchange for himself and partner, without the consent of the other first had and obtained, with or for any person whatsoever. Neither Party to assign his Interest, &c. And it is agreed between the said parties, that neither of the said parties shall, without the consent of the other, obtained in writing, sell or assign his share or interest in the said joint trade, to any person or persons whatsoever. Principal ClerJe to be Receiver of Moneys, fto. That the principal clerk for the time being shall be the general receiver of all the money belonging to the said joint trade, and shall thereout pay all demands ordered by the said parties, and shall from time to time pay the surplus cash to such banker as the said partners shall nominate. Parties to draw quarterly, &c. That it shall be lawful for each of them to take out of the cash of the joint stock the sum of quarterly, to his own use, the same to be charged on account, and neither of them shall take any further sum for his own separate use, without the consent of the other hi writing ; and any such further sum, taken with such consent, shall draw interest after the rate of per cent, and shall be payable together with the interest due, within days after notice ir writing given by the other of the said parties. 234 PARTNERSHIP. i (84.) Shorter Form of Articles of Copartnership. Articles of Agreement, Made the day of one thousand eight hundred and between (the names and residence of the two parlies) as follows : The said parties above named have agreed to become copartners in business, and by these presents do agree to be copartners together under and by the name or firm of in the buying, selling, and vending all sorts of goods, wares, and merchandise to the said business belonging, and to occupy the their copartnership to commence on the day of and to continue and to that end and purpose the said (here state the contributions of each of the parties) to be used and employed in common between them for the support and manage- ment of the said business, to their mutual benefit and advantage. And it is agreed by and between the parties to these presents, that at all times during the continuance of their copartnership, they and each of them will give their attend- ance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest, profit, benefit, and adv.an- tage, and truly employ, buy, sell, and merchandise with their joint stock, and the increase thereof, in the business aforesaid. And also that they shall and will at all times during the said copartnership bear, pay, and discharge equally between them, all rents and other expenses that may be required for the support and man- agement of the said business ; and that all gains, profit, and increase that shall come, grow, or arise from or by means of their said business, shall be divided between them (state whether equally, or in what proportions) and all loss that shall happen to their said joint business, by ill commodities, bad debts, or otherwise, shall be borne and paid between them. And it is agreed by and between the said parties, that there shall be had and kept at all times during the continuance of their copartnership, perfect, just, and true books of account, wherein each of the said copartners shall enter and set down, as well all money by them or either of them received, paid, laid out, and expended in and about the said business, as also all goods, wares, commodities, and merchandise, by them or either of them, bought or sold by reason or on account of the said business, and all other matters and things whatsoever to the said business and the management thereof in any wise belonging; which said books shall be used in common between the said copartners, so that either of them may have access thereto, without any interruption or hindrance of the other. And also the said co-partners, once in or oftener if necessary, shall make, yield, and render, each to the other, a true, just, and perfect inventory and account of all profits and increase by them, or either of them, made, and of all losses by them, or either of them, sustained ; and ABTICLES OF COPARTNERSHIP. 23u also all payments, receipts, disbursements, and all other things by them made, received, disbursed, acted, done, or suffered in this said copartnership and business, and the same account so made shall and will clear, adjust, pay, and deliver, each to the other, at the time, their just share of the profits so made as aforesaid. And the said parties hereby mutually covenant and agree to and with each other, that, during the continuance of the said copartnership, neither of them shall nor will indorse any note, or otherwise become surety for any person or persons whomsoever, without the consent of the other of the said copai tners. And at the end, or other sooner determination of their copartnership, the said copartners, each to the other, shall and will make a true, just, and final account of all things relating to their said business, and in all things truly adjust the same ; and all and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either hi money, goods, wares, fixtures, debts, or otherwise, shall be divided between them. In Witness Whereof, (Signatures.) (85.) Certificate of a Limited Partnership, with AcJenowledgment and Oath. This is to Certify, That the undersigned have, pursuant to the provisions of the Statutes of the State of formed a limited partnership, under the name or firm of that the general nature of the business to be transacted is (describe the business) and that the general partner and is the special partner and that the said (the special partner) hath contributed the sum of dollars, as capital towards the common stock, and that the said partnership is to commence on the day of and is to terminate on the day of 18 Dated this day of one thousand eight hundred and (Signatures.) County of as. On the day of one thousand eight hundred and before me came to be the individuals described in, and who executed the above certificate, and they severally acknowledged that they executed the same. County of 88. the general partner named in the above certificate, being duly sworn, doth depose, and say, that the sum specified in the said certificate to have been contributed by the special partner to the common stock has been actually and in good faith paid in cash. Sworn this day of 18 before me, 17 236 ARBITKATION. In some of the States, the oath should be made by the general partner ; and it would always be safe for all the partners, general and special, to take the oath, and be included in the certificate. CHAPTER XIX. SECTION I. OF THE SUBMISSION AND AWARD. [By the Submission (or reference) is meant the submission of the question or questions to arbitrators.] THE law favors arbitration in many respects as a peaceable and inexpensive mode of settling difficulties. Parties may agree to refer a question by an oral agreement, or by a written agreement. The form is not essential. But it is always best to reduce the agreement to writing, and to express it carefully. But parties may, in many of our States, go before a magistrate and agree to refer in the man- ner pointed out by the statute. In all of them a ca.se may be taken out of court and submitted to referees under an order of court. The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the submission. The authority given to the arbitrators should not be exceeded ; and the precise question submitted to them, and neither more nor less, should be answered. Neither can the award affect strangers (or those who are not parties to it) ; and, if one part of it is that a stranger shall do some act, it is not only of no force as to the stran- ger, but of no force as to the parties if this unauthorized part cf the award cannot be taken away without affecting the rest of the award. SUBMISSION AND AWAKD. 237 Nor can it require that one of the parties should make a payment, \IT do any similar act, to a stranger. But if the stranger is men- tioned in an award only as agent of one of the parties, which he actually is, or as trustee, or as in any way paying for, or receiving for, one of the parties, this does not invalidate the award. And in favor of awards, it has been said that this will be supposed, where the contrary is not indicated. If the award embrace matters not included in the submission, it is fatal. If, however, the portion of the award which exceeds the submission can be separated from the rest without affecting the merits of the award, it may be rejected, and the rest will stand ; otherwise the whole is void. If the submission specify the particu- lars to which it refers, or if, after general words, it make specific exceptions, its words must be strictly followed. If these words are very general, they will be construed liberally, but yet without extending them beyond their fair meaning. On the other hand, all questions submitted must be decided, unless the sub- mission provides otherwise ; and either party may object to an award, that it omits the decision of some question submitted ; but the objection is invalid if it be shown that the party objecting him- self withheld that question from the arbitrators. Nor is it necessary that the award embrace all the topics which might be considered within the terms of a general submission. It is enough if it pass upon those questions brought before the arbitrators, and they are so far distinct and independent that the omission of others leaves no uncertainty in the award. If the award does not embrace all of the matters within the submission which where brought to the notice of the arbitrators, it is altogether void. In the next place, an award must be certain ; that is, it must bo so expressed that no reasonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. For the very purpose of the submis- sion, and the end for which the law favors arbitration, is the final settlement of all questions and disputes; and this is inconsistent with uncertainty. In the next place, the award must be possible ; for an award re- quiring that to be done which cannot be done is senseless and ise- 238 ARBITRATION. less. But the impossibility which vitiates an award is one which belongs to the nature of the thing, and not to the accidental dis- ability of the party at the time. Thus, if he be ordered to pay money on a day that is past, this is void ; so if he be required to give up a deed which he neither has nor may expect to have ; but if he be directed to pay money, the award is good, although he has no money, for it creates a valid debt against him. Nor can a party avoid an award on the ground of an impossibility created by him- self, after the award, or indeed beforehand, if he created it for the purpose of evading an expected award. This impossibility may be actual, or it may be that created by law ; for an award which requires that a party should do what the law forbids him to do is void, either in the whole, or else for so much as is thus against the law, if that illegal part can be severed from the rest. An award must be reasonable ; if it be of things in themselves of no value or advantage to the parties, or out of all proportion to the justice and requirements of the case, or if it undertake to determine for the parties what they should determine for themselves, as that the parties should intermarry, it is void. * Lastly, the award must be final and conclusive. This necessity springs also from the very purpose for which the law favors arbitra- tion, namely, the settlement and closing of disputes. It is not a valid objection to an award, that it is upon a condition, if the condition be clear and certain, consistent with the rest of the award, in itself reasonable, and such that there could be no doubt whether it were performed or not, or what were the rights or obligations dependent upon it. An award may be open to any or all of these objections in part, without being necessarily void in the whole. So much of it as is thus faulty is void ; but if this can be severed distinctly from the residue, leaving a substantial, definite, and unobjectionable award behind, this may be done, and the award then will take effect. It is therefore void in the whole because bad in part, only where this part cannot be severed from the residue ; or where, if it be se\ ered and amended, leaving the residue in force, one of the parties will be held to an obligation imposed upon him, but deprived of the ad SUBMISSION AND AWAED. 239 vantage or recompense which it was intended that he should have. Generally, in the construction of awards, they are favored and enforced, wherever this can properly be done. If the submission be in the most general terms, and the award equally so, covering " all demands and questions " between the par- ties, either party may still show that a particular demand either did not exist, or was not known to exist, when the submission was entered into, or that it was not brought before the notice of the arbi- trators, or considered by them ; and then the award will not be permitted to affect this demand. If, by an award, money is to be paid in satisfaction of a debt, this implies an award of a release on the other side, and makes this release a condition to the payment. There is no especial form of an award necessary in this country. If the submission requires that it should be sealed, it must be so. And if the submission was made under a statute, or under a rule of court, the requirements of the statute or the rule should be followed. But even here mere formal inaccuracies would seldom be permitted to vitiate the reward. If the submission contains other directions or conditions, as that it should be delivered to the parties in writing, or to each of the parties, such directions must be substantially followed. Thus, in the latter case, it has been held that it is not enough that a copy be delivered to one of the parties on each side, but each individual party must have one. It may happen, where an award is offered in defence, or as the ground of an action, that it is open to no objection whatever for any thing which it contains or which it omits ; and yet it may be set aside for impropriety or irregularity in the conduct of the arbitrat- ors, or in the proceedings before them. Awards are thus set aside if ." procured by corruption or undue means." This rule rests, indeed, on the common principle, that fraud vitiates and avoids every transaction. So, too, it may well be set aside if it be apparent on its face that the arbitrator has made a material mistake of fact or of law. It must, however, be rather a strong case in which the court would receive evidence of a mere mistake, either in fact or in law, which 240 ARBITRATION. did not appear in the award, and was not supposed to spring from or indicate corruption. Another instance of irregularity is the omission to examine witnesses. ; or an examination of them when the parties were not present, and their absence was for good cause ; or a concealment by either of the parties of material circumstances ; for this would be fraud. So if the arbitrators, iu case of disagreement, were author- ized to choose an umpire, but drew lots which of them should choose him. But it has been held enough that each arbitrator named an umpire, and lots were drawn to decide which of these two should be taken, because it might be considered that both of these men were agreed upon. And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly, or impliedly by attending before him, with a full knowledge of the manner of the appointment, this covers the irreg- ularity. SECTION n. THE REVOCATION OF A SUBMISSION TO ARBITRATORS. IT is an ancient and well-established rule, that either party may revoke his submission at any time before the award is made ; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award. And, generally, this power exists until the award is made. In this country, our courts have always excepted from this rule submissions made by order or rule of court ; for a kind of jurisdic- tion is held to attach to the arbitrators, and the submission is quite irrevocable, except for such causes as make it necessarily inoperative. There is a strong reason why a submission by order of court, or before a magistrate, should be preferred where it can be had, from the fact above stated, that the law permits any party who finds an award is going against him to revoke his submission or reference when he will, before the award is made ; provided the award was only by agreement out of court, or not before a magistrate. In some of oui N REVOCATION OP A SUBMISSION TO ARBITRATION. 241 States, the statutes authorizing and regulating arbitration provide for the revocation of the submission. It should be stated, however, that, as an agreement to submit is a valid contract, the promise of each party being the consideration for the promise of the other, a revocation of the agreement or of the submission is a breach of the contract, and the other party has his damages. And damages would generally include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way. If either party exercise this power of revocation, he must give notice in some way, directly or indirectly, to the other party ; and until such notice, the revocation is inoperative. Bankruptcy or insolvency of either or both parties does not neces- sarily operate as a revocation, unless the terms of the agreement to refer, or the provisions of the insolvent law, required it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally, at least, no further power. The death of either party before the award is made vacates the submission, if made out of court, unless that provides in terms for the continuance and procedure of the arbitration, if such an event occur. But a submission under a rule of court is not revoked or annulled even by the death of a party. So the death or refusal or inability of an arbitrator to act would annul a submission out of court, unless provided for iii the agreement ; but not one under a rule of court, unless for especial reasons, satisfactory to the court, which would make an appointment of a substitute, if it saw fit to continue the reference. It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, have any further control over it. If the submission provides for any method of delivering the award, this should be followed. If not, it is common for the referees to deliver the award to the prevailing party or his attorney, on pay- ment by him of the fees of arbitration. Then the prevailing party looks to the losing party, for the whole, or a part, or none of the costs, as the award may determine. 242 ARBITRATION. The award should be sealed, aud addressed to all the parties ; and it should not be opened except in presence of all the parties, or of their attorneys, or with the consent of those absent indorsed on the award. If the submission is under a rule of court, it should be returned to court by the arbitrators, or the counsel receiving it, sealed, and opened only in court, or before the clerk, or with the written consent of parties. The submission, or agreement to refer, may be made by exchange of Bonds, each party executing and delivering a Bond to the other party. This would be a formal proceeding. But, as has been already said, no especial form is necessary ; and often a very simple one, like that below, would suffice. (86.) Simple Agreement to Refer. Know all Men, That we, of and of do hereby promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between us (or any specific question or claim, describing if) to the arbitrament and deter- mination of (here name the arbitrators) whose decision and award shall be final, binding, and conclusive on us ; (add if there are more arbitrators than one, and it is intended that they may choose an umpire) and, in case of disagreement between the said arbitrators, they may choose an umpire, whose award shall be final and con- elusive ; (or add, if there be more than two arbitrators) and, in case of disagree- ment, the decision and award of a majority of said arbitrators shall be final and conclusive. In "Witness Whereof, (Signatures.) (87.) Arbitration Bond. One or more Arbitrators. Know all Men by these Presents, That I, (one of the parties) am held and firmly bound unto (the other party) In the sum of dollars, lawful money of the United States of America, to be paid to the suid (the other party) executors, administrators, or assigns ; for whid payment, well and truly to be made, I hereby bind myself, my heirs, executors and administrators, firmly by these presto** FOKMS Uf AEBITKATION. 243 Sealed with my seal Dated the day of one thousand eight hundred and The Condition of the above Obligation is such, Ihat if the above bounden shall well and truly submit to the decision of (the referee) named, selected, and chosen arbitrator as well by and on the part and behalf of, the said as of the said between whom a controversy exists, to hear all the proofs and allegations of the parties of and concerning (here set forth the claims or questions referred) and all matters relating thereto, and that the award of the said arbitrator be made in writing, subscribed by him (or them) and attested by a subscribing witness, ready to be delivered to the said parties on or before the day of next. But before proceeding to take any testimony therein, the arbitrator shall be sworn, " faithfully and fairly to hear and examine the matters in controversy between the parties to these presents, and to make a just award according to the best of his (or their) understanding." And the said parties to these presents do hereby agree, that judgment in the case (in question) shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy hi that behalf, between them, shall be finally concluded. Then the above obligation to be void, otherwise to remain in full force and virtue. (Signature.) (Seal.) Sealed and Delivered in Presence of [To make the contract complete, the other party should execute and deliver a counterpart to this Bond.] (88.) Award of Arbitrators. To all to whom these Presents shall Come, We (names of the arbitrators) to whom was submitted as arbitrators the matters hi controversy exist- ing between as by the condition of their respective bonds of sub- mission, executed by the said parties respectively, each unto the other, and bearing date the day of one thousand eight hundred and more fully appears. Now, therefore, know ye, That we the arbitrators men- tioned in the said bonds having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters hi con- troversy by them submitted, do make this award in writing ; that is to say, the said (here follows the award) In Witness Whereof, have hereunto subscribed these presents, this day of one thousand eight hundred and (Signatures.) - In the Presence of 244 THE CABKIAGE OF GOODS AND PASSENGEKS. CHAPTER XX. THE CAJZRULGH OF GOCXD8 SECTION I. A PRIVATE CARRIER. ONE who carries goods for another is either a private carrier or a common carrier. A private carrier is one who carries for others once, or some- times, but who does not pursue the business of carrying as his usual and professed occupation. The contract between him and the owner of the goods which he carries is one of service, and is governed by the ordinary rules of law. Each party is bound to perform his share of the contract. Such a carrier must receive, care for, carry, and deliver the goods, in such wise as he bargains to do. If he carries the goods for hire, whether actually paid or due, he is bound to use ordinary diligence and care ; by which the law means such care as a man of ordinary capacity would take of his own property under similar circumstances. If any loss or injury occur to the goods while in his charge, from the want of such care or diligence on his part, he is responsible. But if the loss be chargeable as much to the fault of the owner as of the carrier, he is not liable. The owner must show the want of care or diligence on the part of the private carrier, to make him liable ; but slight evidence tending that way would suffice to throw upon him the burden of accounting satisfactorily for the loss. And if there is such negligence on the part of the carrier, or of a servant for whom he is responsible, the carrier is liable, although the loss be caused primarily by a defect in the thing carried. If he carries the goods without any compensation, paid or prom- ised, he is, in the language of the law, a gratuitous bailee, or man- datary : he is now bound only to slight care ; which is such care as THE COMMON CAERIEE. 245 every person, not insane or fatuous, would take of his own property. For the want of this care, which would be gross negligence, he is responsible, but not for ordinary negligence. We sum up what may be said of the private carrier in the remark, that the general rules which regulate contracts and mutual obligations apply to the duties and the rights of a private carrier, with little or no qualification. But it is otherwise with a common carrier. SECTION H. THE COMMON CARRIER. THE law in relation to the rights, the duties, and the responsibili- ties of a common carrier is quite peculiar. The reasons for it are discernible, but it rests mainly upon established usage and custom. And, as these usages have changed considerably in modern times, this law has undergone important modifications. He is a common carrier " who undertakes, for hire, to transport the goods of such as choose to employ him from some known and definite place or places to other known and definite place or places." He is one who undertakes the carriage of goods as a business; and it is mainly this which distinguishes him from the private carrier. Ttye rights and responsibilities of the common carrier may be briefly stated thus: He is bound to take the goods of all who offer, if he be a carrier of goods, and the persons of all who offer, if he be a carrier of passengers ; and to take due care and make due transport and delivery of them. He has a lien on the goods which he carries, and on the baggage of passengers, for his compen- sation. He is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss happens from the act of God, or from the public enemy. Those three rules will be considered in the next section. The important thing to be remembered is, that a private carrier is not liable for injury to persons, or loss of or injury to goods, with out fault or negligence on his part ; but a common carrier in liable, without any fault or negligence on his part. 246 THE CABRIAGE OF GOODS AND PASSENGERS. Truckmen or draymen, porters, and others who undertake the carriage of goods for all applicants from one city or town to another, or from one part of a city to another, are chargeable as common carriers. So, proprietors of stage-coaches are chargeable as com- mon carriers of passengers, and of the baggage of passengers ; or the baggage of others, if they so advertise themselves. So are hackney-coachmen within their accustomed range. If drivers of stages, or omnibuses, commonly carry and receive pay for goods or parcels which are not the baggage of passengers, and are held out or advertised, or generally known, as so carrying them, they are common carriers of goods, and the proprietors are liable for the loss of such parcels, although neither they nor the drivers were in fault. But if there is no such habit or usage, and the driver receives such a parcel to be carried somewhere, and is paid for it, the driver carries it as a private carrier, and not as a common carrier, and is chargeable only for negligence or fault. And if the line of carriages is established for passengers, and the driver does not account for what is paid him for occasional parcels, but takes it as his own perquisite, the proprietors are not answerable even for the driver's fault or negligence, unless circumstances in some way bring the fault home to them. In this country, in recent times, the business of carrying goods and passengers is almost monopolized by what are called- express- men, by railroads, or by lines of steam-packets along our coasts, or upon our navigable streams or lakes. All these are undoubtedly common carriers ; and although their peculiar method of carrying on this business is new, and will require from us especial consider- ation in another chapter, there can be no doubt of their being, to all intents and purposes, common carriers. Ordinary sailing-vessels are sometimes said to be common carriers. We should be disposed to restrict this term, however, to regular packets ; or, at most, to call by this name general freighting ships. It is not, however, necessary to consider this question, as water- borne goods are now almost always carried under bills of lading, which determine the relations and respective rights of the parties ; and these we shall consider in our chapter on the Law of Shipping. The boatmen on our rivers and canals are common carriers ; aad THE COMMON CAEEIEB. 2-V7 ferrymen are common carriers of passengers by their office, and may become common carriers of goods by taking up that business. A steamboat usually employed as a carrier may do something else, as tow a vessel out of a harbor, or the like ; and the character of com- mon carrier does not attach to this especial employment, and carry with it its severe liabilities. Therefore, for a loss occurring to a ship in her charge while so employed, the owner of the steamer is not liable without negligence on his part, or on the part of those whom he employs. The same person may be a common carrier, and also hold other offices or relations. He may be a warehouseman, a wharfinger, or a forwarding merchant. The peculiar liabilities of the common carrier do not attach to either of these offices or employments. Thus, a warehouseman is liable for loss of the goods which he takes for storage, only in case of his own negligence : he is not, as a corn- corn carrier is said to be, an insurer of the goods. The question, then arises, when the liability of such a person is that of a ware- houseman, and when it is that of a carrier. If a carrier receives goods to be stored until he can carry them, a canal-boatman, for example, or if, at the end of the journey, he stores them for a time for the safety of the goods or the con- venience of the owner, while thus stored he is liable only as ware- houseman. But if he puts them into his store or office only for a ehorjt time, and for his own convenience, either at the beginning or end of the transit (or journey), they are in his hands as carrier. "Where these relations seem to unite and mingle in one person, it may be said to be the general rule, that, wherever the deposit, in whatever place or building, is secondary and subordinate to the carriage of the goods, which is therefore the chief thing, the party taking the goods is a carrier ; and otherwise a depositary only of some kind. If, therefore, goods are delivered to a carrier, or at his depot or receiving-room, with directions not to carry them until further orders, he is only a depositary, and not a carrier, until those orders are received ; but when they are received, he becomes a carrier ; and if the goods are afterwards lost or injured before their removal, he is liable as a common carrier without negligence or fault on his part. 248 THE CARRIAGE OF GOODS AND PASSENGERS. SECTION in. THE OBLIGATION OF THE COMMON CARRIER TO RECEIVE AND CARRY GOODS OR PASSENGERS. HE cannot refuse to receive and carry goods offered, without good cause ; for, by his openly announcing himself in any way as engaged in this business, he makes an offer to the public which becomes a kind of contract as to any one who accepts it. He may demand his compensation, however ; and, if it be refused, he may refuse to carry the goods ; nor is he bound to carry them if security be offered to him, but not the money. But if the freight-money be not demanded, the owner of the goods, if he is able, ready, and willing to pay it, has all his rights although he does not make a formal tender of the money. A carrier may refuse if his means of carriage are already fully employed. But, in a case where a railway company, being common carriers, had issued excursion-tickets for a journey, it was held that they were not excused from carrying passengers according to their contract, upon the ground that there was no room for them in their conveyance ; and that, in order to avail themselves of this answer, they should make their contract conditional upon there being room. If the common carrier cannot carry the goods without danger to them, or to himself or other goods ; or without extraor- dinary inconvenience ; or if they are not such goods as it is his regular business to carry ; he is excused for not carrying them. He is always entitled to his usual charge ; but not to extraordinary compensation, unless for extraordinary service. The common carrier of goods is bound to receive them in a suitable way, and at suitable times and places. If he has an office or station, he must have proper persons there, and proper means of security. During the transit, and at all stopping-places, due care must be taken of all goods ; and that means the kind and measure of care appropriate for goods of that description. If he have notice, by writing on the article or otherwise, of the need of peculiar care, as, " Glass, with great care," or " This side uppermost," or " To be kept dry," he is bound to comply with such directions, suppos ing them not to impose unnecessary care or labor. OBLIGATION OF THE COMMON CARKIER. 249 If he carry passengers, he must receive all who offer, unless he has some special and sufficient reason for refusing. In a case tried before the Supreme Judicial Court of Massa- chusetts, it was held, that if an innkeeper, who has frequently entered a railroad depot and annoyed passengers by soliciting them to go to his inn, receives notice from the superintendent of the depot that he must do so no more, and he nevertheless repeatedly enters the depot for the same purpose, and afterwards obtains a ticket for a passage in the cars, with an actual intention of entering the cars as a passenger, and goes into the depot on his way to the cars, and the superintendent, believing that he has entered the depot to solicit passengers, orders him to go out, and he does not exhibit his ticket, nor give notice of his real intention, but presses forward towards the cars, and the superintendent and his assistants therefore forcibly remove him from the depot, using no more force than is necessary for that purpose, such removal is justifiable, and not an indictable assault and battery. A common carrier is bound to carry his passengers over the whole route, and at a proper speed, or supply proper means of transport ; to demand only a reasonable or usual compensation ; to notify his passengers of any peculiar dangers ; to treat all alike, unless there be actual and sufficient reason for the distinction, as in the filthy appearance, dangerous condition, or misconduct of a passenger ; and to behave to all with civility and decorum. He must also have proper carriages, and keep them in good con- dition, and not overload them ; and suitable horses and drivers ; stop at the usual places, with proper intervals for rest or food ; take the proper route ; and drive at proper speed ; and leave the passengers at the usual stopping-places, or wherever he agrees to. In none of these things can he depart from what is usual and proper at his own pleasure. And if by any breach of these duties a passenger is injured, the carrier is responsible. So if he puts his passengers in peril, and one of them be hurt by an effort to escape, as in jumping off, it is no defence for the carrier to show that he would have been safe if he had remained. In one case, it was held that a common carrier who had received a. pickpocket as a passenger on board his vessel, and taken his fare, 250 THE CARRIAGE OF GOODS AND PASSENGERS. could not put him on shore so long as he was not guilty of any im- propriety. But this may be doubted. The common carrier must certainly employ competent and well-behaved persons for all duties ; and for failure in any of the particulars of his duties and obligations, he is responsible not only to the extent of any damage caused there- by, but also, in many cases, for pain and injury to the feelings. He is also bound to deliver to each passenger all his baggage at the end of his journey ; and in held liable if he delivers it to a wrong party on a forged order, and without personal default. Lastly, he must make due delivery of the goods at the proper time, in the proper way, and at the proper place, and to the proper person ; and this person should be some one who was author- ized by the owner or sender to receive the goods. If a party authorized to receive the goods refuse, or is unable, to do so, the carrier must keep them for the owner, and with due care ; but now under the liability of a warehouseman, and not of a carrier : that is, he is now liable only for fault of some kind. So the carrier must keep the goods for the owner, if he has good reason to believe that the consignee is dishonest, and will defraud the owner of his property. As to the time when goods should bo delivered, it must be within the proper hours for business, when they can be suitably stored ; or if the goods are delivered to the sender himself, or at his house, then at some suitable and convenient hour. There must be no unnecessary delay, and the goods must be delivered as soon after a detention as may be with due diligence. As to the way and the place at which the goods should be de- livered, much must depend upon the nature of the goods, and much also upon the usage in regard to them, if such usage exists. The goods should be so left, and with svich notice, as to secure the early, convenient, and safe reception of them by the person en- titled to have them. Something also must depend, on this point, on the mode of conveyance. A man may carry a parcel into the house, and deliver it to the owner or his servant ; a wagon or cart can go to the gate, or into the yard, and there deliver what it car- ries. A vessel can go to one wharf or another ; and is bound to go to that which is reasonably convenient to the consignee, or to one that was agreed upon ; but a vessel is not always bound to comply OBLIGATION OF THE COMMON CAEEIEE. 251 with requirements of the consignee as to the very wharf the goods should be left at, but may leave the goods at any safe, convenient, and accessible wharf at which such goods are usually left. Where the goods are not delivered to the owner personally, or to his agent, immediate notice should be given to the owner. The carrier is generally obliged to give notice of the delivery of goods, and if the owner has in any way designated how the goods may be delivered to himself, he is bound to obey this direction. The notice must be prompt and distinct. And if the goods are delivered at an unsuitable or unauthorized place, no notice will make this a good delivery. Railroads terminate at their station, and although goods might be sent by wagons to the house or store of consignees, this is not usu- ally done, as it is considered that the railroad carrier has finished his transit at his own terminus. Usually, the consignee of goods sent by railroad has notice from the consignor when to expect them ; and this is so common, that it is seldom necessary, in fact, for the agents of the railroad to give notice to the consignee. But this should be given where it is necessary ; and should be given as promptly, directly, and specifically as may be necessary for the pur- pose of the notice. A railroad company may be compared to owners of ships in this respect, that neither can take the cars or the ships farther than the station or the wharf, and therefore may deliver the goods there. But a carrier by water is bound to give notice that the goods are on the wharf, and is not exonerated as carrier until he gives such notice; whereas, a railroad company is not bound to give notice. It may happen that some third party may claim the goods under a title adverse to that of the consignor or consignee. If the carrier refuse to deliver them to this third party, and it turns out that the claimant had a legal right to demand them, the carrier would be liable in damages to him. But the carrier may and should demand full and clear evidence of the claimant's title ; and if the evidence be not satisfactory, he may demand security and indemnity. If the evidence or the indemnity be withheld, he certainly should not be held answerable for any thing beyond that amount which the goods themselves would satisfy, for he is in no fault. If he delivers the 18 252 THE CARRIAGE OF GOODS AND PASSENGERS. goods to such claimant, proof that the claimant had good title is an adequate defence against any suit by the consignor or consignee for non-delivery. SECTION IV. THE LIEN OP THE COMMON CARRIER. THE legal meaning of this word, as we have said before, when we have had occasion to use the word in preceding chapters, is the right of holding or detaining property until some charge against it, or some claim upon the owner on account of it, is satisfied. The common carrier has this right against all the goods he carries, for his compensation. While he holds them for this purpose, he is not liable for loss or injury to them as a common carrier ; that is, not unless the injury happen from his own fault. He may not only hold the goods for his compensation, but may recover this out of them, by any of the usual means in which a lien upon personal chattels is made productive. That is, he holds them just as if they were pledged to him by the owner as a security for the debt. Therefore, if the debt be not paid in a reasonable time after it is due and demanded, the carrier may have a decree of a court of equity for their sale ; or may sell them himself at auction, retaining his pay from the proceeds, and paying over the remainder. But to make this course justifiable and safe, the carrier must wait a reasonable time, and give full notice of his intention, so that the owner may have a convenient opportunity to redeem the goods ; and there must be proper advertisement of the sale, and every usual pre- caution taken to insure a favorable sale ; and the carrier must not himself buy the goods, and must act in all respects with entire honesty. SECTION V. THE LIABILITY OF THE COMMON CARRIER, THIS is perfectly well established as a rule of law, although it is very exceptional and peculiar. It is sometimes said to arise from LIABILITY OF THE COMMON CAREIEE. 253 the public carrier being a kind of public officer. But the true reason is the confidence which is necessarily reposed in him, the power he has over the goods intrusted to him, the ease with which he may defraud the owner of .them, and yet make it appear that he was not in fault, and the difficulty which the owner might have in making out proof of his default. This reason it is important to re- member, because it helps us to construe and apply the rules of law on this subject. Thus, the rule is that the common carrier is liable for any loss or injury to goods under his charge, unless it be caused by the act of God, or by the public enemy. The rule is intended to hold .the common carrier responsible wherever it was possible that he caused the loss, either by negligence or design. Hence, the act of God means some act in which neither the carrier himself, nor any other man, had any direct and immediate agency. If, for example, a house in which the goods are at night is struck by lightning, or blown over by a tempest, or washed away by inunda- tion, the carrier is not liable. This is an act of God, although man's agency interferes in causing the loss ; for without that agency, the goods would not have been there. But no man could have directly caused the loss. On the other hand, if the building was set on fire by an incendiary at midnight, and the rapid spread of the flames made it absolutely impossible to rescue the goods, this might be an inevitable accident if the carrier were wholly innocent, but it would also be possible that the incendiary was in collusion with the carrier for the purpose of concealing his theft ; and therefore the carrier would be liable for such a loss, however innocent. As a general rule, the common carrier is always liable for loss by fire, unless it be caused by lightning, an accidental fire not being considered an act of God, or a peril of the sea ; and this rule has been applied to steamboats and other vessels. So, it may be true that after the lightning, the tempest, or inundation, the carrier was negligent, and so lost the goods which might have been saved by proper efforts, or that he took the opportunity to steal them. If this could be shown, the carrier would, of course, be liable ; but the law will not suppose this without proof, if the first and main cause were such that the carrier could not have been guilty in respect to it. So, a common carrier would be liable for a loss caused by a 254 THE CARRIAGE OF GOODS AND PASSENGERS. robbery, however sudden, unexpected, and irresistible, or by a theft, however wise and full his precautions, and however subtle and ingenious the theft, although either of these might seem to be un- avoidable by any means of safety which it would be at all reasonable to require. The general principles of agency extend to common carriers, and make them liable for the acts of their agents, done while in the dis- charge of the agency or employment. So, the knowledge of his agent is the knowledge of the carrier, if the agent be authorized expressly, or by the nature of his employment, to receive this notice or knowledge. But an agent for a common carrier may act for himself, as a stage-coachman in carrying parcels, for which he is paid personally and does not account with his employer, and then the employer, as we have said, is not liable, unless the owner of the goods believed the stage-coachman carried the goods for his employer, and was justified by the facts and apparent circumstances in so believing. A carrier may be liable beyond his own route. It is very common for carriers, who share between them the parts of a long route, to unite in the business and the profits, and then all are liable for a loss on any 'part of the route. If they are not so united in fact, but say they are so, or say what indicates that they are so, they justify a sender in supposing they are united, and then they are equally liable. If a carrier takes goods to carry only as far as he goes, and then engages to send them forward by another carrier, he is liable as carrier to the end of his own route ; he is liable also if he neglects to send the goods on ; but he is not liable for what may happen to them afterwards. SECTION VI THE CARRIER OF PASSENGERS. THE carriers of passengers are under a more limited liability than the carriers of goods. This is now well settled. The reason is, that they have not the same control over passengers as over goods ; can- NOTICE BY THE CARRIER RESPECTING HIS LIABILITY. 255 not fasten them down, and use other means of securing them. But while the liability of the carrier of passengers is thus mitigated, it is still stringent and extreme. No proof of care will excuse the carrier if he loses goods committed to him. But proof of the utmost care will excuse him for injury done to passengers ; for the carrier of passengers is liable for injury to them, unless he can show that he took all possible care, giving always a reasonable construction to this phrase ; and in the case of railroad companies there is authority for using the words in almost their literal meaning ; that is, for holding them liable for all injury to passengers which could have been possibly avoided. SECTION VII. A NOTICE BY THE CARRIER, RESPECTING HIS LIABILITY. THE common carrier has a right to make a special agreement with the senders of goods, which shall materially modify, or even wholly prevent, his liability for accidental loss or injury to the goods. The question is, What constitutes such a bargain ? A mere notice that the carrier is not responsible, or his refusal to be responsible, although brought home to the knowledge of the other party, does not necessarily constitute an agreement. The reason is this. The sender has a right to insist upon sending his goods, and the pas- senger has a right to insist upon going himself with customary baggage, leaving the carrier to his legal responsibility ; and the carrier is bound to take them on these terms. If, therefore, the sender or the passenger, after receiving such notice, only sends or goes in silence, and without expressing any assent, especially if the notice be given at such time, or under such circumstances, as would make it inconvenient for the sender not to send, or for the passenger not to go, then the law will not presume from his sending or going an assent to the carrier's terms. But the assent may be expressed by. words, or made manifest by nets ; and it is in each case a question of evidence for the jury, whether there was such an agreement. 256 THE CARRIAGE OF GOODS AND PASSENGERS. But a notice by the carrier, which only limits^and defines his lia- bility to a reasonable extent, without taking it away, as one which states what kind of goods he will carry, and what he will not ; or to what amount only he will be liable for passengers' baggage, without special notice ; or what information he will require, if certain arti- cles, as jewels or gold, are carried ; or what increased rates must be paid for such things, any notice of this kind, if in itself reasona- ble and just, will bind the party receiving it. No party will be affected by any notice, neither the carrier, nor a sender of goods, nor a passenger, unless a knowledge of it can be brought home to him. In a case in Pennsylvania, where the notice was in the English language, and the passenger was a Ger- man, who did not understand English, it was held that the carrier must prove that the passenger had actual knowledge of the limita- tion in the notice. But the knowledge may be brought home to him by indirect evidence. As by showing that it was stated on a receipt given to him, or on a ticket sold him, or in a newspaper which he read, or even that it was a matter of usage, and generally known. This question is one of fact, which the jury will determine upon all the evidence, under the direction of the court. And if the notice is ambiguous, they will be directed to give it the meaning which is against the carrier, because it was his business to make it plain and certain. Any fraud towards the carrier, as a fraudulent disregard of a no- tice, or an effort to cast on him a responsibility he is not obliged to assume, or to make his liability seem to be greater than it really is, will extinguish the liability of the carrier so far as it is affected by such a fraud. If a carrier gives notice which he is authorized to give, the party receiving it is bound by it, and the carrier is under no obligation to make a special inquiry or investigation to see that the notice is com- plied with, but may assume that this is done. It should, however, be remarked that such notice affects the lia- bility of the common carrier only so far as it is peculiar to him ; that is, his liability for a loss which occurs without his agency or fault ; for he is just as liable as he would be without any notice, for a loss or injury caused by his own negligence or default. CARRIER'S LIABILITY FOR GOODS OF PASSENGERS. 257 Perhaps a common carrier might make a valid bargain which would protect him against every thing but his own wilful or fraudu- lent misconduct. But no bargain could be made to protect him against this. SECTION vni. THE CABBIEB'S IXA.BELITY FOB GOODS CABBIED BY PASSENGEBS. A CAERIER of goods knows what goods, or rather what parcels and packages, he receives and is responsible for. A carrier of pas- sengers is responsible for the goods they carry with them as bag- gage ; what that is, the carrier does not always know ; and he is responsible only to the extent of what might be fairly and naturally carried as baggage. This must always be a question of fact, to be settled as such by the jury, upon all the evidence, and under the direction of the court. But there can be no precise and definite standard. A traveller on a long journey needs more money and more baggage than on a short one ; one going to some places and for some purposes needs more than one going to other places or for other purposes. Thus in New York it was decided that baggage does not properly include money in a trunk, or any articles usually carried about thp person. And in another New York case, it was held that, where the baggage of a passenger consists of an ordinary travelling-trunk, in which there is a large sum of money, such money is not consid- ered as included under the term baggage, so as to render the carrier responsible for it. But generally a passenger may carry as baggage, money not exceeding an amount ordinarily carried for travelling- expenses. So in Massachusetts it was held that common carriers are responsible for money bond fide included in the baggage of a pas- senger, for travelling-expenses and personal use, to an amount not exceeding what a prudent person would deem proper and neces- sary for the purpose. In Pennsylvania, carriers have been held responsible for ladies' trunks containing apparel and jewels. And in Illinois, a com- mon carrier of passengers has been held liable for the loss of a 258 THE CABKIAGE OF GOODS AND PASSENGERS. pocket-pistol, and a pair of duelling-pistols, contained in the car- pet-bag of a passenger, which was stolen out of the possession of the carrier. But in Tennessee, it has been held that " a silver watch, worth about thirty-five dollars, also medicines, handcuffs, locks, &c., worth about twenty dollars," were not included in the term bag- gage, and that the carrier was not responsible for their loss. In Ohio, it has been held that a gold watch, of the value of ninety-five dol- lars, was a part of the traveller's baggage, and his trunk a proper place to carry it in. In another New- York case, it has been held that the owners of steamboats were liable as common carriers for the bag- gage of passengers ; but, to subject them to damages for loss thereof, it must be strictly baggage ; that is, such articles of necessity and personal convenience as are usually carried by travellers. And it was accordingly held, in that case, that the carrier was not liable for the "loss of a trunk containing valuable merchandise and nothing else, although it did not appear that the plaintiff had any other trunk with him. But in a case in Pennsylvania, where the plaintiff was a carpenter moving to the State of Ohio, and his trunk contained carpenters' tools to the value of fifty-five dollars, which the jury . found to be the reasonable tools of a carpenter, it was held that he was entitled to recover for them as baggage. There is some diversity, and perhaps some uncertainty, in the Application of the rule ; but the rule itself is well settled, and a rea- sonable construction and application of it must always be made ; and, for this purpose, the passenger himself, and all the circum- stances of the case, must be considered. The purpose of the rule is to prevent the carrier from becoming liable by the fraud of the passenger, or by conduct which would have the effect of fraud ; for this would be the case if a passenger should carry merchandise by way of baggage, and thus make the carrier of passengers a carrier of goods without knowing it and with- out being paid for it. Generally, a common carrier of passengers, by stage, packet, steamer, or cars, carries the moderate and reasonable baggage of a passenger, without being paid specifically for it. But the law considers a payment for this so far included in the payment of the fare, as to form a sufficient ground for the carrier's liability to the extent above stated. CAKKIEK'S LIABILITY FOE GOODS OF PASSENGERS. 259 The carrier is only liable for the goods or baggage delivered to him and placed under his care. Hendb, if a sender of goods send his own servant with them, and intrust them to him and not to the carrier, the carrier is not responsible. So, if a passenger keeps his baggage, or any part of it, on his person, or in his own hands, or within his own sight and immediate control, instead of delivering it to the carrier or his servants, the carrier is not liable, as carrier, for any loss or injury which may happen to it; that is, not without actual default in the matter. Thus, in an action brought in New York to charge a railroad company, as common carriers, for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen ; and it was held that the defendants were not liable. But if the baggage of a passenger is delivered to a common carrier, or his servant, he is liable for it in the same way, and to the same extent, as he is for goods which he carries. In this country the rules of evidence permit the traveller to main- tain his action against the carrier by proving, by his own testimony, the contents of a lost trunk or box, and their value. And the tes- timony of the wife of the owner is similarly admissible. But it is always limited to such things in quantity, quality, kind, and value as. might reasonably be supposed to be carried in such a trunk or valise. The rule, with this limitation, seems reasonable and safe, and is quite generally adopted. In Massachusetts it was distinctly denied by the Supreme Court, but was afterwards estab- lished by statute. The common carrier of goods or of passengers is liable to third parties for any injury done to them by the negligence or default of the carrier, or of his servants. And it would seem that he is liable even for the wilful wrong-doing of his servants, if it was committed while in his employ, and in the management of the conveyance under his control, although the wrong was done in direct opposition to his express commands. So he is for injury to property by the wayside, caused by his fault. But the negligence of the party suffering the injury, if it was material and contributed to the injury, is a good 260 THE CAKKIAGE OF GOODS AND PASSENGERS. defence for the carrier ; unless malice on the carrier's part can be shown. Where the party injured is in fault, the common carrier has still been held liable, if that fault was made possible and injurious through the fault of the carrier. If passengers are carried gratui- tously, that is, without pay, the common carrier is still liable for injury caused by his negligence. Whether a railroad company is responsible for fire set to build- ings or property along the road, without negligence on its part, has been much considered in this country. In some of our States they are made so liable by statute provision. And this fact, together wiih the general principles of liability for injury done, would seem to lead to the conclusion that they are not liable, unless in fault, or unless made so by statute. (89.) Steam Packet Company. Marks and Numbers. Received from the following articles, being marked and numbered as in the margin, in apparent good order,- the contents and value unknown, to be transported from to on one of the company's steamers, and to be delivered on their wharf in , in like good order and condition, the dangers of the sea, of fire on board or on wharf, collision, and all other accidents excepted. DATED AT 86 ) 186 ) For the company. The following form will show the terms and conditions on which our express-companies carry their freight. This paper, given and received, constitutes a contract. FORMS OF COMMON CARRIER'S RECEIPTS. 261 Duplicate. (90.) Express Company. Fast Freight Line. 18 Received from the following packages, in apparent good order, contents and value unknown : EXPRESS COMPANY. Advanced Charges, $ BATES. D*ble 1st Class cts. per 100 Ibs. 1st Class cents per 100 Ibs. 2d Class cents per 100 Ibs. 3d Class cents per 100 Ibs. 4th Class cents per 100 Ibs. AS PER CLASSIFICATION ON BACK, Marked and numbered as in the margin, to be forwarded by railroad and delivered at upon payment of freight therefor, as noted in the margin, subject to the condi- tions and rules on the back hereof and those of the several railroads over which the prop- erty is transported, which constitute a part of this contract. Agent. On the back of this receipt is a minute and very full classification of all articles likely to be offered for transportation, followed by the Conditions and Hales. The destination, name of the consignee, and weight of all articles of freight, must be plainly and distinctly marked, or no responsibility will be taken for their miscarriage or loss ; and when designed to be forwarded, after transportation on the route, a written order must be given, with the particular line of conveyance marked on the goods, if any such be preferred or desired. The companies will not hold themselves liable for the safe carriage or custody of any articles of freight, unless receipted for by an authorized agent ; and no agent of the line is authorized to receive, or agree to transport, any freight, which is not thus receipted for. No responsibility will be admitted,, under any circumstances, to a greater 262 THE CARRIAGE OF GOODS AND PASSENGERS. amount upon any single article of freight than $200. unless upon notice given of such amount, and a special agreement therefor. Specie, drafts, bank-bills, and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the super- intendent of the receiving road. The companies will not hold themselves liable at all for injuries to any articles of freight during the course of transportation, arising from the weather, or acci- dental delays, or natural tendency to decay. Nor will their guaranty of special despatch cover cases of unavoidable or extraordinary casualties or storms, or delays occasioned by low water and ice ; and may be stored at the risk and expense of the owner. Nor will they hold themselves liable, as COMMON CARRIERS, for such articles, after their arrival at their place of destination at the company's warehouses or depots. Carriages and sleighs, eggs, furniture, looking-glasses, glass and crockery ware, machinery, mineral acids, piano-fortes, stoves and castings, sweet-potatoes, wrought marble, all liquids put up hi glass or earthen ware, fruit, and live animals, will only be taken at the owner's risk of fracture or injury during the course of transporta- tion, loading and unloading, unless specially agreed to the contrary. Gunpowder, friction matches, and like combustibles, will not be received on any terms ; and all persons procuring the reception of such freight by fraud or conceal- ment, will be held responsible for any damage which may arise from it while La tLe custody of the company. It is further stipulated and agreed, that goods shipped to points west of shall be subject to a change hi classification and corresponding change of rates beyond those points. Cases or packages of boots and shoes, and of other articles liable to peculation or fraudulent abstraction, must be strapped with iron or wood, or otherwise securely protected, or the companies will not be liable for diminution of the original con- tents, and the companies will hold the freighter, in all cases, to bear the loss arising from improper packing. It is also agreed between the parties that the said companies, and the railroads and steamboats with which they connect, shall not be held accountable for any deficiency hi packages if receipted for to them in good order. All articles of freight arriving at their places of destination must be taken away within twenty-fours hours after being unladen from the cars, each company reserving the right of charging storage on the same, or placing the same hi store at the risk and expense of the owner, if they see fit, after lapse of that tune. THE STATUTE OF LIMITATIONS. 263 CHAPTER XXI. SECTION I. THE STATUTE OF LIMITATIONS. ALL of our States have what is called a Statute of Limitations. It is not exactly the same everywhere ; but generally it enacts that all actions of account, and all which can be brought for indebtedness or damages, and all actions of debt grounded upon any lending, or contract without seal, and all actions for arrearages of rent, shall be commenced and sued within six years next after the cause of such actions or suit arises, and not after. In few words, all claims which do not rest on a seal or a judgment must bo sued within six years from the time when they arise. In some States, a statute provides, in substance, that, if a debt or promise be once barred by the Statute of Limitations, no acknowl- edgment of the debt or new promise shall renew the debt, and take away the effect of the statute, unless the new promise is in writing, and^is signed by the party who makes the promise. But this statute expressly permits a part-payment either of principal or inter- est of the old debt to have the same effect as a new promise. And this statute also provides, that if there be joint contractors or debtors, and a plaintiff is barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaitftiff may have judgment against this one, but not against the other. Such statutes have been passed in Maine, Massachusetts, Ver- mont, New York, Indiana, Michigan, Arkansas, and California. 264 LIMITATIONS. SECTION II. CONSTRUCTION OP THE STATUTE. FOB the law of limitation there is a twofold foundation : in the first place, the actual probability that a debt which has not been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But, besides this reason, there is the inex- pediency and injustice of permitting a stale and neglected claim or debt, even if it has not been paid, to be set up and enforced after a long silence and acquiescence. Before inquiring into the rules of law which now apply to the case of an acknowledgment or new promise, it should be remarked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in full force. This is the presumption of payment after twenty years, which is applicable to all debts ; not only the simple contracts to which the Statutes of Limitation refer, that is, contracts which are merely oral, or which if written have no seal, but to specialties, or contracts or debts under seal or by judgment of court. Of these it will not be necessary to Bpeak here, excepting to remark, that in a few of our States the Statute of Limitation excepts a promissory note which is signed in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator ; such a note in those States, as in Maine and Massachusetts, may be sued any time within twenty years after it is due. Bank-bills and other evidences of debt issued by banks, are everywhere excepted from the operation of the statute. SECTION HI. THE NEW PROMISE. WHAT is the new promise which suffices to take a case out of the statute ? A mere acknowledgment, which does not contain, by any reasonable implication or construction, a new promise, is not suffi- cient, and still less so if it expressly excludes a new promise. In PAKT-PAYMENT. 265 the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the Statute of Limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff, " I know we are owing you ; " " I am getting old, and I wish to have the business settled : " it was held that these expressions were insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defendant, on being asked to pay the note, said " he guessed the note was outlawed, but that would make no difference, he was will- ing to pay his honest debts, always." As he did not state in direct terms that he was willing to pay the note, this was held not sufficient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment. The new promise need not define the amount of the debt. That can be done by other evidence, if only the existence of the debt and the purpose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it ; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts generally, does not thereby make a new promise as to any one of them. If the new promise is conditional, the party relying upon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay " when I am able," the promisee must prove not only the promise, but that the promisor is able to pay the debt. As the acknowledgment should be voluntary, it follows that one made under process of law, as by a bankrupt, or by answers to inter- rogatories which could not be avoided, should never have the effect of a new promise. SECTION IV. PART-PAYMENT. A PART-PAYMENT of a debt is such a recognition of it as implies a new promise ; even if it was made in goods or chattels, if they were offered as payment, and agreed to be received as payment, or by 266 LIMITATIONS. negotiable promissory note or bill. Thus, in a case where one was sued for money due for a quantity of hay, and pleaded that it had been due more than six years, which was a good defence, the plain- tiff proved in reply that defendant had given him within six years a gallon of gin as part-payment for his debt ; and it was held that this took the case out of the Statute of Limitations, and the plaintiff re- covered. But a payment has this effect only when the payment is made as of a part of a debt. If it is made in settlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character, would not be con- strued as carrying with it an acknowledgment that more was due and would be paid. If a debtor owes several debts, and pays a sum of money, he has the right of appropriating that money to one debt or another as he pleases. If he pays it without indicating his own appropriation, the general rule is, that the creditor who receives the money may ap- propriate it as he will. There is, however, this exception. If there be two or more debts, some of which are barred by the statute, and others are not barred by it, the creditor cannot appropriate the pay- ment to a debt that is barred, for the purpose of taking it out of the statute by such part-payment. SECTION V. SOME STATUTORY EXCEPTIONS. THE original English statute, which ours is taken from, also pro- vides, that if a creditor, at the time when the cause of action accrues, is a minor, or a married woman, or not of sound mind, or imprisoned, or beyond the seas, the six years do not begin to run ; and he may bring his action at any time within six years after such disability ceases to exist. And also, if any person against whom there shall be a cause of action, shall, when such cause accrues be beyond the seas (which means out of the country, and here, out of the State), the action may be brought at any time within six years after his return. Similar exceptions and disabilities are usually contained in our own statutes. WHEN THE PEEIOD OF LIMITATION BEGINS. 267 The effect of these is, that the disability must exist when the debt accrued ; and then, so long as the disability continues to exist, the statute does not take effect. But it is a general rule, that, if the six years begin to run, they go on without any interruption or sus- pension from any subsequent disability. Thus, if a creditor be of sound mind, or a debtor be at home, when the debt accrues, and one month afterwards the creditor becomes insane, or the debtor leaves the country, nevertheless the six years go on, and after the end of that time no action can be commenced for the debt. Or if the disability exists when the debt accrues, and some months after- wards ceases, so that the six years begin to run when it ceases, and afterwards the disability comes again, it does not interrupt the six years. If, when a debt is due, the debtor is out of the State, the six years do not begin to run. If afterwards he returns to the State, they then begin to run; and, having begun, they continue to run, although he goes out of the State again, and returns no more. In this country, a rational construction has been given to the disability of being out of the State, and its removal ; and it is not understood to be terminated merely by a return of the debtor for a few days, if during those days he was not within reach. If, how- ever, the creditor knew that he had returned, or might have known it by the exercise of reasonable care and diligence, soon enough to have profited by it, this removal of the disability brings the statute into operation, although the return was for a short time only. SECTION VL W1LEN THE PERIOD OF LIMITATION BEGIXS. IT is sometimes a question from what point of time the six years are to be counted. And the general rule is, that they begin when the action might have been commenced. If a credit is given, this period does not begin until the credit has expired. If a note on time be given, the six years do not begin until the time has expired, including the additional three days of grace ; if a bill of exchange 19 268 LIMITATIONS. be given, payable at sight, then the six years begin after present- ment and demand ; but if a note be payable on demand, or money is payable on demand, then the limitation begins at once, because there may be an action at once. If there can be no action until a previous demand, the limitation begins as soon as the demand is made. If money be payable on the happening of any event, then the limitation begins after that event has happened. If several successive credits are given, as if a note is given which is to be renewed ; or if a credit is given, and then a note is to be given ; or if the credit is longer or shorter, at the purchaser's option, as if it be agreed that a note shall be given at two or four months, then the six years begin when the whole credit or the longer credit has expired. SECTION VII. THE STATUTE DOES NOT AFFECT COU-ATERAt SECURITY. IT is important to remember that the Statute of Limitations does not avoid or cancel the debt, but only provides that " no action shall be maintained upon it " after a given time. Therefore, it does not follow that no right can be sustained by the debt, although the debt cannot be sued. Thus, if one who holds a common note of hand, on which there is a mortgage or pledge of real or of personal property, without valid excuse neglects to sue the note for more than six years, he can never bring an action upon that note ; but the pledge or mortgage is as valid and effectual as it was before ; and, as far as it goes, his debt is secure ; and for the purpose of realizing this security, by foreclosing a mortgage, for example, he may have whatever process is necessary, although he cannot sue the note itself. And the debtor cannot redeem the property pledged or mortgaged except by payment of the debt. WHAT INTEREST IS, AND WHEN IT IS DUE. 269 CHAPTER XXH. USURY. SECTION I. WHAT INTEBEST IS, AND WHEN IT IS DUE. INTEREST means a payment of money for the use of money. In most civilized countries the law regulates this ; that is, it declares how much money may be paid or received for the use of money ; and this is called legal interest ; and if more is paid or agreed to be paid than is thus allowed, it is called usurious interest. By interest is commonly meant legal interest ; and by usury, usurious interest. Interest may be due, and may be demanded by a creditor, on either of two grounds. One, a bargain to that effect ; the other, by way of damages for withholding money that is due. Indeed, it may be considered as now the settled rule, that wherever money is with- held which is certainly due, the debtor is to be regarded as having promised legal interest for the delay. And upon this implication, as on most others, the usage of trade, and the customary course of dealings between the parties, would have great influence. Thus, in New York, it was held, that, where it was known to one party that it was the uniform custom of the other to charge interest upon articles sold or manufactured by him after a certain time, the latter was allowed to charge interest accordingly. In general, we may say that interest is allowed by law as follows . on a debt due by judgment of court, it is allowed from the rendition of judgment; and on an account that has been liquidated, or settled, from the day of the ; liquidation ; for goods sold, from the time of the sale, if there be no credit, and if there be, then from the day when the credit expires ; for rent, from the time that it is due, and this even if the rent is payable otherwise than in money, but is not so paid ; for money paid for another or lent to another, from the payment or loan. 270 INTEREST AND USURY. Interest is not generally recoverable upon claims for unliquidated damages, nor in actions founded on tort. By unliquidated damages is meant damages not agreed on, and of an uncertain amount, and which the jury must determine. By torts is meant wrongs, or injuries inflicted. But although interest cannot be given under that name, in actions of this sort, juries are sometimes at liberty to consider it in estimating the damages. It sometimes happens that money is due, but not now payable ; and then the interest does not begin until the money is payable. As if a note be on demand, the money is always due, but it is not payable until demand ; and therefore is not on interest until demand. But a note payable at a certain time, or after a certain period, carries interest from that time, whether it be demanded or not. The laws which regulate interest and prohibit usury are very various, and are not perhaps precisely the same in any two of our States. Formerly, usury was looked upon as so great an offence, that the whole debt was forfeited thereby. The law now, however, is generally, at least much more lenient. The theory that money is like any merchandise, worth what it will bring and no more, and that its value should be left to fix itself in a free market, is certainly gaining ground. In many States there are frequent efforts so to change the statutes of usury that parties may make any bargain for the use of money which suits them ; but when they make no bargain, the law shall say what is legal interest. And, gonerally, the forfeiture is now much less than the whole debt. At the close of this chapter will be found a statement of the usury laws of the States. There is no especial form or expression necessary to make a bargain usurious. It is enough for this purpose if there be a suo- stantial payment, or promise of payment, of more than the law allows, either for the use of money lent, or for the forbearance of money due and payable. One thing, however, is certain : there must be a usurious intention, or there is no usury. That is, if one miscalculates, and so receives a promise for more than legal interest, the error may be corrected, the excess waived, and the whole legal interest claimed. But if one makes a bargain for more than legal WHAT INTEREST IS, AND WHEN IT IS DUE. 271 interest, believing that he has a right to make such a bargain, or that the law gives him all that he claims, this is a mistake of law, and does not save the party from the effect of usury. It may be well to remark, that the law makes a very wide dis- tinction between & mistake of fact and a mistake of law. Generally, it will not permit a party to be hurt by a mistake of fact ; but it seldom suffers any one to excuse himself by a mistake of law, because it holds that everybody should know the law, and because it would be dangerous to permit ignorance of the law to operate for any one's benefit. The question has been much discussed, whether the use of the common tables which are calculated on the supposition that a year consists of 360 days, is usurious. In New York, it has been held that it is ; but in Massachusetts, and some other States, it is held that the use of such tables does not render the transaction usurious. We think this latter the better opinion. If a debtor requests time, and promises to pay for the forbearance legal interest, and as much more as the creditor shall be obliged to pay for the same money, this is not a usurious contract. And, even if usurious interest be actually taken, this, although strong evidence of an original usurious bargain and intent, is not conclusive, but may be rebutted by adequate proof or explanation. * When a statute provides that a usurious contract is wholly void, such a contract cannot become good afterwards ; and therefore a note which is usurious, if it be therefore void by law in its inception, is not valid in the hands of an innocent indorsee. But it is other- wise where the statute does not declare the contract void on account of the usury. If a note, or any securities for a usurious bargain, be delivered up by the creditor and cancelled, and the debtor there- upon promises to pay the original debt and lawful interest, this promise is valid. New securities for old ones which are tainted with usury are equally void with the old ones, or subject to the same defence. Not go, however, if the usurious part of the original securities be ex- punged, and not included in the new ; or if the new ones are given to third parties, who were wholly innocent of the original usurious transaction. And if a debtor suffers his usurious debt to be sued, 272 LNTEEEST AND USURY. and a judgment recovered against him for the whole amount, it ia then too late for him to take any advantage of the usury. So, if land or goods be mortgaged to secure a usurious debt, and afterwards conveyed to an innocent party, subject to such mortgage, the latter cannot set up the defence of usury, and thereby defeat an action tc enforce the mortgage. Usurers resort to many devices to conceal their usury ; and some- times it is very difficult for the law to reach and punish this offence. A common method is for the lender of. money to sell some chattel, or a parcel of goods, at a high price, the borrower paying this price in part as a premium for the loan. In England, it would seem from the reports to be quite common for one who discounts a note to do this nominally at legal rates, but to furnish a part of the amount in goods at a very high valuation. In all cases of this kind, or rather in all cases where questions of this kind arise, the court endeavors to ascertain the real character of the transaction. Such a transac- tion is always suspicious, for the obvious reason that one who wants to borrow money is not very likely to desire at the same time to buy goods at a high price. But the jury decide all questions of this kind ; and it is their duty to judge of the actual intention of the parties from all the evidence offered. If that intention is substan- tially that one should loan his money to another, who shall therefor, in any manner whatever, pay to the lender more than legal interest, it is a case of usury. " Where the real truth is a loan of money," said Lord Mansfield, " the wit of man cannot find a shift to take it out of the statute." If this great judge meant only that, whenever legal evidence shows the transaction to be a usurious loan, the law pays no respect whatever to any pretence or disguise, this is certainly true. But the wit of man docs undoubtedly devise many " shifts," which the law cannot detect. There seems to be a general rule in these cases in reference to the burden of proof ; the borrower must first show that he took the goods on compulsion ; and then it is for the lender to prove that no more than their actual value was re- ceived or charged for them. If one should borrow stock at a valuation much above the market rate, and agree to pay interest on this value for the use of the stock to sell or pledge, this would be usurious. A CHARGE FOE RISK OR FOR SERVICE. 273 One may lend his stock, and may, without usury, give the bor- rower the option to replace the stock, or to pay for it at even a high value, with interest. But, if he reserves this option to himself, the bargain is usurious, because it gives the lender the right to claim more than legal interest. So, the lender may reserve either the dividends or the interest, if he elects at the time of the loan ; but he cannot reserve the right of electing at a future time, when he shall know what the dividends are. A contract may seem to be two, and yet be but one, if the seeming two are but parts of a whole. Thus, if A borrows one thousand dollars, and gives a note promising to pay legal interest for it, and then gives another note for (or otherwise promises to pay) a further sum, in fact for no consideration but the loan, this is all one trans- action, and it constitutes a usurious contract. But if there be a loan on legal terms, with no promise pr obligation on the part of the borrower to pay any more, this might not be invalidated by a mere understanding that the borrower should, when the money was paid by him, make a present to the lender for the accommodation. And if, after a payment has been made, which discharged all legal obligation, the payer voluntarily adds a gift, this would not be usurious. But in every such case the question for a jury is, What was this additional transfer of money, in fact ; was it a voluntary gift, or was it the payment of a debt ? If aii honest gift, it was not usurious ; if a payment, it was usurious. A foreign contract, valid and lawful where made, may be enforced in a State in which such a contract, if made there, would be usurious. But if usurious where it was made, and, by reason of that usury, wholly void in that State, if it is put in suit in another State where the penalty for usury is less, it cannot be enforced under this miti- gated penalty ; but it is wholly void there also. SECTION II. A CIIAI1GK FOR RISK OR FOR SEKVICE. IT is undoubtedly lawful for a lender to charge an extra price for the risk he incurs, provided that risk be perfectly distinct and 274 INTEREST AND TJSUBY. different from the merely personal risk of the debtor's being unable to pay. If any thing is paid for this last risk, it is certainly usury. So, one may charge for services rendered, for brokerage, or for rate of exchange, and may even cause a domestic loan or discount to be actually converted into a foreign one, so as to charge the ex- change ; and this would not be usurious. But here, as before, and indeed throughout the law of usury, it is necessary to remember that the actual intention, and not the apparent purpose or form of the transaction, must determine its character. So, if one lends money to be used in business, and lends it upon such terms that he becomes a partner in fact with those who use it, taking his share of the profits, and becoming liable for the losses, this is not usurious. So, if one enters into a partnership, and provides money for its business, and the other party is to bear all the losses, and also ' to pay the capitalist more than legal interest as his share of the profits, this is not usurious, because there is no loan, if there be in fact a partnership ; for then there is a very important risk, as he becomes liable for all the debts of the partnership. The banks always get more than legal interest by their way of discounting notes and deducting the whole interest from the amount they give. This is perfectly obvious if we take an extreme case ; as if a bank discounted a note of a thousand dollars at fifteen years, in Massachusetts, the bank would discount the interest of all the fif- teen years ; the borrower would receive one hundred dollars, and at the end of fifteen years he would pay back one thousand dollars, which is equivalent to paying nine hundred dollars for the use of one hundred for fifteen years, whereas the legal interest would bo but ninety dollars. But this method is now established by usage and sanctioned by law. It should, however, be confined to dis- counts of negotiable paper, not having a very long time to run For the rule is founded upon usage, and the usage goes no further. SECTION ra. THE SALE OF NOTES. THERE are, perhaps, no questions in relation to interest and usury of more importance than those which arise from the sale of notes THE SALE OF NOTES. 275 or other securities. In the first place, there is no doubt whatever that the owner of a note has as good a right to sell it for the most he can get, as he has to sell any goods or wares which he owns. There is here no question of usury, because there is no loan of money, nor forbearance of debt. But, on the other hand, it is quite as certain that if any person makes his own note, and sells that for what he can get, this, while in appearance the sale of a note, is in fact the giving of a note for money. It is a loan and a borrowing, and nothing else. And if the apparent sale be for such a price that the seller pays more than legal interest, or, in other words, if the note bear interest and is sold for less than its face, oris not on interest, and more than interest is discounted, it is a usunous trans- action. Supposing these two rules to be settled, the question in each case is, under which of them does that case come, or to which of them does it draw nearest. We are not aware of any general principle so likely to be of use in determining these questions as this : if the seller of a note acquired it by purchase, or if it is his for money advanced or lent by him to its full amount, he may sell it for what he can get ; but if he be the maker of the note, or the agent of the maker, and receives for the note less than would be paid him if only a lawful discount were made, it is a usurious loan. In other words, the first holder of a note (and the maker of a note is not and cannot be its first holder) must pay to the maker the face of the "note, or its full amount. And after paying this, he may sell it, and any subsequent purchaser may sell it, as merchandise. The same rule must apply to corporations, and all other bodies or persons who issue their notes or bonds on interest. If sold by brokers for them, for less than the full amount, it is usurious. Nor can such notes come into the market free from the taint and the defence of usury, unless the first party who holds them pays for them their full value. But then conies another question. If a note be offered for sale, and be sold for less than its face, and the purchaser supposes him- self to buy it from an actual holder and not Yrom the maker, can the maker interpose the defence that it was actually usurious, on the ground that the seller was only his agent? I should say that he could not; that there can be no usury unless this is 276 INTEREST AND USURY. intended ; and that the guilty intention of one party cannot affect another party who was innocent. I should say, also, that one who, having no interest in a note, indorses or guarantees it for a certain premium, will be liable for its face ; he does not now add his credit to the value of his property and sell both together, as where he indorses a note which he holds himself, but sells his credit alone. This transaction I should not think usurious. And if it was open to no other defence, as fraud, for example, and was in fact what it purported to be, and not a mere cover for a usurious loan, we know no good reason why such indorser or guarantor should not be held liable to the full amount of his promise. SECTION IV. COMPOUND ZNTEKEST. COMPOUND interest is sometimes said to be usurious ; but it is not so ; and even those cases which speak of it as " savoring of usury " may be thought to go too far, unless every hard bargain for money is usurious. As the authorities now stand, however, a contract or promise to pay money with compound interest cannot, generally, be enforced. On the other hand, it is neither wholly void, nor attended with any penalty, as it would be if usurious ; but is valid for the principal and simple interest only. Nevertheless, compound interest is sometimes recognized as due by courts of law, as well as of equity ; and sometimes, too, by it3 own name. Thus, if a trustee be proved to have had the money of the party for whom he is trustee (who is called in law his cestui que trust) for a long time, without accounting for it, he may be charged with the whole amount, reckoned a^t compound interest, so as to cover his unlawful profits. If compound interest has accrued under a bargain for it, and been actually paid, it cannot be recovered back, as money usuriously paid may be. And if accounts are agreed to be settled by annual rests, which is in fact compound interest, or are actually settled so in good faith, the law sanctions this. Some- tunes, in cases of disputed accounts, the courts direct this method of settlement. ABSTEACTS OF THE USURY LAWS OF THE STATES. 277 Where money due on interest has been paid by sundry instal- ments, the mode of adjusting the amount which has the best authority, and the prevailing usage in its favor, seems to be this : Compute the interest due on the principal sum to the time when a payment, either alone or in conjunction with preceding payments, shall equal or exceed the interest due on the principal. Deduct this sum, and upon the balance cast interest as before, until a payment or payments equal the interest due ; then deduct again, and so on. Abstracts of the Usury Laws of the States. These laws are stated from the latest information ; but are constantly undergoing change, and are Kkely to be so, until restrictions upon intSrest are abolished, as they now nre in some States. Alabama. Legal interest, eight per cent. Usurious interest can not be recov- ered, and if paid, is to be deducted from the principal. Arkansas. Legal interest, six per cent. Parties may agree, by contract writ- ten or verbal, for whatever amount they will. California. Legal interest, seven per cent. Parties may agree on any rate of interest in writing. Connecticut. Legal interest, six per cent Person receiving more shall forfeit interest taken ; half to the prosecutor, half to the State Treasury. Contracts to pay taxes and insurance on sums loaned in addition to the legal interest are valid- District of Columbia. Legal interest, six per cent. Ten per cent, may be paid on agreement. Any excess forfeits the whole interest Delaware. Legal interest, six per cent. Penalty for taking more, forfeiture of the money lent ; half to the prosecutor, half to the State Florida. Legal interest, six per ct But the usury laws are expressly abolished. Georgia. Legal interest, seven per cent More than legal interest can not be re- covered. All titles to property made as part of a usurious contract are void. Illinois. Legal interest, six per cent. Parties may agree upon ten per cent, orally or in writing. If more is agreed on or is taken, only the principal can be recovered. Indiana. Legal interest, six per cent Ten per cent may be agreed upon in writing. It may be taken in advance. Excess can not be recovered, and, if paid, shall ,be considered as paid on account of the principal. Iowa. Legal interest, six per cent. Parties may agree in writing for ten per cent. If contract be for more, the creditor recovers only the principal, and interest at ten per cent, is forfeited to the State. Kansas. Legal interest, seven per cent. Parties may stipulate for any rate not exceeding twelve per cent. Contract for more forfeits all interest Usurious pay- ments held to be made on account of principal. 278 INTEREST AND USURY. Kentucky. Legal interest, six per cent. Extra interest forfeited ; if paid, may be recovered back. Louisiana. Legal interest, five per cent Conventional interest shall ia no case exceed eight per cent, under penalty of forfeiture of entire interest. Owner of negotiable paper discounted for more than eight per cent, may recover eight per cent Usurious interest may be recovered back, but must be sued for within twelve months. Maine. Legal interest, six per cent. ; but not to apply to letting cattle, or other similar contracts in practice among farmers; nor to maritime contracts, as bot- tomry or insurance ; and not to course of exchange in practice among merchants. Excessive interest not recoverable, and, if paid, may be recovered back, if sued for within a year. Maryland. Legal interest, six per cent. Excess forfeited. Massachusetts. Legal interest, six per ct Any rate of interest or discount may be made by agreement ; but if greater than six per cent, it must be in writing. Michigan. Legal interest, seven per cent Parties may agree in writing upon any rate not exceeding ten per cent If more interest is agreed for, only legal in- terest recoverable. Minnesota. Legal interest, seven per cent Parties may agree in writing for more, but agreement not valid for any excess over twelve per cent Interest on judgments, six per cent Mississippi Legal interest, six per cent. Parties may agree in writing for ten per cent. If more be taken or agreed for, the excess is forfeited. Missouri. Legal interest, six per cent. ; but parties may agree in writing for any rate not to exceed ten per cent If more be taken or agreed for, the creditor re- covers only the principal, and interest at ten per cent, is forfeited to the State. Parties may contract in writing for the payment of interest upon interest ; but the interest shall not be compounded oftener than once a year. Nebraska. Legal interest, ten per cent Parties may agree on any rate not exceeding fifteen per cent. On proof of illegal interest, plaintiff shall recover only principal. Nevada. Legal interest, ten per cent But parties may agree in writing for any rate. New Hampshire. Legal interest, six per cent A person receiving more for- feits threefold the excess ; but contracts are not invalidated by securing or taking more. Exceptions as to contracts of farmers and merchants as ih Maine. New Jersey. Legal interest, seven per cent. ; on usurious contract, principa only can be recovered. New York. Legal interest, seven per cent. A contract for more than legal in- terest is wholly void. If more than legal interest is paid, it may be recovered back within a year by payer, or within the next three years by the overseers of the poor. North Carolina. Legal interest, six per cent Eight per cent may be recov- BANKBUPTCY. 270 ered for loan of money by written agreement. On usurious contracts no interest is recoverable. OMo. Legal interest, six per cent. Any rate not exceeding eight per cent, may be agreed upon in writing ; excess can not be recovered. Oregon. Legal interest, ten per cent. Parties may agree for one per cent, a month. Usurious interest works a forfeiture of the principal and interest. Pennsylvania. Legal interest, six per cent. Excess can not be recovered. If paid, may be recovered back if sued for within six months. Khode Island. Legal interest, six per cent. Any higher rate may be agreed upon. South Carolina. Legal interest, seven per cent. More than legal interest may be agreed upon by the parties. Tennessee. Legal interest, six per cent. Parties may agree in writing for ten per cent. If more be charged, the whole interest is forfeited, and if paid, may be recovered back ; and the creditor is liable to a fine equal in amount to the ex- cessive interest. Texas. Legal interest, eight per cent. Parties may agree in writing for twelve per cent. If more than this is agreed for, no interest can be recovered. Vermont. More than six per cent, prohibited ; and a person paying more may recover excess ; but this is not to extend to usage of farmers or merchants, as in Maine and New Hampshire. Virginia. Legal interest, six per cent. All contracts for a greater rate void. Excess, if paid, may be recovered back. The receiver is liable to a fine of double the amount of the principal. West Virginia. Same as Virginia ; but a new code is under consideration, which may make a change in the law of usury. Wisconsin. Legal interest, seven per cent. ; but parties may agree upon a rate not exceeding ten per cent. Usurious contracts are void, and if excessive interest be paid, treble the amount thereof may be recovered back. CHAPTER XVIII. 33 A. IV 3 KTJ 3? T C Y . THE Constitution of the United States authorizes Congress to establish " uniform laws on the subject of bankruptcies throughout the United States." In 1800, a Bankrupt Law was passed, limited to five years ; but it was repealed before it had been in operation three years. In 1841, another Bankrupt Law was passed, and was re- pealed eighteen months afterwards. In March, 1867, another 280 BANKRUPTCY. Bankrupt Law was passed : it is entitled " An Act to establish a Uniform System of Bankruptcy throughout the United States." This act is in force now. It is so well adjusted, and provides so carefully that fraud shall be prevented and justice done in all cases, and seems to be so generally useful and acceptable, that I think it will probably be permanent, and, without being repealed, will bo amended from time to time as new exigencies arise, and as experi- ence shows the need of new or different provisions. It contains forty-eight sections; and I will now give an abstract of all the sections, excepting those of the greatest and most frequent practi- cal importance, and these I give in full. SECTION 1. Makes the several District Courts of the United States Courts of Bankruptcy, with full jurisdiction over all cases which come before them, and arose within their districts. SECT. 2. The several Circuit Courts. of the United States shall jiave a general superintendence and jurisdiction of all cases and questions arising under this act. SECT. 3. Concerns the appointment of registers in bankruptcy, the manner of the appointment, and who they may be. SECT. 4. Describes the powers and duties of registers, and their fees. SECT. 5. Provides for the proceedings before the registers, the removal of registers by the judge of the District Court, and the filling of the vacancy. SECT. 6. That the register or the parties concerned may take the opinion of the judge of the District Court in cases or upon ques- tions where that is desired. SECT. 7. Provides for the attendance of parties and witnesses when and where summoned, and for the punishment of perjury. SECTS* 8, 9, and 10. Relate to appeals from the District Court to the Circuit Court, and from the Circuit Court to the Supreme Court if the matter in dispute exceeds $2,000. And gives the Supreme Court power to provide rules, orders, and forms for prac- tice under this act. SECT. 11. States how a person wishing to be made a bankrupt may proceed, and what he must not do. This section I give in full. ABSTEACTS OF THE LAW OF BANKECTPTCY. 281 Voluntary Bankruptcy. Commencement of Proceedings. SECT. 11. And be it further enacted, That if any person residing within the jurisdiction of the United States, owing debts provable under this act exceeding the amount of three hundred dollars, shall apply by petition, addressed to the judge of the judicial district in which such debtor has resided or carried on busi- ness for the six months next immediately preceding the time of filing such petition, or for the longest period during such six months, setting forth his place of resi- dence, his inability to pay all his debts in full, his willingness to surrender all his estate and effects for the benefit of his creditors, and his desire to obtain the benefit of this act, and shall annex to his petition a schedule, verified by oath before the court, or before a register in bankruptcy, or before one of the commissioners of the circuit court of the United States, containing a full and true statement of all his debts, and, as far as possible, to whom due, with the place of residence of each creditor, if known to the debtor, and, if not known, the fact to be so stated, and the sum due to each creditor, also the nature of each debt or demand, whether founded on written security, obligation, contract, or otherwise, and also the true cause and consideration of such indebtedness in each case, and the place where such indebtedness accrued, and a statement of any existing mortgage, pledge, lien, judgment, or collateral or other security given for the payment of the same ; and shall also annex to his petition an accurate inventory, verified in like manner, of all his estate, both real and personal, assignable under this act, describing the same, and stating where it is situated, and whether there are any, and, if so, what incumbrances thereon, the filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt; Provided that all citizens of the United States, petitioning to be declared bankrupt, shall, in filing such petition, and before any proceedings thereon, take and subscribe an oath of allegiance and fidelity to the United States, which oath shall be filed and recorded with the proceedings in bankruptcy. And the judge of the district courts, or, if there be no opposing party, any register of said court, to be designated by the judge, shall forthwith, if he be satisfied that the debts due from the petitioner exceed three hundred dollars, issue a warrant, to be signed by such judge or register, directed to the marshal of said district, authorizing him forthwith, as messenger, to publish notices in such newspapers as the warrant specifies ; to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him, hi addition, by the debtor, and to give such personal or other notice to any persons concerned as the warrant specifies, wliich notice shall state : First, That a warrant in bankruptcy has been issued against the estate of the debtor. Second, That the payment of any debts and the delivery of any property belonging to such debtor to him or for his use, and the transfer of any property by him, are forbidden by law. Third, That a meeting of the creditors of the debtor, giving the names, resi- 282 BANKRUPTCY. dences, and amounts, so far as known, to prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden at a time and place designated hi the warrant, not less than ten, nor more than ninety days after the issuing of the same. SECT. 12. Provides for the meetings of creditors, called under the preceding section. SECTS. 13 and 14. Provide for the election or appointment, tl>e duties, authority, and conduct of the assignee ; determine what property shall be exempted, and what property must be transferred to the assignee. These sections I give in full. Assignments and Assignees. SECT. 13. And be it further enacted, That the creditors shall, at the first meeting held after due notice from the messenger, in presence of a register designated by the court, choose one or more assignees of the estate of the debtor ; the choice to be m.ode of the greater part in value and in number of the creditors who have proved their debts. If no choice is made by the creditors at said meeting, the judge, or, if there be no opposing interest, the register, shall appoint one or more assignees. If an assignee, so chosen or appointed, fails within five days to express in writing his acceptance of the trust, the judge or register may fill the vacancy. All elections or appointments of assignees shall be subject to the approval of the judge ; and when in his judgment it is for any cause needful or expedient, he may appoint additional assignees, or order a new election. The judge at any time may, and, upon the request in writing of any creditor who has proved his claim, shall require the assignee to give good and sufficient bond to the United States, with a condition for the faithful performance and discharge of his duties ; the bond shall be approved by the judge or register by his indorsement thereon, shall be filed with the record of the case, and inure to the benefit of all creditors proving then* claims, and may be prosecuted in the name and for the benefit of any injured party. If the assignee fails to give the bond within such tune as the judge orders, not exceeding ten days after notice to him of such order, the judge shall remove him, and appoint another in his place. SECT. 14. And be it further enacted, That as soon as said assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto, and such assignment shall relate back to the commencement of said pro- ceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and persotaal, shall vest in said assignee, although ABSTEACTS OF THE LAW OF BANKRUPTCY. 283 the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the com- mencement of said proceedings : Provided, however, That there shall be excepted from the operation of the provisions of this section the necessary household and kitchen furniture, and such other articles and necessaries of such bankrupt as the said assignee shall designate and set apart, having reference in the amount to the family, condition, and circumstances of the bankrupt, but altogether not to exceed in value, in any case, the sum of five hundred dollars ; and also the wearing apparel of such bankrupt, and that of his wife and children, and the uniform, arms, and equipments of any person who is or has been a soldier in the militia or in the service of the United States, and such other property as now is, or hereafter shall be, exempted from attachment or seizure, or levy on execution by the laws of the United States, and such other property not included in the foregoing excep- tions as is exempted from levy and sale upon execution or other process, or order of any court, by the laws of the State in which the bankrupt has his domicile at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such State exemption laws in force in the year eighteen hundred and sixty-four. Provided, That the foregoing exception shall operate as a limitation upon the conveyance of the property of the bankrupt to his assignees, and in no case shall the property hereby excepted pass to the assignees, or the title of the bankrupt thereto be impaired or affected by any of the pro- visions of this act ; and the determination of the assignee in the matter shall, on exception taken, be subject to the final decision of the said court: And provided further, That no mortgage of any vessel or of any other goods or chattels, made as security for any debt or debts, in good faith and for present considerations, and otherwise valid, and duly recorded, pursuant to any statute of the United States, or of any State, shall be invalidated or affected hereby ; and all the property con- veyed by the bankrupt in fraud of his creditors ; all rights in equity, choses in action, patents, and patent rights and copyrights ; all debts due him, or any person for his use, and all liens and securities therefor ; and all his rights of action for property or estate, real or personal, and for any cause of action which the bank- rupt had against any person arising from contract or from the unlawful taking or detention or of injury to the property of the bankrupt; and all his rights of redeeming such property or estate, with the like right, title, power, and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bank- rupt might or could have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at onco vested in such assignee ; and he may sue for and recover the said estate, debts, and effects, and may prosecute and defend all suits at law or in equity, pending at the time of the adjudication of bankruptcy, in which such bankrupt is a party in his own name, in the same manner and with the like effect as they might have been presented or defended by such bankrupt ; and a copy, duly certified by the clerk of the court under tlie seal thereof, of the assignment made by the judge or regis- ter, as the case may be, to him as assignee, shall be conclusive evidence of his 20 284 BANKRUPTCY. title as such assignee to take, hold, sue for, and recover the property of the bankrupt, as hereinbefore mentioned ; but no property held by the bankrupt in trust shall pass by such assignment. No person shall be entitled to maintain an action against an assignee in bankruptcy for any thing done by him as such assignee, without pre- viously giving him twenty days' notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering amends, should he see fit to do so. No person shall be entitled, as against the assignee, to withhold from nim possession of any books of account of the bankrupt, or claim any lien thereon ; and no suit in which the assignee is a party shall be abated by his death or removal from office, but the same may be prosecuted and defended by his successors, or by the surviving or remaining assignee, as the case may be. The assignee shall have authority, under the order and direction of the court, to redeem or discharge any mortgage or conditional contract, or pledge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due perform- ance of the condition thereof, or to sell the same subject to such mortgage, lien, or other incumbrances. The debtor shall also, at the request of the assignee, and at the expense of the estate, make and execute any instruments, deeds, and writings which may be proper, to enable the assignee to possess himself fully of all the assets of the bankrupt. The assignee shall immediately give notice of his appoint- ment by publication, at least once a week for three successive weeks, in such news- papers as shall, for that purpose, be designated by the court, due regard being had to their general circulation in the district or in that portion of the district in which the bankrupt and his creditors shall reside, and shall, within six months, cause the assignment to him to be recorded in every registry of deeds or other office withiu the United States where a conveyance of any lands owned by the bankrupt ought by law to be recorded ; and the record of such assignment, or a duly certified copy thereof, shall be evidence thereof in all courts. SECT. 15. Gives some further direction to the assignee, as to demanding, receiving, and selling the property. SECT. 16. Gives directions in relation to suits by the assignee to recover debts or other effects assigned to him. SECT. 17. Gives directions as to the settlement by the assignee of the estate of the bankrupt ; and gives him power to submit dis- puted demands against debtors to the estate, to arbitration, or to compound and settle them. SECT. 18. Provides for death, resignation, or removal of the assignee, and filling the vacancy ; and states the general duties of assignees. SECT. 19. Relates to the debts of the bankrupt payable at the time of bankruptcy ; and also his debts payable at a future time. This section I give in full. ABSTRACTS OF THE LAW OF BANKRUPTCY. 285 SECT. 19. And be it further enacted, That all debts due and payable frcm the bankrupt at the time of the adjudication of bankruptcy, and all debts then exist- ing but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of contract, may be proved against the estate of the bankrupt. All demands against the bankrupt for or on account of any goods or chattels wrongfully taken, converted, or withheld by him, may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest. If the bankrupt shall be bound as drawer, indorser, surety, bail, or guarantor upon any bill, bond, note, or any other specialty or contract, or for any debt of another person, and his liability shall not have become absolute until after the adjudication of bankruptcy, the creditor may prove the same after such liability shall have become fixed, and before the final dividend shall have been declared. In all cases of contingent debts and contingent liabilities contracted by the bank- rupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contin- gency shall happen before the order for the final dividend ; or he may at any time apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertained. Any person liable as bail, surety, guarantor, or otherwise for the bankrupt, who shall have paid the debt or any part thereof in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor if he shall have proved the same, although such payments shall have been made after the proceedings in bankruptcy were commenced. And any person so liable for the bankrupt, and who has not paid the whole of said debt, but is still liable for the same or any part thereof, may, if the creditor shall fail or omit to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the rules, and subject to such regulations and limitations as may be established by such rules. Where the bank- rupt is liable to pay rent, or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part therof up to the tune of the bankruptcy, as if the same grew due from day to day, and not at such fixed and stated periods. If any bankrupt shall be liable for unliquidated damages arising out of any con- tract or promise, or on account of any goods or chattels wrongfully taken, converted or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed against the estate. SECT. 20. Relates to mutual debts and set-offs ; that the balance shall be struck. SECT. 21. Prohibits a creditor who proves his debt from bringing any action against the bankrupt. SECT. 22. Provides for proof of debts of the creditors of the bank- 286 BANKRUPTCY. rupts, whether individuals or corporations. It must be by oath or solemn affirmation, and other and further evidence if it be required. This proof may be made before a commissioner, and sent by him to the assignee. Debts or claims not duly and sufficiently proved are to be rejected. SECT. 23. Provides for proof of debts before assignee is chosen ; declares no creditor who has received any preference or advantage from the bankrupt shall receive any dividend unless he surrenders the preference or advantage, of whatever kind it may be, to the assignee. SECT. 24. Provides for appeal from District Court to Circuit Court from a decision rejecting his claim. SECT. 25. Court may order perishable property, or property to which right is disputed, to be sold. SECT. 26. Relates to the attendance of bankrupts, and the exami- nation of them, and their duties and rights. This section I give in full. SECT. 26. And be it further enacted, That the court may, on the application of the assignee in bankruptcy, or of any creditor, or without any application, at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination on oath, upon all matters relating to the disposal or condition of his property, to his trade and dealings with others, and his accounts concerning the same, to all debts due to or claimed from him, and to all other matters concerning his property and estate and the due settlement thereof according to law, which examination shall be in writing, and shall be signed by the bankrupt and be filed with the other proceedings ; and the court may, in like manner, require the attendance of any other person as a witness, and if such person shall fail to attend, on being summoned thereto, the court may compel his attendance by warrant directed to the marshal, commanding him to -arrest such person, and bring him forthwith before the court, or before a register in bankruptcy, for examination as such witness. If the bankrupt is imprisoned, absent, or disabled from attendance, the court may order him to be produced by the jailer, or any officer in whose cus- tody he may be, or may direct the examination to be had, taken, and certified, at such time and place and in such manner as the court may deem proper, and with like effect as if such examination had been in court. The bankrupt shall at all times, until his discharge, be subject to the order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do and per- form all acts required by the court touching the assigned property or estate, and to enable the assignee to demand, recover, and receive all the property and estate assigned, wherever situated ; and for neglect or refusal to obey any order of the ABSTRACTS OP THE LAW OF BANKRUPTCY. 237 court, such bankrupt may be committed and punished as for a contempt of court. If the bankrupt is without the district, and unable to return and personally attend at any of the tunes, or do any of the acts which may be specified or required pur- suant to this section, and if it appears that such absence was not caused by wilful default, and if, as soon as may be after the removal of such impediment, he offers to attend and submit to the order of the court in all respects, he shall be permitted BO to do, with like effect as if he had not been in default. He shall also be at liberty, from time to time, upon oath, to amend and correct his schedule of credi- tors and property, so that the same shall conform to the facts. For good cause shown, the wife o/any bankrupt may be required to attend before the court, to the end that she may be examined as a witness ; and if such wife do not attend at the time and place specified in the order, the bankrupt shall not be entitled to a dis- charge unless he shall prove to the satisfaction of the court that he was unable to procure the attendance of his wife. No bankrupt shall be liable to arrest during the pendency of the proceedings in bankruptcy in any civil action, unless the same is founded on some debt or claim from which his discharge or bankruptcy would not release him. SECT. 27. Relates to the distribution of the bankrupt's estate. This section I give in full. TJie Distribution of the Bankrupt's Estate. SECT. 27. And be it further enacted, That all creditors whose debts are duly proved and allowed shall be entitled to share in the bankrupt's property and estate pro rata, without any priority or preference whatever, except that wages due from him to any operative, or clerk, or house-servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the adjudication of bankruptcy, shall be entitled to priority, and shah 1 be first paid in full : Provided, That any debt proved by any person liable as bail, surety, guarantor, or otherwise, for the bankrupt, shall not be paid to the person so proving the same until satisfac- tory evidence shall be produced of .the payment of such debt by such person so liable, and the share to which such debt would be entitled may be paid into court, or otherwise held for the benefit of the party entitled thereto, as the court may direct. At the expiration of three months from the date of the adjudication of bankruptcy in any case, or as much earlier as the court may direct, the court, upou the request of the assignee, shall call a general meeting of the creditors, of which due notice shall be given, and the assignee shall then report, and exhibit to the court and to the creditors just and true accounts of all his receipts and payments, verified by his oath, and he shall produce and file vouchers for all payments for which vouchers shall be required by any rule of the court ; he shall also submit the schedule of the bankrupt's creditors and property as amended, duly verified by the bankrupt, and a statement of the whole estate of the bankrupt as then 288 BANKRUPTCY. ascertained, of the property recovered and of the property outstanding, specifying the cause of its being outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his hands. At such meeting the majority in value of the creditors present shall determine whether any and what part of the net pro- ceeds of the estate, after deducting and retaining a sum sufficient to provide for all undetermined claims, which, by reason of the distant residence of the creditor, or for other sufficient reason, have not been proved, and for other expenses and contin- gencies, shall be divided among the creditors; but unless at least one-half in value of the creditors shall attend such meeting, either in person or by attorney, it shall be the duty of the assignee so to determine. In case a dividend is ordered the register shall, within ten days after such meeting, prepare a list of creditors entitled to dividend, and shall calculate and set opposite to the name of each creditor who has proved his claim the dividend to which he is entitled out of the net proceeds of the estate set apart for dividend, and shall forward by mail to every creditor a statement of the dividend to which he is entitled, and such creditor shall be paid by the assignee in such manner as the court may direct. SECT. 28. Relates to subsequent meetings of the creditors, divi- dends, compensation of assignee, and order of dividend and pay- ment from bankrupt's estate. This section I give in full. SECT. 28. And be it further enacted, That the like proceedings shall be had at the expiration of the next three months, or earlier, if practicable, and a third meet- ing of creditors shall then be called by the court, and a final dividend then declared, unless any action at law or suit hi equity be pending, or unless some other estate or effects of the debtor afterwards come to the hands of the assignee, in which case the assignee shall, as soon as may be, convert such estate or effects into money, and within two months after the same shall be so converted, the same shall be divided in manner aforesaid. Further dividends shall be made in like manner as often as occasion requires ; and after the third meeting of creditors, no further meeting shall be called, unless ordered by the court. If at any tune there shall be in the hands of the assignee any outstanding debts or other property, due or belonging to the estate, which cannot be collected and received by the assignee without unreasonable or inconvenient delay or expense, the assignee may, under the direction of the court, sell and assign such debts or other property in such manner as the court shall order. No dividend already declared shall be disturbed by reason of debts being subsequently proved ; but the creditors proving such debts shall be entitled to a dividend equal to those already received by the other creditors before any further payment is made to the latter. Preparatory to the final dividend, the assignee shall submit his account to the court, and file the same, and give notice to the creditors of such filing, and shall also give notice that he will apply for a settlement of his account, and for a discharge from all liability as assignee, at a time to be specified hi such notice ; and at such time the ABSTKACTS OF THE LAW OF BANKRUPTCY. 289 cr>urt shall audit and pass the accounts of the assignee, and such assignee ahall, if required by the court, be examined as to the truth of such account, and, if found correct, he shall thereby be discharged from all liability as assignee to any creditor of the bankrupt. The court shall thereupon order a dividend of the estate and effects, or of such part thereof as it sees fit, among such of the creditors as have proved their claims, in proportion to the respective amount of their said debts. In addition to all expenses necessarily incurred by him in the execution of his trust, in any case, the assignee shall be entitled to an allowance for his services in such case, on all moneys received and paid out by him therein, for any sum not exceed- ing one thousand dollars, five per centum thereon ; for any larger sum, not exceed- ing five thousand dollars, two and a half per centum on the excess over one thousand dollars ; and for any larger sum, one per centum on the excess over five thousand dollars ; and if, at any time, there shall not be in his hands a sufficient amount of money to defray the necessary expenses required for the further execu- tion of his trust, he shall not be obliged to proceed therein until the necessary funds are advanced or satisfactorily secured to him. If, by accident, mistake or other cause, without fault of the assignee, either or both of the said second and third meetings should not be held within the times limited, the court may, upon motion of an interested party, order such meetings, with like efl'ect as to the validity of the proceedings as if the meeting had been duly held. In the order for a dividend, under this section, the following claims shall be entitled to priority or preference, and to be first paid in full in the following order : First, The fees, costs, and expenses of suits, and the several proceedings in bank- ruptcy under this act, and for the custody of property, as herein provided. Second, All debts due to the United States, and all taxes and assessments under the laws thereof. Third, All debts due to the State in which the proceedings in bankruptcy are pending, and all taxes and assessments made under the laws of such State. Fourth, Wages due to any operative, clerk, or house-servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the first publication of the notice of proceedings in bankruptcy. Fifth, All debts due to any persons who, by the laws of the United States, are or may be entitled to a priority or preference, in like manner as if this act had not been passed : Always provided, That nothing contained in this act shall interfere with the assessment and collection of taxes by the authority of the United States or any State. SECTS. 29, 30, 31, 32, 33, and 34. Relate to the discharge of tha bankrupt, and its effect. These sections I give in full. The Bankrupt's Discharge, and its Effect. . SECT. 29. And, be it further enacted, That at any time after the expiration of six months from the adjudication of bankruptcy, or if no debts have been proved 290 BANKRUPTCY. against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudica- tion of bankruptcy, the bankrupt may apply to the court for a discharge from his debts, and the court shall thereupon order notice to be given by mail to all credit- ors who have proved their debts, and by publication at least once a week in such newspapers as the court shall designate, due regard, being had to the general circu- lation of the same in the district, or in that portion of the district in which the bankrupt and his creditors shall reside, to appear on a day appointed for that pur- pose, and show cause why a discharge should not be granted to the bankrupt. No discharge shall be granted, or, if granted, be valid, if the bankrupt has wilfully sworn falsely hi his affidavit annexed to his petition, schedule, or inventory, or upon any examination in the course of the proceedings in bankruptcy, in relation to any material fact concerning his estate or his debts, or to any other material fact : or if he has concealed any part of his estate or effects, or any books or writings relating thereto, or if he has been guilty of any fraud or negligence in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presen- tation of his petition and inventory, excepting such pioperty as he is permitted to retain under the provisions of this act, or if he has caused, permitted, or suffered any loss, waste, or destruction thereof; or if, within four months before the com- mencement of such proceedings, he has procured his lands, goods, money, or chat- tels to be attached, sequestered, or seized on execution ; or if, since the passage of this act, he has destroyed, mutilated, altered, or falsified any of his books, docu- ments, papers, writings, or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document, with in- tent to defraud his creditors ; or has removed or caused to be removed any part of his property from the district, with intent to defraud his creditors ; or if he has given any fraudulent preference contrary to the provisions of this act, or made any fraudulent payment, gift, transfer, conveyance, or assignment of any part of his property, or has lost any part thereof in gaming, or has admitted a false or- fictitious debt against his estate ; or if, having knowledge that any person has proved such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowledge ; or if, being a merchant or tradesman, he has not, sub- sequently to the passage of this act, kept proper books of account ; or if he, or any person in his behalf, has procured the assent of any creditor to the discharge, or influenced the action of any creditor at any stage of the proceedings, by any pecu- niary consideration or obligation ; or if he has, in contemplation of becoming bank- rupt, made any pledge, payment, transfer, assignment, or conveyance of any part of his property, directly or indirectly, absolutely or conditionally, for the. purpose of preferring any creditor or person having a claim against him, or who is or may be under liability for him, or for the purpose of preventing the property from coming into ths hands of the assignee, or of being distributed under this act in satisfaction of his debts ; or if he has been convicted of any misdemeanor under this act, or has been guilty of any fraud whatever contrary to the true intent of this act ; and be- fore any discharge is granted, the bankrupt shall take and subscribe an oath to the ABSTRACTS OP THE LAW OF BANKRUPTCY. 291 effect that he has not done, suffered, or been privy to any act, matter, or thing specified in this act as a ground for withholding such discharge, or as invalidating such discharge if granted. SECT. 30. And be it further enacted, That no person who shall have been dis- charged under this act, and shall afterwards become bankrupt, on his own application, shall be again entitled to a discharge whose estate is insufficient to pay seventy per centum of the debts proved against it, unless the assent in writing of three-fourths in value of his creditors who have proved their claims is filed at or before the time of application for discharge ; but a bankrupt who shall prove to the satisfaction of the court that he has paid all the debts owing by him at the time of any previous bankruptcy, or who has been voluntarily released therefrom by his creditors, shall be entitled to a discharge in the same manner and with the same effect as if he had not previously been bankrupt. SECT. 31. And it is further enacted, That any creditor opposing the discharge of any bankrupt may file a specification in writing of the grounds of hij opposition, and the court may, in its discretion, order any question of fact so presented to be tried at a stated session of the district court. SECT. 32. And be it further enacted, That if it shall appear to the court that the bankrupt has in ajl things conibrmed to his duty under this act, and that he is entitled, under the provisions thereof, to receive a discharge, the court shall grant him a discharge from all his debts except as hereinafter provided, and shall give him a certificate thereof under the seal of the court, in substance as follows : District Court of the United States. District of Whereas has been duly adjudged a bankrupt under the act of Congress establishing a uni- form system of bankruptcy throughout the United States, and appears to have con- formed to all the requirements of law in that behalf, it is therefore ordered by the court that said be forever discharged from all debts and claims which by said act are made provable against his estate, and which existed on the day of , on which day the petition for adjudication was filed by (or against) him ; excepting such debts, if any, as are by said act excepted from the operation of a discharge in bankruptcy. Given under my hand and the seal of the Court at in the said district, this day of , A.D. (Seal.) , Judge SECT. 33. And be it further enacted, That no debt created by the fraud or em- bezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act ; but the debt may be proved, and the dividend thereon shall be a payment on account of said debt ; and no discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise. [And in all proceedings in bankruptcy commenced after one year from the time this act shall go into operation, no discharge shall be 292 BANKRUPTCY. granted to a debtor whose assets do not pay fifty per centum of the claims against his estate, unless the assent in writing of a majority in number and value of his creditors who have proved their claims is filed in the case at or before the time of application for discharge.] SECT. 34. Atid be it further enacted, That a discharge duly granted under this act shall, with the exceptions aforesaid, release the bankrupt from all debts, claims, liabilities, and demands which were or might have been proved against his estate in bankruptcy, and may be pleaded, by a simple averment that on the day of its date such discharge was granted to him, setting the same forth hi haec verba, as a full and complete bar to all suits brought on any such debts, claims, liabilities, or demands, and the certificate shall be conclusive evidence in favor of such bankrupt of the fact and the regularity of such discharge : Always provided, That any creditor or creditors of said bankrupt, whose debt was proved or provable against the estate in bankruptcy, who shall see fit to contest the validity of said discharge on the ground that it was fraudulently obtained, may, at any time within [two years] after the date thereof, apply to the court which granted it to set aside and annul the same. Said application shall be in writing, shall specify which, in particular, of the several acts mentioned in section twenty-nine it is intended to give evidence of against the bankrupt, setting forth the grounds of avoidance, and no evidence shall be admitted as to any other of the said acts ; but said application shall be sub- ject to amendment at the discretion of the court. The court shall cause reasonable notice of said application to be given to said bankrupt, and order him to appear and answer the same, within such time as to the court shall seem fit and proper. If, upon the hearing of said parties, the court shall find that the fraudulent acts, or any of them, set forth as aforesaid by said creditor or creditors against the bankrupt, are proved, and that said creditor or creditors had no knowledge of the same until after the granting of said discharge, judgment shall be given in favor of said creditor or creditors, and the discharge of said bankrupt shall be set aside and annulled. But if said court shall find that said fraudulent acts, and all of them, set forth as aforesaid, are not proved, or that they were known to said creditor or creditors before the granting of said discharge, then judgment shall be rendered in favor of the bankrupt, and the validity of his discharge shall not be affected by said pro- ceedings. SECT. 35. Relates to fraudulent conveyances or transfers by the bankrupt, declares them to be void, and defines what are such conveyances or transfers. This section I give in full. Preferences and Fraudulent Conveyances Declared Void. SECT. 35. And be it further enacted, That if any person, being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by ABSTRACTS OF THE LAW OF BANKRUPTCY. 293 or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or" by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited ; and if any person being insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer, or other conveyance, is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade any of the provisions of this act, the sale, assignment, transfer, or, conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. Any contract, covenant, or security made or given by a bankrupt or other person with, or in trust for, any creditor, for securing the pay- ment of any money as a consideration for or with intent to induce the creditor to for bear, opposing the application for discharge of the bankrupt, shall be void ; and if any creditor shall obtain any sum of money or other goods, chattels, or security from any person as an inducement for forbearing to oppose, or consenting to such application for discharge, every creditor so offending shall forfeit all right to any share or dividend in the estate of the bankrupt, and shall also forfeit double the value or amount of such money, goods, chattels, or security BO obtained, to be recovered by the assignee for the benefit of the estate. SECTS. 36 and 3T. Relate to the bankruptcy of partnerships or corporations, and apply to them the provisions of this act. SECT. 38. Provides that the filing of the petition for bankruptcy shall be taken as the beginning of the proceedings, and also for the taking of testimony by depositions. SECT. 39. Relates to what is called Involuntary Bankruptcy, or bankruptcy on the petition of a creditor. This section I give in full. 294 BANKRUPTCY. Involuntary Bankruptcy. SECT. 39. And be it further enacted, That any person residing and owing debts as aforesaid, who, after the passage of this act, shall depart from the State, district, or Territory, of which he is an inhabitant, with intent to defraud his creditors, or, being absent, shall, with such intent, remain absent ; or shall conceal himself to avoid the service of legal process in any action for the recovery of a debt or demand provable under this act ; or shall conceal and remove any of his property to avoid its being attached, taken, or sequestered on legal process ; or shall make any assign- ment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, either within the United States or elsewhere, with intent to delay, defraud, or hinder his creditors ; or who has been arrested and held hi custody under or by virtue of mesne process of execution, issued out of any court of any State, district, or Territory, within which such debtor resides or has property, founded upon a demand in its nature provable against a bankrupt's estate under this act, and for a sum exceeding one hundred dollars, and such process is remaining in force and not discharged by payment, or in any other manner provided by the law of such State, district, or Territory applicable thereto, for a period of seven days ; or has been actually imprisoned for more than seven days in a civil action, founded on contract, for the sum of one hundred dollars or upwards ; or who, being bankrupt or insol- vent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale, conveyance, or transfer of money, or other property, estate, rights, or credits, or give any warrant to confess judgment, or procure or suffer his prop- erty to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or persons who are or may be liable for him as indorsers, bail, sureties, or otherwise, or with the intent, by such disposition of his property, to defeat or delay the operation of this act ; or who, being a banker, mer- chant, or trader, has fraudulently stopped or suspended and not resumed payment of his commercial paper, within a period of fourteen days, shall be deemed to have committed an act of bankruptcy, and, subject to the conditions hereinafter pre- scribed, shall be adjudged a bankrupt, on the petition of one or more of his creditors, the aggregate of whose debts provable under this act amount to at least two hundred and fifty dollars, provided such petition is brought within six months after the act of bankruptcy shall have been committed. And if such person shall be adjudged a bankrupt, the assignee may recover back the money or other prop- erty so paid, conveyed, sold, assigned, or transferred contrary to this act, provided the person receiving such payment or conveyance had reasonable cause to believe that a fraud on this act was intended, or that the debtor was insolvent, and such creditor shall not be allowed to prove his debt in bankruptcy. SECTS. 40, 41, 42. Regulate the proceedings under such a peti- tion. ABSTRACTS OF THE LAW OF BANKRUPTCY. 295 SECT. 43. Relates to the superseding of the proceedings in bank- ruptcy, by placing the property in the hands of trustees, if three- fourths in value of the creditors desire it. This section I give iu full. Of Superseding the Bankrupt Proceedings by Arrangement. SECT. 43. And be it further enacted, That if at the first meeting of creditors, or at any meeting of creditors to be specially called for that purpose, ai.d of which previous notice shall have been given for such length of time and in such manner as the court may direct, three-fourths in value of the creditors whose claims have been proved shall determine and resolve that it is for the interest of the general body of the creditors that the estate of the bankrupt should be wound up and settled, and distribution made among the creditors by trustees, under the inspection and direction of a committee of the creditors, it shall be lawful for the creditors to certify and report such resolution to the court, and to nominate one or more trustees to take and hold and distribute the estate, under the direction of such committee. If it shall appear to the court, after hearing the bankrupt and such creditors as may desire to be heard, that the resolution was duly passed and that the interests of the creditors will be promoted thereby, it shall confirm the same ; and upon the execution and filing, by or on behalf of three-fourths in value of all the creditors whose claims have been proved, of a consent that the estate of the bankrupt be wound up and settled by said trustees, according to the terms of such resolution, the bankrupt, or his assignee in bankruptcy, if appointed, as the case may be, shall, under the direction of the court, and under oath, convey, transfer, and deliver all the property and estate of the bankrupt to the said ti ustee or trustees, who shall, upon such conveyance and transfer, have and hold the same in the same manner, and with the same powers and rights, in all respects, as the bankrupt would have had or held the same if no proceedings in bankruptcy had been taken ; or as the assignee in bankruptcy would have done had such resolution not been passed ; and such consent and the proceedings thereunder shall be as binding in all respects on any creditor whose debt is provable, who has not signed the same, as if he had signed it, and on any creditor whose debt, if provable, is not proved, as if he had proved it ; and the court, by order, shall direct all acts and tilings needful to be done to carry into effect such resolution of the creditors ; and the said trustees shall proceed to wind up and settle the estate under the direction and inspection of such committee of the creditors, for the equal benefit of all such creditors, and the winding up and settlement of any estate under the provisions of this section shall be deemed to be proceedings in bankruptcy under this act ; and the said trustees shall have all the rights and powers of assignees in bankruptcy. The court, on the application of such trustees,' shall have power to summon and examine, on oath or otherwise, the bankrupt, and any creditor, and any person indebted to the estate, or known or suspected of having any of the estate in his possession, or any other person whose examination may be material or necessary to 296 BANKRUPTCY. aid the trustees in the execution of their trust, and to compel the attendance of such persons and the production of books and papers in the same manner as in other proceedings hi bankruptcy under this act ; and the bankrupt shall have the like right to apply for and obtain a discharge after the passage of such resolution and the appointment of such trustees as if such resolution had not been passed, and as if all the proceedings had continued hi the manner provided in the preced- ing sections of this act. If the resolution shah 1 not be duly reported, or the consent of the creditors shah 1 not be duly filed, or if, upon its filing, the court shall not think fit to approve thereof, the bankruptcy shall proceed as though no resolution had been passed, and the court may make all necessary orders for resuming the proceedings. And the period of time which shall have elapsed between the date of the resolution and the date of the order for resuming the proceedings shall not be reckoned hi calculating periods of tune prescribed by this act. SECT. 44. Provides that debtors, who, after the commencement of proceedings in bankruptcy (which means the filing of the petition), fraudulently conceal any property, or hinder the assignee from get- ting hold of it, or spend any part of it in gaming, or, within three months next before the petition, dispose of any property otherwise than by honest transactions in his trade, which property was bought on credit and is unpaid for, shall be punished by imprisonment uot exceeding three years. SECT. 45. Provides that defaulting officers shall be punished by a fine not less than three hundred nor more than five hundred dol- lars, and imprisonment not more than three years. SECT. 46. Provides that forgery or counterfeiting of any court seal, any court paper, or the tendering for use of any document so forged or counterfeited, shall be punished by a fine not less than five hundred iior more than five thousand dollars, and imprisonment not exceeding five years. SECT. 47. Relates to fees and costs of proceedings. SECT. 48. Gives the meaning and definition of sundry words used in the act. SECT. 49. Gives 'jurisdiction in cases of bankruptcy to the Supreme Court of the District of Columbia and of the several Terri- tories, when the bankrupt resides therein. SECT. 50. Declares that the act goes into force when approved, but no petition can be filed before 1st of June, 1867. On July 25, 1868, a short amendatory act was passed, as follows: AMENDATORY ACT. . 297 Amendatory Act of 1868. A BILL IN AMENDMENT TO AN ACT ENTITLED " AN ACT TO ESTABLISH A UNIFORM SYSTEM OF BANKRUPTCY THROUGHOUT THE UNIIED STATES," APPROVED MARCH 2, 1867. Be it enacted, $*c., That the provisions of the second clause of the 33d section of said act shall not apply to cases of proceedings in bankruptcy commenced prior to the first day of January, 1869, and the time, during which the operation of the provisions of said clause is postponed, shall be extended until the said first day of January, 1869, and said clause is so amended as to read as follows : In all proceedings in bankruptcy commenced after the first day of January, 1869, no discharge shall be granted to a debtor whose assets shall not be equal to fifty per centum of the claims proved against his estate, upon which he shall be liable as the principal debtor, unless the assent in writing of a majority hi number and value of his creditors to whom he shall have become liable as principal debtor, and who shall have proved their claims, be filed in the case at or before the tune of the hearing of the application for discharge. SECT. 2. And be it further enacted, That said act be further amended as follows : The phrase " presented or defended," hi the 14th section of said act, shall read " prosecuted or defended." The phrase " nor resident debtors," in line 5, section 22, of the act as printed in the statute at large, shall read " non-resident creditors " that the word " or," in the next to the last line of the 39th section of the act, shall read " and ; " that the phrase " section 13," in the 42d section, shall read " section 11 ;" and the phrase " or spends any part thereof hi gaming," in the 44th section of said act, shall read " or shah 1 spend any part thereof in gaming ; " and that the words " with the senior register or," and the phrase " to be delivered to the register," in the 47th section of said act, be stricken out. SECT. 3. And be it further enacted, That the register in bankruptcy shall have power to administer oaths in all cases and in relation to all matters in which oaths may be administered by commissioners of the circuit courts of the United States, and such commissioners may take proof of debts in bankruptcy in all cases, subject to the revision of such proofs by the register and by the court, according to the provisions of said act. Approved July 25, 1868. The various forms required are not given heTe, because they have been issued on the authority of the Supreme Court of the United States, and are uniform throughout the States, and are supplied by the Registers of bankruptcy to every applicant ; and to one of them every person desiring to become a bankrupt, and every person desir- ing to bring another person into bankruptcy, must apply. 298 BANKRUPTCY. In the -District Court of the United States for the Southern Dis- trict of New York, the Hon. Judge Blatchford has established cer- tain rules for practice under the Bankrupt Law. Resting on his high authority, and the usage of the principal centre of business in the country, these rules will doubtless be regarded everywhere ; and the practice in all the States will be in substantial conformity .with them. These rules are as follows : Rules in Bankruptcy. Rule 1. In voluntary bankruptcy, where the petition states that the debtor, whether an individual, a copartnership, a corporation, or a joint-stock company, has resided or carried on business for the six months next immediately preceding the time of filing the petition, or for the longest period during such six months, in the city and county of New York, the petitions shall be referred, in rotation, by Form No. 4, to the several registers, appointed in the six Congressional districts therein, commencing with the fourth, and ending with the ninth, in the order of the times of filing such petitions ; and where in any other county, the petition shall be referred, by Form No. 4, to the register appointed in the Congressional district in which such county is embraced. A petition may be otherwise referred for special reasons, or in cases not herein provided for. In involuntary bankruptcy, the regis- ter will be designated with reference to the special circumstances of each case. The order, Form No. 4, designating the register to act upon the petition, in vol- untary bankruptcy, shall, in the case of a register in any district in the city and county of New York, specify as the place where the register shall act upon the matters arising under the case, and the warrant, Form No. 59, in involuntary bank- ruptcy, shall, in a like case, specify as the place where the meeting of the creditors will be held, the office of the register as designated by him, by a writing filed with the clerk. In the case of a register in any district other than one in the city and county of New York, the order, Form No. 4, in voluntary bankruptcy, shall specify as the place where the register shall act upon the matters arising under the case, an office of the register as designated by him in like manner, in the county in which is the place of residence of the petitioner, or the place of business of the co- partnership, corporation, or joint-stock company, as set forth in the petition, having due regard always to the proximity and convenience of such office to such place of residence or place of business ; and, in a like case, in the warrant, Form No. 59, in involuntary bankruptcy, the place will be designated with reference to the special circumstances of the case. The day named in the order, Form No. 4, for the attendance of the bankrupt before the register, in voluntary bankruptcy, and the day named in the warrant, Form No. 59, for the meeting of creditors, in involuntary bankruptcy, will be fixed with reference to the convenient and speedy progress of the case. KTJLES IK BANKRUPTCY. 299 Every register in a district other than the city and county of New York shall, by a writing filed with the clerk, designate the days on which he will attend at a place or places within each county in his district. Every register may, in any case referred to him, fix the times -when he will act upon the several matters arising under such case, other than the attendance of the bankrupt, as fixed by the order, Form No. 4, and the meeting of creditors as fixed by the warrant, Form No. 59 ; but the register shall not, without leave of the court, be at liberty to change the place specified in the order, Form No. 4, or to act upon the matters arising under a case in involuntary bankruptcy at any other place than the one specified in the warrant, Form No. 59, as the place for the meeting of creditors. Rule 2. The adjudication of bankruptcy, Form No. 58, shall contain a pro- vision that the case be referred to one of the registers, naming him, to take such proceedings thereon as are required by the act. Rule 3. Whenever a petition is referred to a register in a voluntary case, and whenever, in an involuntary case, an order is made on an adjudication of bank- ruptcy, referring the case to a register, the clerk at the time he sends or delivers to the register a copy of the order of reference, shall pay to him the sum of fifteen dollars out of the fifty dollars deposited with the clerk, under Section 47 of the act, the same to be applied to the payment of such fees of the register as are chargeable to the petitioner making the deposit. Whenever by a return made to the court, under oath, by the register, of the fees so chargeable for services ren- dered by him, it shall appear that the aggregate amount of such fees exceeds the aggregate payments made thereon to the register out of the fifty dollars, the clerk shall, if requested by the register, make further payments to him thereon to the amount of such fees, until the fifty dollars shall all of it be paid out, and thereafter the fees of the register which are chargeable to such petitioner shall be paid or secured in like manner with the other fees provided for by Rule 29, of the " Gen- eral Orders in Bankruptcy." The foregoing provisions of this rule shall not apply to a case of voluntary bankruptcy, where under Rule 30 of the " General Orders in Bankruptcy," the judge shall direct that the fees and costs in the case shall not exceed the sum re- quired by the act to be deposited with the clerk ; but, in every such case, such of the disbursements paid out by the register and marshal for the purposes specified in Rule 12 of the " General Orders in Bankruptcy," and returned by them under oath, under said Rule 12, as are chargeable to the petitioning debtor, shall be re- funded to them severally by the clerk out of such sum ; and the clerk, marshal, and register shall perform the duties required of them by such petitioning debtor with- out first requiring payment or security for their fees, subject to the application by the court to such fees, of so much of such sum as shall remain after refunding such disbursements. Ordered, That Rule 3 of the Rules, Orders, and Regulations, in Bankruptcy, 21 300 BANKRUPTCY. prescribed by this court, June 22, 1867, be amended by striking out the word "fifteen," and inserting the word "twenty-five," and by striking out the words " under oath," where they first occur in said rule. Passed July 1, A.D. 1867. Rule 4. The register shall, under Rule 7 of the " General Orders in Bank- ruptcy," examine the duplicate copy of the petition and schedules specified in Form No. 4, and such duplicate copy shall either be a copy of such filed original, cer- tified by the clerk under the seal of the court, or else a duplicate original, signed and verified in like manner with the original petition and schedules filed with the clerk, and shown by evidence satisfactory to the register to be such duplicate origi- nal ; and the certificate of the register, required by said Rule 7, as to the correct- ness in form of the petition and schedules, shall be made in writing, and be signed by him, on the duplicate copy which he so examines ; and he shall not issue any warrant under Form No. 6, until he shall have so made a certificate, after such ex- amination, that the petition and schedules are correct in form. No such certificate shall be made unless the whole eleven of the sheets composing schedules A and B, in Form No. 1, form part of the schedules to the petition. Rule 5. The warrant issued under Section 11 or Section 42 of the act, ac- cording to Form No. 6 or Form No. 59, shall specify two, if there be two, and if not, then one of the newspapers named in Rule 21, published in the county stated in the petition as the one in which the debtor, whether an individual, a copartner- ship, a corporation, or a joint-stock company, has resided or carried on business for the six months next immediately preceding the time of filing the petition, or for the longest period during-such six months, the selection of such newspapers to be made by the petitioner, or his attorney, or, in default thereof, by the register to whom the petition or case is referred; but in the city and county of New York, one of them shall be a morning paper, and one an evening paper. The notices to be published in pursuance of the warrant shall be published twice in each newspaper selected. The warrant shall designate the creditors on whom personal service is to be made, and notice shall be served by mail upon all creditors other than those so designated. No creditor resident out of this district shall be designated for per- sonal service. Whenever a debtor shall furnish, at his own expense, to the marshal, printed copies of the notices required to be served by the warrant, no fee shall be allowed to the marshal for copying into the notices the names and places of residences of the creditors, and the amounts of then* debts. The warrant, Form No. 6, shall oe regarded as process under Rule 2 of the " General Orders in Bankruptcy," and such warrant shall, before it is issued to the marshal, in addition to being signed by the clerk, and sealed with the seal of the court, be signed by the judge or the register at the foot thereof, in the follow- ing form, with the date : " Issued by me, 18 , District Judge [or Register in Bankruptcy."'] RULES IN BANKBUPTCY. 301 Whenever the order Form No. 10 is used by a register, the conclusion of said Form may be varied so that the order may be attested or signed by the register alone. Ordered, That Rule 5 of said Rules, Orders, and Regulations, be amended by striking out the words "by the petitioner or his attorney, or in default thereof;" and also by striking out the words " but in the city and county of New York, one of them shall be a morning paper, and one an evening paper." Passed July 1, A.D. 1867. Rule 6. All proofs of debt which shall be made and verified prior to the elec- tion or appointment of an assignee shall be delivered or sent to the register to whom the case is referred. If the register entertains doubts of the validity of any claim, or of the right of a creditor to prove it, and is of opinion that such validity or right ought to be investigated by the assignee, he may postpone the proof of the claim until the assignee is chosen. Rule 7. In case no choice of an assignee is made by the creditors at then first meeting, or in case an assignee, chosen by the creditors, fails within five day. to express in writing his acceptance of the trust, or in case of a vacancy in the office of an assignee, caused by his removal, resignation, death, or other cause, Johr Sedgwick, Esquire, of the city of New York, counsellor at law, will be appointed assignee where the judge is required by the act to appoint the assignee, and also where the assignee is appointable by the register, subject to the approval of the judge. In special cases, vacancies in the office of assignee will be filled by an election by the creditors. Ordered, That Rule 7 of said Rules, Orders, and Regulations, be amended by striking out the words " also where the assignee is appointable by the register sub- ject to the approval of the judge," and inserting instead the following : " where the said John Sedgwick shall be appointed by any register, such appointment is hereby approved by the judge ; " and also by striking out the last sentence, and inserting instead the following : " In special cases, vacancies in the office of as- signee will be filled by an election by the creditors, or by the appointment of an assignee other than the one above named." Passed July 1, A.D. 1867. Rule 8. Under Rule 9 of the " General Orders in Bankruptcy," an assignee shall notify the register of his acceptance or rejection of the trust, and the register shall immediately, on receiving such notice, report it to the clerk of the court. Rule 9. Every assignee shall, immediately on receiving an assignment of an estate in bankruptcy, send or deliver such assignment to the clerk of the court, who shall make a true copy of it, and certify such copy under his hand and the seal of the court ; and such certified copy shall then be placed by him on file, and the origi- nal assignment shall be returned to the assignee. 302 BANKRUPTCY. Rule 10. Notice of the appointment of an assignee shall be given by publi- cation once a week for three successive weeks in two of the newspapers named in Rule 21, at least one of which shall be a newspaper published in the city and county of New York ; such newspapers to be selected by the assignee with due regard to the requirements of Section 14 of the act. Ordered, That Rule 10 of said Rules, Orders, and Regulations, be amended by striking out the word " assignee," where it last occurs, and inserting instead tha word " register." Passed July 1, A.D. 1867. Rule 11. Notices of sale by* an assignee under Rule 21 of the " General Or- ders in Bankruptcy," shall be advertised hi two, if there be two, and if not, then in one of the newspapers named in Rule 21, published hi the county where the sale is to take place, the selection of such newspapers to be made by the assignee ; but in the city and county of New York, one of them shall be a morning paper, and one an evening paper. Ordered, That Rule 11 of said Rules, Orders, and Regulations, be amended by striking out the words " assignee ; but in the city and county of New York, one of them shall be a morning paper, and one an evening paper," and inserting instead the word " register." Passed July 1, A.D. 1867. Rule 12. The notice to creditors of dividends or meetings required by the 17th, 27th, and 28th Sections of the act, shall be such as is provided for by the order contained in Form No. 28; and the assignee shall select one newspaper, in which the notice shall be published, from among the newspapers specified in Rule 21. Ordered, That Rule 12 of said Rules, Orders, and Regulations, be amended by striking out the word " assignee," and inserting instead the word " register." Passed July 1, A.D. 1867. Rule 13. The list of debts provided for by Section 23 of the act shall be made and certified by the register to whom the petition or case is referred, and he shall place thereon all debts which are duly proved. Rule 14. The assignee shall, under Section 27 of the act, produce and file vouchers for all payments made by him, except as to items hi regard to which the court shall, for reasonable cause, dispense with vouchers. Rule 15. The notice by the assignee, under Section 28 of the act, of the filing of his account, and of his application for a settlement and discharge, shall be given by him by sending written or printed notices by mail, prepaid, of such filing, and of the tune of such application, to all known creditors of the bank- rupt. EULES IN BANKRUPTCY. 303 Hule 16. All questions for trial or hearing, under Sections 31 and 34 of tha act, shall be tried or heard at a stated session of the court, on four days' notice of trial or hearing, to be served by either party upon the other party, and upon the clerk ; and a calendar of the same shall be made. Rule 16 of this Court in Bankruptcy is hereby amended so as to read as fol- lows : All questions for trial or hearing under Sections 31 and 34 of the act, and all questions under Section 41 of the act, which are not ordered to be tried by a jury, shall be brought on upon testimony taken before a register, a commissioner, or a referee, and shall be tried or heard by the court, and will be so tried or heard on any Saturday in term, at a stated session of the court, on four days' notice of trial or hearing, to be served by either party upon the other party, and upon the clerk, and a separate calendar of the same shall be made by the clerk for every Saturday in the term, on which the cases shall be arranged in the order in which the same are numbered, according to General Order No. 1. Passed Feb. 21, A.D. 1868. Hule 17. The application, under Section 34 of the act, to set aside and an- nul a discharge, shall be verified by the oath or affirmation of the applicant, and the answer of the bankrupt to the application shall answer specifically the allega- tions of the application, and shall be verified in like manner. Hule 18. The demand in writing for a trial by jury, under Section 41 of the act, shall be signed by the debtor or his attorney. Hule 19. All issues, questions, points, and matters stated in writing, under Rule 11 of the " General Orders in Bankruptcy," or under the 4th Section or the 6th Section of the act, or according to Form No. 50, and adjourned into court for decision, or stated in a special case for the opinion of the court, shall be certified to the judge by the register by a certificate, which shall also state briefly the opinion of the register on the issue, question, point or matter, and shall be delivered or sent to the clerk ;. and no oral or written argument shall be allowed on any such issue or question, unless by special leave of the court. Hule 20. In pursuance of Rule 28 of the " General Orders in Bankruptcy," the following National Banks in this district are designated as those in which all moneys received by assignees or paid into court in the course of any procee;lings in bankruptcy shall be deposited, namely : The list of banks is here omitted, as is the list of newspapers in the next rule ; as they must necessarily be different in the different States. All moneys received by the clerk of the court on account of any bankrupt estate, or paid into court in the course of any proceedings hi bankruptcy (except the sums 304 BANKETJPTCT. deposited with the clerk under Section 47 of the act), shall be deposited in said bank in the city and county of New York ; and all sums received by an assignee on account of any estate of which he is assignee shall be deposited in such one of said banks as he shall select by a writing to be signed by him, and filed with the clerk. The check, or warrant, for drawing moneys deposited by the clerk, shall be signed by the clerk, and countersigned by the judge. The check, or warrant, for drawing moneys deposited by an assignee, shall be signed by him, and counter- signed by the register designated to act in the case of the estate on account of which such moneys were deposited. Rule 2L The following newspapers are designated as those in which all pub- lications required by the act, or the " General Orders in Bankruptcy," or these rules, may be made, namely : (the names of the newspapers are here omitted.) The marshal and the clerk, and every register or assignee, when required to pub- lish any notice or advertisement, shall preserve and return to the court a copy, cut from each newspaper hi which it is published, of each notice and advertisement as published, with a certificate as to the particulars of the publishing, showing that the required publication has been made. Rule 22. In case of the absence of the judge at the time and place noticed or appointed for any hearing or proceeding before him in bankruptcy, or if the mat- ter then fails to be called or acted on, the same shall be deemed continued, without other order, to the next sitting of the court thereafter, at which time the like pro- ceedings may be had thereupon as if first noticed or appointed for such day. Rule 23. If the marshal shall, under Rule 13 of the "General Orders in Bankruptcy," appoint special deputies to act as messengers, he shall, as far as pos- sible, designate one or more of such special deputies to be attached to the office of each register, for the purpose of causing the notices to be published and served which are specified in the warrants issued in the cases referred to such register. Rule 24. All notices served or sent by mail by the marshal, the. clerk, or an assignee, shall be so written or printed and folded, that the direction, postage-stamp, and post-mark shall be upon the notice itself, and not upon an envelope or other separate piece of paper. Rule 25. Special cases not comprehended within the foregoing Rules, or the " General Orders in Bankruptcy," or the Forms, shall be submitted to the judge. 305 CHAPTER XXIY. 'JL'JdUJ UtA^W OF SECTION L WHAT IS MEANT BY THE LAW OF PLACE. IP either of the parties to a contract is not at home, or if both are not at the same home, when they enter into the contract, or if it is to be executed abroad, or if it comes into litigation before a foreign tribunal, then the rights and the obligations of the parties may be affected either by the law of the place of the contract, or by the law of the domicil or home of a party, or by the law of the place where the thing is situated to which the contract refers, or by the law of the tribunal before which the case is litigated. All of these are commonly included in the Latin phrase lex loci, or, as the phrase is translated, the Law of Place. It is obvious that this law must be of great importance wherever citizens of distinct nations have much commercial intercourse with each other. In this country it has an especial and very great im- portance, from the circumstance that, while the citizens of tbe whole country have at least as much business connection with each other as those of any other nation, our country is composed of thirty-six separate and independent sovereignties, which are, for most com- mercial purposes, regarded by the law as foreign to each other. SECTION n. THE GENERAL PRINCIPLES OF THE 11A.W OF THE general principles upon which the law of place depends are four. First, every sovereignty can bind, by its laws, all persons and 306 THE LAW OB PLACE. all things within the limits of the State. Second, no law has any force or authority of its own, beyond those limits. Third, by the comity or courtesy of nations, aided in our case, as to the several States, by the peculiar and close relation between the States, and for some pur- poses by a constitutional provision, the laws of foreign States have a qualified force and influence. The fourth rule is perhaps that of the most frequent application. It is, that a contract which is not valid where it is made is valid nowhere else ; and one which is valid where it is made is valid everywhere. Thus a contract made in Massachusetts, and there void because usurious, was sued in New Hampshire and held to be void there, although the law of New Hampshire would not have avoided it if it had been made there. But courts do not take notice of foreign revenue laws, and will enforce foreign contracts made in violation of them. If contracts are made only orally, where by law they should be in writing, they cannot be enforced elsewhere where writing is not required ; but if made orally where writing is not re- quired, they can be enforced in other countries where such contracts should be in writing. The rule, that a contract which is valid where it is made is valid everywhere, is applicable to contracts of marriage. As contracts relate either to movables or immovables, or, to use the phraseology of our own law, to personal property or to real property, the following distinction is taken. If the contract refers to personal property (which never has a fixed place, and is there- fore called, in some systems of law, movable property), the place of the contract governs by its law the construction and effect of the contract. But if the contract refers to real property, it is construed and applied by the law of the place where that real property is situated, without reference, so far as the title is concerned, to the law of the place of the contract. Hence, the title to land can only be given or received as the law of the place where the land is situated requires and determines. And it has been said that the same rulo may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, manufacturing stock, railroad shares, and other incorporeal property, owing its existence to, or regulated by, pecu- THE PLACE OF THE CONTRACT. 307 liar local laws ; and therefore no effectual transfer can be made of such property, except in the manner prescribed by the local regu- lations. As to the capacity of a person to enter into contracts, it is undoubt- edly the general rule, that this is determined by the law of his domicil ; and whatever that permits him to do he may do anywhere. SECTION IIL THE PLACE OF THE CONTRACT. A CONTRACT is made when both parties agree to it, and not before. It is therefore made where both parties agree to it, if this is one place. But if the contract be made by letter, or by separate signa- tures to an instrument, the contract is then made where that signature is put to it, or that letter is written, which in fact com- pletes the contract. But this rule is subject to a very important qualification, when the contract is made in one place, and is to be performed in another place ; for then, in general, the law of this last place must determine the force and effect of the contract, for the obvious and strong reason, that parties who agreed that a certain thing should be done in a certain place intended that a thing should be done there, which was lawful there, and therefore bargained with reference to the laws of the place, not in which they stood, but in which they were to act. This principle has been applied to an antenuptial contract, and it was held, that when parties marry in reference to the laws of another country as their intended dornicil, the law of the intended domicil governs the construction of their marriage-contract as to the rights of personal property. But, for many commercial transactions, both of these rules seem to be in force ; or rather to be blended in such a way as to give the parties an option as to what shall be the place of the contract, and what the rule of law which shall apply to it. Thus, a note written in New York, and expressly payable in New York, is, to all intents and purposes, a New- York note ; and if more than seven per cent interest was promised, it would be usurious, whatever was the domicil of the parties. If made in New York, and no place of payment is exp i-'j?sriVO. SECTION I. TUB OWNERSHIP AND TRANSFER OF SHIPS. THE Law of Shipping may be considered under three divisions. First, as to ownership and transfer of ships. Second, as to the em- ployment of ships as carriers of goods, or of passengers, or both. Third, as to the navigation of ships. I begin with the first topic. Ships are personal property ; or, in other words, a ship is a chat- tel ; and yet its ownership and transfer are regulated in this country by rules quite analogous to those which apply to real property. The Constitution of the United States gives to Congress the power to enact laws for the regulation of commerce. In execution of this power, acts were passed in 1792, and immediately after, which fol- lowed substantially the Registry and Navigation Laws of England, some of which had been in force about a century and a half. The English laws were intended to secure English commerce to English men and English ships ; and it was supposed that the commercial prosperity of England was in a great measure due to them. To secure the evidence of the American character of a vessel, the statute of 1792 provides for an exact system of registration in the custom-house. There is no requirement of registration. The law does not say that a ship shall or must be registered, but that certain 312 THE LAW OP SHIPPING ships or vessels may be ; and, if they are registered, they shall ha^e certain privileges. And the disadvantage of being without registry operates as effectually to make registration universal, as a positive requirement with a heavy penalty could do. The ships which may be registered are those already registered, 31 December, 1792, under the act of September, 1789 ; those built within the United States, and owned wholly by citizens thereof ; and those captured and condemned as prizes, or adjudged forfeited by violation of law, if at the time of registry they are owned wholly by citizens of this country. No ship can be registered, if an owner or part-owner usually reside abroad, although he is a citizen, unless he is a consul of the United States, or agent for, and a partner in, a mercantile house established and doing business here ; nor if the master be not a citizen of the United States ; nor if the owner or part-owner be a naturalized citizen, and reside in the country whence he came more than a year, or in any foreign country more than two years, unless he be consul or public agent of the United States. But a ship which has lost the benefits of registry by the non-residence of an owner, in such a case may be registered anew if "she become the property of a resident citizen, by bond fide pur- chase ; nor can a ship be registered which has been, at any time, the property of an alien, unless she becomes the property of the original owner or his representative. Sometimes Congress, by special acts, permits the registration, as an American ship, of a vessel which has become, by purchase, American property. If a registered American ship be sold or trans- ferred, in whole or in part, to an alien, the certificate of registry must be delivered up, or the vessel is forfeited ; but if, in case of a sale in part, it can be shown that any owner of a part not so sold was ignorant of the sale, his share shall not be subject to such for- feiture. As soon as a registered vessel arrives from a foreign port, her documents must be deposited with the collector of the port cf arrival, and the owner, or, if he does not reside within the dis- trict, the master, must make oath that the register contains the names of all persons who are at that time owners of the ship, and at the same time report any transfer of the ship, or of any part, that has been made within his knowledge since the registry; and also THE OWNERSHIP AND TRANSFER OP SHIPS. 313 declare that no foreigner has any interest in the ship. If a register be issued fraudulently, or with the knowledge of the owners, for a ship not entitled to one, the register is not only void, but the ship is forfeited. If a new register is issued, the old one must be given up ; but where there is a sale by process of law, and the former owners withhold the register, the Secretary of the Treasury may authorize the collector to issue a new one. If a ship be transferred while at sea, or abroad, the old register must be given up, and all the requirements of law, as to registry, &c., must be complied with, within three days after her arrival at the home port. Important exclusive privileges have been granted to regis- tered vessels of the United States. By the statute of 1817, it is provided, that no merchandise shall be brought from any foreign country to this, except in American vessels, or in vessels belonging to that'country of which the merchandise is the growth. Also, that no merchandise shall be carried from port to port in the United States, by any foreign vessel, unless it formed a part of its original cargo. A ship that is of twenty tons' burden, to be employed in tho fisheries, or in the coasting-trade, need not be registered, but must be enrolled and licensed accordingly. If under twenty tons' bur- den, she need only be licensed. If licensed for the fisheries, she may visit and return from foreign ports, having stated her intention of doing so, and being permitted by the collector. And if regis- tered, she may engage in the coasting-trade or fishery, and if licensed and enrolled, she may become a registered ship, subject to the regu- lations provided for such cases. A ship that is neither registered nor licensed and enrolled can sail on no voyage with the privilege or protection of a national char- acter or national papers. If she engages in foreign trade, or the coasting-trade, or fisheries, she is liable to forfeiture ; and if she have foreign goods on board, must at all events pay the tonnage- duties leviable on foreign ships. In these days, no ship engaged in honest business, and belonging to a civilized people, is met with on the ocean, without having the regular papers which attest her na- tionality, unless she has lost them by eome accident. \ 314 THE LAW OF SHIPPING. SECTION H. THE TRANSFER OF PROPERTY IN A SHIP THE Statute of Registration provides, that, " in every case of sale or transfer, there shall be some instrument in writing, in the nature of a bill of sale, which shall recite at length the said certificate ; otherwise the said ship or vessel shall be incapable of being registered anew." It follows, therefore, that a merely oral transfer, although for valuable consideration, and followed by possession, gives the transferee no right to claim a new register setting forth his ownership. But this is all. There is nothing in this statute to prevent the property from passing to and vesting in such transferee. It is, however, unquestionably a principle of the maritime law generally, that property in a ship should pass by a written instru- ment. And as this principle seems to l|fi adopted by the statute, the courts have sometimes almost denied the validity of a merely paro] transfer. The weight of authority and of reason is, however, undoubtedly in favor of the conclusion stated by Judge Story, thai " the registry acts have not, in any degree, changed the common law as to the manner of transferring this species of property." It would follow, therefore, that such transfer would be valid, and would pass the property. In 1850, Congress, however, passed an act, " to provide for record- ing the conveyances of vessels, and for other purposes." By this statute it .was provided "that no bill of sale, mortgage, hypotheca- tion, or conveyance of any vessel or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or con- veyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled." Then follows an ex- ception in favor of liens by bottomry, and in subsequent sections are provisions for recording by the collector, and giving certifi- cates, STATE OP COUNTY. I, a Notary Public in and for the in the County of and State of , do hereby certify, that personally known to me as the same person whose name subscribed to the annexed instrument of writing, appeared before me this day in person, and acknowledged that signed, sealed and delivered the said instrument or writing as free and voluntary act, for the uses and purposes therein set forth. Given under my hand and notarial seal this day of A.D. 186 Notary Public, (92.) Mortgage of a Vessel. Know all Men by these Presents, That I (or we, giving the names and residence of all the mortgagors) am (or are) held and firmly bound unto (the names and residence of the mortgagees) in the just and full sum of dollars, lawful money of the United States of America, to be paid to the said or his (or their) executors, administrators or assigns : for which payment well and truly to be made, I bind 350 THE LAW OF SHIPPING. myself, my heirs, executors and administrators firmly by these presents. Dated at this day of in the year one thousand eight hundred and Whereas, (name oftiie mortgagee) has this day lent and advanced unto the said (name of the mortgagor) the sum of dollars on the body, tackle and appurtenances of the or vessel called the of the burden of tons, or thereabouts; the said (name of the mortgagor) being the (owner) of the same. Now the Condition of this Obligation is such, That if the said (name of the mortgagor) shall pay or cause to be paid to the said (name of the mortgagee) the sum of dollars (the amount loaned), and interest thereon on or before the day of in the year 18 then this obligation to be void ; otherwise, to remain in full force and virtue. And in consideration of and as security for said loan as aforesaid, the said (vessel, or ship, or steamer, a* it may be) is by these presents assigned, pledged, mortgaged, set over and conveyed to the said heirs and assigns ; the certificate of the enrolment of which vessel is as follows, viz. : (Enrolment as in the previous form of a Bill of Sale of a Vessel.) It being Mutually Understood and Agreed, That in case the amount of said loan and interest, or any part thereof, according to the terms of these presents, shall remain due and unpaid to said (name of mortgagee') after the expira- tion of the said (name of mortgagee} may take possession of said and appurtenances, and sell the same at public auction, in order to satisfy the amount then due, without any proceedings in court or other- wise, for the purpose of authorizing such sale, and thereupon may execute and deliver a sufficient bill of sale to transfer completely to any purchaser or purchasers all title and property in and to the said and appurtenances, to the said (name of mortgagor) as (owner) thereof, now belonging. The said (name of the mortgagee) thereupon to account to the said (name of the mortgagor) for any surplus of such sale, after paying all charges and expenses. And in case of such sale as aforesaid, the said (name of the mortgagor) ex- ecutors, administrators or assigns, shall, whenever thereto requested, make, execute and deliver to such purchaser or purchasers, another bill of sale of said and appurtenances, in which the enrolment shall be recited as above, for the transferring completely to said purchaser or purchasers all the (right), (interest) and (claim), of said executors, administrators OT assigns, as (owner) of said And in default of the prompt execution and delivery of such other bill of sale to such purchaser or purchasers, by the gaid when thereto requested, the said ia hereby constituted and appointed the legal attorney of the said COMMERCIAL FORMS. 351 for the purpose of making, executing and delivering such bill of sale , and the said hereby ratifies and confirms the act of the said as attorney for said purpose. And it is hereby further Agreed, That insurance shall be made at some office in on the said for the security of the said (name of the mortgagee) to an amount not less than the sum loaned as aforesaid, and the said (name of the mortgagee') is hereby authorized to procure such insurance, at the expense of the said (name of the mortgagor') if not seasonably obtained by him. (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of ( Witness.) STATE OP ) [-88. COUNTY OF ) On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. (93.) A Charter -I* arty* This Charter-Party, Made and concluded upon in the day of in the year one thousand eight hundred and between (name of the owner) owner of the of of the burden of tons or thereabouts, register measurement, now lying in the harbor of of the first part, and (name of the hirer) of the second part, witnesseth, that the said part of the first part, for and in consideration of the covenants and agree- ments hereinafter mentioned, to be kept and performed by the said part of the second part, do covenant and agree on the freighting and chartering of the said vessel unto the said part of the second part, for the voyage from the port of on the terms following ; that is to say, First. The said part of the first part do engage that the said vessel in and during the oaid voyage shall be kept tight, stanch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. Second. The said part of the first part do further engage that the whole of said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew, and of the sails, cables, and provisions) shall be at the sole use and disposal of the said part of the second part during the voyage 352 THE LAW OF SHIPPING. aforesaid ; and that no goods or merchandise whatever shall be laden on board, otherwise than from the said part of the second part, or agent, without consent, on pain of forfeiture of the amount of freight agreed upon for the same. Third. The said part of the first part do further engage to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and aerchandise as the said part of the second part, or agents, may think proper to ship. And the said part of the second part, for and in consideration of the covenarts and agreements to be kept and performed by the said part of the first part, do covenant and agree with the said part of the first part, to charter and hire the said vessel as aforesaid, on the terms following, that is to say : First. The said part of the second part do engage to provide and furnish t 89. COUNTY. ) I, inland for said county, in the State aforesaid, do hereby certify, that (the name of the releasor) personally known to me as the same person whose name is subscribed to the foregoing deed, appeared before me this day, in person, and acknowledged that he signed, sealed and delivered the said instrument of writing as his own free and voluntary act, for the uses and pur- poses therein set forth. Given under my hand and seal, this day of A.D. 18 (Signature.) (Seal.) (HI.) Deed, with Special Warranty against tlie Grantor only. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and sixty- between (tha name of the grantor) and (name of the wife of grantor) wife of the said (name of the grantor) of the County of and State of 450 DEEDS CONVEYING LAND. parties of the first part, and (name and residence of the grantee) part)- of the second part : Witnesseth, that the said parties of the first part, for and in con- sideration of the sum of to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents, ^rant, bargain, and sell unto the said party of the second part, and his heirs and assigns, the following-described tract or parcel of land, situate in (here describe carefully the lan^ or premises granted, as directed in Form 107) Together v/ith all and singular the tenements, hereditaments, and appurte- nances thereto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim, and demand whatso- ever, as well in law as in equity, of the said parties of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurte- nances . To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part and his heirs and assigns forever. And the said the said parties of the first part, hereby expressly waive, release, and relinquish unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, hi and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. And the said parties of the first part, for themselves and their heirs, executors, and administrators, do hereby covenant, promise, and agree to and with the said party of the second part, his heirs and assigns, that the said premises against the claim of all persons, claiming or to claim by, through or under him only, he will forever warrant and defend. In Testimony "Whereof; The said parties of the first part have hereunto Bet then* hands and seals the day and year first above written. (Signature of grantor.) (Seal.) (Signature of wife of grantor.) (Seal.) Sealed and Delivered in Presence of STATE OF , ) > 88. COUNTY. ) I, in and for said county, hi the State aforesaid, do hereoy certify that (name of the grantor) personally known to me as the same person whose name is subscribed to the annexed deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of the grantor's wife) wife of the said (name of the grantor) having been by me examined, separate and apart and out of the hear- FOBMS OF DEEDS. 451 ing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her right under the Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and seal, this day of A.D. 186 (Signature.) (Seal.) (112.) Quit-Claim Deed. Long Form Homestead Waiver. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and sixty- betw'een (name t residence, and occupation of the grantor, and name of the grantor's wife) parties of the first part, and (name, residence, and occupation of tiie grantee) party of the second part, Witncsseth, That the said party of the first part, for and in consideration of dollars in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, forever released and discharged therefrom, have remised, released, sold, conveyed, and quit claimed, and by these presents do remise, release, sell, convey, and quit claim, unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, claim, and demand which the said party of the first part have in and to the following-described lot , piece , or parcel of land, to wit (here describe carefully the land or premises granted, as directed in Form 107) To Have and to Hold the Same, Together with all and singular the appurtenances and privileges thereunto belonging, or in any wise thereunto apper- taining ; and all the estate, right, title, interest, and claim whatever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns forever. And the said parties of the first part hereby expressly waive, release, and felinquish unto the said party of the second part, his heirs, executors, administra- tors, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. And the said parties of the first part, for themselves and their heirs, executors, and administrators, do covenant, promise, and agree, to and with the said party of the second part, their heirs, executors, administrators, and assigns, that they have not made, done, committed, executed, or sutl'ered any act or acts, thing or 452 DEEDS CONVEYING LAND. things, whatsoever, whereby, or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time here- after shall or may be, impeached, charged, or incumbered, in any way or manner whatsoever. In Witness Whereof, The said party of the first part hereunto set their hands and seals the day and year above written. (Signature of grantor.) (Seal.) (Signature of wife of grantor.) (Seal.) Signed, Sealed and Delivered in Presence of STATE OF , } [-88. COUNTY. ) I hi and for said county, and the State aforesaid, do hereby certify, that (name of Hie grantor) being personally known to me as the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day, hi person, and acknowledged that he signed, sealed, and delivered thfe said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of the wife) wife of the said (name of the grantor) having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the Homestead Laws of this State, acknowl- edged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.D, 186 . (Signature.) (Seal.) (113.) Deed, with Covenant against Grantor, without Release of Home- stead or Dower. This Indenture, Made the day of in the year one thousand eight hundred and between (name of the grantor) (name of the grantee) of the second part, witnesscth, That the said party of the first part, for and in consideration of the sum of lawful money of the United States of America, to him in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, bar- POEMS OF DEEDS. 453 gained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107) Together with all and singular the tenements, hereditaments, and appurte- nances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, aad profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatso- ever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurte- nances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, and his heirs and assigns forever. And the said (name of the grantor) for himself and his heirs, executors, and administrators, does hereby covenant, promise, and agree to and with the said party of the second part, and his heirs and assigns, that he has not made, done, com- mitted, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any tune hereafter shall or may be, impeached, charged, or incumbered in any manner or way whatsoever. In Witness Whereof, The said party of the first part has Hereunto set his hand and seal the day and year first above written. (Signature.) (Seal.) Sealed and Delivered in the Presence of STATE OP , ) [-88. COUNTY. ) I in and for said county, and the State aforesaid, do hereby certify, that (name of the grantor) being personally known to me as the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day, hi person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal, this day of A.D. 186 . (Signature.) (Seal.) (114.) Separate Eclinquislimcnt of Homestead and Dower in Land sold under Execution. Know all Men by these Presents, That we (name and residence of the debtor) and (name of his tvife) wife of the said of the County of and State of , parties of 454 DEEDS CONVEYING LAND. the first pait, for the sum of one dollar to us paid by (name of the purchaser) of the County of and State of party of the second part, the receipt whereof is hereby acknowledged, do hereby agree and con- Bent to let the said party of the second part levy and sell, under a certain execution, hi favor of them, the said party of the second part, and against (name of the creditor, or the defendant in the suit in which the execution issued) now in the hands of the sheriff of the County of and State of , and dated the day of A.D. 186 , the following-described tract of land, situated in the County of and State of , to wit (here describe carefully the land or premises granted, as directed in Form 107), (and being the same land heretofore held, used, and occupied by the said parties of the first part, as a homestead) hereby waiving, releasing, relinquishing, and surrendering to and in favor of said party of the second part, under the said levy and sale on said execution, all the right, title, claim, interest, and benefit which we, the said parties of the first part, and each of us, have in and to said premises, by virtue of any and all homestead-exemption laws, now or heretofore in force in the State of , and more especially " An Act to exempt Homesteads from. Sale on Execution," now in force in the State of . "Witness our hands and seals this the day of A.D. 186 . (Signature.') (Seal.) (Signature.) (Seal.) STATE OF ' BS. COUXTT. :I I in and for said county, in the State aforesaid, do hereby certify that personally known to me as the same persons whose names are subscribed to the annexed instrument, appeared before me this day hi person, and acknowledged that they signed, sealed, and de- livered the said instrument of writing as their free and voluntary act, for the uses and purposes therein set forth. And the said (the name of the wife) wife of the said having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, without compulsion of her said hus- band, and that she does not wish to retract the same. Given ui der my hand and seal this day of A.D. 186 . (Signature.) (Seal.) FORMS OF DEEDS. 455 (115.) Full Warrant]) Deed, by Indenture, without Release of Home- stead or Dower. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the grantor) party of the first part, and (name, resilience, and occupation of the grantee) party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, and his heirs, executors, and administrators, forever released and discharged from the same, by these presents, has granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey and confirm, unto the said part}' of the second part, and to his heirs and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107.) Together with all and singular the tenements, hereditaments "and appurte- nances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. And also all the estate, right, title, interest, property, possession, claim and demand what- soever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained and described premises, with the appur- tenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. And the said (name of the grantor) for himself and his heirs, executors, 4 and administrators, does covenant, grant and agree to and with the said party of the second part, and his heirs and assigns, that the said (name of the grantor) at the time of the sealing and delivery of these presents, is lawfully seised, in his own right, of a good, absolute, and indefeasible estate of inheritance, in fee simple, of, and in all and singular the above granted and described premises, with the appurtenances thereunto belonging, and has good right, full power, and lawful authority to grant, bargain, sell, and convey the same, in manner aforesaid : And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter, peaceably and quietly, have, hold, use, occupy, possess and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : and that the same now are free, clear, discharged and unincumbered, of and from all former and other grants, 456 DEEDS CONVEYING LAND tides, charges, estates, judgments, taxes, assessments and incrmbrances of what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, tide, or interest, of, in, or to the hereinbefore granted premises, by, from, under, or in trust for him or them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of die second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, ail and every such further and other lawful and reasonable acts, conveyances and assurances in the law, for the better and more effectually vesting and confirming die premises hereby granted or so intended to be, in and to die said party of the second part, his heirs and assigns, forever, as by die said party of die second part, his heirs or assigns, or his or their counsel learned in the law shall be reasonably advised or required : And the said party of the first part, for himself and his heirs, the above-described and hereby granted and released premises, and every part and parcel diereof, with die appurtenances, unto die said party of die second part, and his heirs and assigns, against die said party of the first part, and his heirs, and against all and every person and persons ( whomsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. In Witness Whereof \ die said party of the first part has hereunto set his hand and seal the day and year first above written. (Signature.) (Seal.) Sealed and Delivered in tiie Presence of STATE OF , > >88. COUNTY OF . ) On the day of in the year one thousand eight hundred and before me personally came (the name of the grantor), who is known to me to be the individual described in, and who exe- cuted, the foregoing instrument, and acknowledged diat he executed the same, as his own free act and deed. (Signature.) (110.) Warranty Deed, SJtort Form, with Release of Homestead and Dower. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name, residence, and occupation of grantor, and name of his wife) of the first pirt, am 1 (name, residence, and occupation of grantee) of the second FORMS OF DEEDS. 457 part, wituesseth, that the said party of the first part, in consideration of the sum of dollars in hand paid (the receipt whereof is hereby acknowledged), have granted, bargained and sold, and by these presents do grant, bargain, and sell, unto the said party of the second part, his heirs and assigns, all that piece or parcel of land situate in in the County of . and State of to wit (here describe carefully the land or premises granted, as directed in Form 107.) Together with the appurtenances thereunto belonging ; and all the estate, right, title, interest, claim, and demand of the said party of the first part herein. And the said (names of grantor and of his wife) parties of the first part, hereby expressly waive, release, relinquish, and convey unto the said party of the second part, and his heirs, executors, administrators and assigns, all right, title, claim, interest and benefit whatsoever, in and to the above-described premises, and each and every part thereof, which is given by or results from any and all laws of this State, pertaining to the exemption of homesteads. And the said (names of grantor and of his wife) for themselves and their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, and with his heirs and assigns, that the above-bargained premises in the quiet and peaceable possession of the said party of the second part, and his heirs and assigns, the said party of the first part shall and will warrant and forever defend. In Witness Whereof f The said parties of the first part have hereunto set their hands and seals the day and year first above written. (Signature of grantor.") (Seal.) (Signature of wife of grantor.) (Seal.) Signed, Sealed and Delivered in Presence of ; STATE OF ^ [-88. COUNTY.) I, in and for said county, do hereby certify that (name of grantor) who is personally known to me as the same person whose name is subscribed to the annexed deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing, as his free and voluntary act, for the uses and purposes therein set forth. And the said (name of the wife of grantor) wife of the said (name of the grantor) having been by me examined separate and apart, and jmt of the hearing of her husband, and the contents and meaning of the said instrument of writing been by me fully made known and explained to her, and she also by me having been fully informed of her rights, under the Homestead Laws of this Smte, acknowledged that she had freely and voluntarily executed the same, and nUin- quished her dower to the lands and tenements therein mentioned, and also all *er rights and advantages, under and by virtue of any and all laws of this State 458 DEEDS CONVEYING LAND. relating to the exemption of homesteads, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A..D. 186 . (Signature.) (Seal.) (117.) Warranty Deed, with Covenant against Nuisances, without Release of Homestead or Dower. Tliis Indenture, Made the day of in the year one thousand eight hundred and between (name, residence and occupation of the grantor) party of the first part, and (name, residence and occupation of the grantee) party of the second part, witnesseth, that the caid party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and administrators, forever released and discharged from the same, by these pres- ents, has granted, bargained, sold, aliened, remised, released, conveyed and con- firmed, and by these presents does grant, bargain, sell, alien, remise, release, con- vey and confirm, unto the said party of the second part, and to his heirs and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107.) Together with all and singular the tenements, hereditaments and appurte-" nances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof: And also all the estate, right, title, interest, property, possession, claim and demand what- soever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances : to have and to hold the above granted, bargained and described premises, with the appurte- nances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. And the said party of the first part, for himself and for his heirs, executors and administrators, does hereby covenant, grant and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the first part, at the time of the sealing and delivery of these presents, is lawfully seised in his own right of a good, absolute and indefeasible estate of inheritance, in fee simple, of, and in all and singular the above-granted and described premises, with the appurtenances to them belonging ; and has good right, full power, and lawful au- thority, to grant, bargain, sell, and convey the same, in manner aforesaid. And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, FORMS OF DEEDS. 459 and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : And that the same now are free, clear, discharged, and unincumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances of what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under or in trust for him or them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and rea- sonable acts, conveyances, and assurances hi the law, for the better and more effect- ually vesting and confirming the premises hereby granted, or so intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably advised or required: And the said party of the first part, for himself and for his heirs, the above-described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, and his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whom- soever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. And the said party of the second part, for himself and for his heirs and assigns does hereby covenant to and with the said party of the first part, and with his heirs, executors, and administrators, that neither the said party of the second part, nor his heirs or assigns, shall or will at any tune hereafter erect or permit upon any part of the said lot, any slaughter-house, smith-shop, forge, furnace, steam-engine, brass-foundry, nail or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink, or turpentine, or for the tanning, dressing, or preparing skins, hides, or leather, or any brewery, distillery, livery-stable, or buildings for any nox- ious or dangerous trade or business. In "Witness "Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. (Signature.) (Seat.) Sealed and Delivered in Presence of (Signature.) (Seal) STATE OF ) -88. COUNTY OF ) On this day of in the year one thousand eight hundred and before me personally came (the none 81 460 DEEDS CONVEYING LAND. of the party of (he first part, who is the grantor) who is known by me to be the indi- vidual described, and who executed the foregoing instrument, and then and there acknowledged that he executed the same as and for his own deed. (Signature.) (118.) Bond for a Deed. Know all Men by these Presents, That I (name of the obligor) of the County of and State of am held and firmly bound to (name of the obligee') of the County of and State of in the sum of dollars, to be paid to said (name of obligee) or his executors, administrators, or assigns, to the pay- ment whereof I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated the day of , A. D. 18 The Condition of this obligation is that if I the said (name of the obligor') upon payment of dollars, and interest thereon, as agreed and promised by said (name of the obligee") agreeably to his promissory note, dated 18 , and made payable as follows, to wit (here set forth the note. If there be no note from the obligee, omit this part) shall convey to said (name of the obligee) or his heirs, executors, or assigns, forever, the following- described real estate, situate, lying and being in the County of and State of to wit (here describe carefully the land or premises granted, as described in Form 107) deed or deeds in common form, duly executed and ac- knowledged, and in the mean time shall permit said (name of the obligee") to occupy and improve said premises for his own use, then this obligation shall be void, otherwise it shall remain hi full force. (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of STATE OF ) [-83. COUNTY OF ) Be it Remembered, That on this day of A.D. 18 , before the undersigned, a Notary Public (or other magistrate), within and for the County of aforesaid, personally came (name of the obligor) who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, as the obligor therein, and acknowledged the same to be his free act and deed, for the purposes therein men- tioned. In Testimony Whereof, I have hereunto set my hand and affixed my official seal at my office in the day and year first above written. (Signature.) (Seal) FORMS OF DEEDS. 461 (119.) Contract for Sale of Land, with Penal Obligation. Articles of Agreement, Made and concluded this day of A.D. 18 , between of the County of and State of of the one part, and of the County of and State of of the other part as follows : The said (name of the party of the first parf), for the consideration hereinafter mentioned, does for himself and for his heirs, covenant and agree with the said (name of the party of the second part) and his heirs and assigns, by these presents, that he the said party of the first part, shall and will, on or before the day of A.D. 18 , at the proper costs and charges of the said party of the first part (or of the second part if that is agreed), his heirs and assigns, by good and lawful deed or deeds, well and sufficiently grant, convey and assure unto the said party of the second part, his heirs and assigns, in fee simple, clear of all incumbrances, all that certain tract or parcel of land lying, being and situate in the County of State of , as follows, to wit (here describe carefully the land or premises granted, as directed in Form 107.) In Consideration Whereof The said (here the name of the party of the second part), for himself and his heirs, does covenant and agree with the said party of the first part, and with his heirs and assigns, by these presents, that he the said party of the second part, and his heirs, or some of them, shall and will 011 the execution and delivery of the said deed or deeds as aforesaid, well and truly pay, or cause to be paid, unto the said party of the first part, or his heirs and assigns, the sum of dollars, in the manner following, to wit (set forth the terms and times of payment as agreed on). And upon (set forth the time agreed on) the said party of the first part shall give to the said party of the second p;irt possession of the aforesaid premises. And for the true performance of all and every the covenants and agreements aforesaid, each of the said parties bindeth himself, his heirs, executors and admin- istrators unto the other, his executors, administrators and assigns, in the penal sum of dollars. In Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature.) (Seal.) (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of us, (If it is intended that this contract should be recorded, in almost all cases it should be, an acknowledgment by both parties shouL 1 follow; and the record should be like that in the next Form.) 462 DEEDS CONVEYING LAND. (120.) Power of Attorney to Sell Lands. Know all Men by these Presents, That I, the undersigned (namt of the setting party) of the town (or city) of , County of , and State of , have this day made, constituted and appointed, and do by these presents make, constitute and appoint (name of attorney) of the town (or city) of , in the County of and State of , my true and lawful attorney, for me and in my name, to sell and dispose of, absolutely, in fee simple, the following-described lot, tract or parcel of land, or any part thereof, situate, lying and being in the County of and State aforesaid, to wit (here describe carefully the land or premises granted, as directed in Form 107) for such price or sum of money, and to such person or per- sons as he shall think fit and convenient ; and also for me and in my name, and as my act and deed, to sign, execute, acknowledge and deliver, such deed or deeds, and conveyance or conveyances, for the absolute sale and disposal thereof, or of any part thereof, with such clause or clauses, covenant or covenants, and agreement or agreements, to be therein contained, as my said attorney shall think fit and expedient ; hereby ratifying and confirming all such deeds, conveyances, bargains and sales which shall at any time hereafter be made by said attorney touching or concerning the premises. In Testimony Whereof, I have hereunto set my hand and seal, on this day of , A.D. 18 (Signature.) (Seal.) STATE OF COUNTY OF u Be it Remembered, That on this day AD. 18 , before the undersigned, a notary public (or oilier magistrate), within and for the County of and State of , personally came (the name of the principal) who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In "Witness Whereof, I have hereto set my hand and affixed my official eal, at my office hi the day and year first above written. (Signature.) (Seal.) STATfc OF ) > 88. IK THE RECORDER'S OFFICE. COUNTY or ) I, , Clerk of the Circuit Court, and ex-officio Recorder of aid county (or whoever else is the recording officer) do hereby certify that the within FORMS OP DEEDS. 463 instrument of writing was on the day of A.D. 186 duly filed for record in this office, and is recorded in the Records of this office in* Book at page In Witness Whereof, I have hereunto set my hand and affixed the seal of said court, at this day of A.D. 186 Recorder. Per Deputy. (121.) Trust Deed for the Benefit of a Wife, or some other Person. This Deed, Made and entered into this day of eighteen hundred and sixty by and between (name, resi- dence and occupation of the grantor) party of the first part, and (the name, residence and occupation of the trustee) party of the second part, and (name of the wife or any person who is to have the benefit of the trust) party of the third part, witnesseth : That the said party of the first part, in consideration of the sum of dollars, to him in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby also acknowledged, do, by these presents, give, grant, sell, transfer, convey and assign unto the said party of the part, the following-described tract or parcel of land, that is to say (here describe tfie premises carefully, as directed in Form 107). t To Have and to Hold the Same, With all the rights, privileges, and appurtenances thereto belonging, or in any wise appertaining, unto him the said party of the second part, his heirs and assigns forever : In trust, however, to and for the sole and separate use, benefit, and behoof of wiie of the said (or the name of the son or daughter, or any other person, may be substituted for that of the wife) and the said party of the second part hereby cove- nants and agrees to and with the said the party of the third part, that he will suffer and permit her (or him), without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his control and interference, debts and liabilities, courtesy, and all other interests what- soever ; and that he will, at any and all times hereafter, at the request and direction of the said (name of the party of the third part) expressed in writing, signed by her (or him) or by her (or hi*i) authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits and proceeds thereof to the said party of the third part, and 464 DEEDS CONVEYING LAND. that he will, at the death of the said party of the third part, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as the said party of the third part shall, by her (or his) last will and testament, or any other writing signed by her, or by her authority, direct or appoint ; and in default of such appointment, that he will convey such premises to (here state what it is intended shall be done with the property at the death of the party of the third part if he or she die intestate). And the said party of the third part shall have power at any tune hereafter, whenever she (or he) shall from any cause deem it necessary or expedient, by an instrument in writing under her (or his) hand and seal, and by her (or him) acknowledged, to nominate and appoint a trustee, or trustees, in the place and stead of the party of the second part above named ; which trustee or trustees, or the survivor of them, or the heirs of such survivor, shall hold the said real estate upon the same trust as above recited ; and upon the nomination and appointment of such new trustees, the estate in trust hereby vested in said party of the second part, shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said party of the third part. And said party of the first part, hereby covenants to warrant and defend the title to the said real estate against the lawful claims of all persons whomsoever, to the said parties of the second and third parts, their heirs and assigns. And the said party of the second part covenants faithfully to perform and fulfil the trust herein created. In Testimony "Wliereof, The said parties have hereunto set their hand and seal the day and year first above written. (Signature.') (Seal.) (Signature.) (Seal.) (Signature.) (Seal.) THE STATE OF ) [-83. COUNTY OF ) Be it Kemembered, That on the day of eighteen hundred and sixty , before me, the undersigned came (the persons who execute the instrument) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and severally acknowledged the same to be their free act and deed for the purposes therein mentioned. (Signature.) (122.) Trust Deed to secure Payment of a Note f without Release of Homestead or Dower.' This Deed, Made and entered into this day of eighteen hundred and , by and between (name and occupation of the grantor who is the debtor) of the County of State FORMS OF DEEDS. 465 of , part of the first part, and (name and occupation of the trustee) of the County of State of part of the second part, and (name and occupation of 'the creditor for whose benefit the deed is made) of the County of State of , part of the third part : Witnesseth, That the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby acknowl- edged, does by these presents grant, bargain and sell, convey and confirm, unto the said party of the second part, the following-described real estate, situate, lying and being hi the County of and State of , to wit (here describe carefully the land or premises granted, as described in Form 107). To Have and to Hold the same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to him and his heirs and his and their grantees and assigns, forever. In Trust, However, for the following purposes : Whereas the said party of the first part has this day made, executed and delivered to the said party of ths third part, his promissory note , of even date herewith, by which he promises to pay to the said (name of the creditor), or order, for value received, loo dollars, in (the days or months when the note is payable) Now Therefore, If the said party of the first part, or any one for him, shall well and truly pay off and discharge the debt and interest expressed in the said note and every part thereof, when the same becomes due and payable according to the true tenor, date and effect of said note, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said party of the first part ; but, should the said first party fail or refuse to pay the said debt, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable, according to the true tenor, date and effect of said note , then the whole shall become due and payable, and this deed shall remain in force ; and the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of County, , at the request of the legal holder of the said note, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at , in the of County, , for cash, first giving days' public notice of the time, terms and place of sale, and of the property to be sold, by adver- tisement hi some newspaper printed and published in the of , and upon such sale shall execute and deliver a deed in fee simple of the property sold to the purchaser or purchasers thereof, and receive the proceeds of said sale ; and any statement of facts or recital by the said trustee, in relation to the non-payment of the money secured to be paid, the advertisement, sale, receipt of the money, and the execution of the deed to the purchaser, shall be received as primd facie evidence of such fact ; and such trustee shall, out of the 466 DEEDS CONVEYING LAND. proceeds of said sale, pay, first, the cost and expenses of executing this trust, including legal compensation to the trustee for his services, and next shall apply the proceeds remaining over to the payment of said debt and interest, or so much thereof as remains unpaid, and the remainder, if any, shall be paid to the said party of the first part, or his legal representatives. And the said party of the second part covenants faithfully to perform and fulfil the trust herein created, not being liable or responsible for any mischance occasioned by others. In Witness Whereof, The said parties have hereunto set their hands and Beak the day and year first above written. (Signature of party of the first part.) ( Seal.) (Signature of party of the second part.) (Seal.) (Signature of party of the third part.) (Seal.) Signed, Sealed and Delivered in Presence of us STATE OF ^ > 88. COUNTY OF ) Be it Remembered, That on this day of A.D. 186 , before the undersigned, a within and for the County of and State of , personally came (names of all the parlies executing the deed) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged that they executed the same for the uses and purposes therein mentioned. In Testimony Whereof, I have hereto set my hand and affixed my official seal at my office in the day and /ear first above written. (Signature.) (Seal.) (123.) Deed of Trust to Secure a Debt; Fuller Form, and with Release of Dower. This Deed, Made and entered into this day of , eighteen hundred and sixty- , by and between (name and occupation of the debtor who is grantor) and (name of the wife of the grantdr) of' (resi- dence) parties of the first part, and (name of the grantees who are the trustees) of (residence) parties of the second part, and (name, residence, and occu- pation of the creditor for whose benefit the trust is created) of party of the third part, witnesseth, that the said parties of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to them paid by the said parties of the second part, the receipt of which is hereby FORMS OF DEEDS. 467 acknowledged, do by these presents grant, bargain and sell, uonvey and confirm, unto the said parties of the second part, the following-described real estate, to wit (here describe carefully the land or premises granted, by metes and bounds, as directed in Form 107). To Have and to Hold the same with the appurtenances, to the said parties of the second part, and to the survivor of them, and to their successor hereinafter designated, and to the assigns of the said parties of the second part, or of said survivor, or of said successor and his heirs forever. In Trust, however, for the following purpose : Whereas the said (name of the grantor and debtor) (here describe the debt, and if a promissory note is given, describe that, or set forth a copy of it (and has also agreed and covenanted, to and with the said party of the third part and his indorsees or assignees, to cause all taxes and assessments, general and special, to be paid within the times required by law, whenever imposed upon said property, and has also further covenanted and agreed, to and with said party of the third part, his indorsees or assignees, that he will keep the improvements upon said property constantly insured in some good and responsible insurance office or offices, to be approved by said party of the third part, his indorsees or assignees, in a sum not less than dollars, until said notes are (or note is) fully paid, and will assign the policy or policies of insur- ance to said party of the third part, his indorsees or assignees, with full power to demand, receive, and collect, any and all moneys accruing under said insurance, and the same to apply to the payment of said notes and the interest that may accrue thereon, unless otherwise paid, when the same become due, and has also covenanted and agreed, to and with said party of the third part, his indorsees or assignees, that there shall not, at any time while said notes remain unpaid, be any mechanics' liens filed or taken, upon the real estate herein described, or upon the buildings which now are, or may hereafter be, erected upon said real estate, and that should said party of the first part fail or neglect to pay said taxes, when the same are by law due and payable, or fail or neglect to effect insurance and assign the policy or policies as above provided, or fail or neglect to keep said real estate free from mechanics' liens, the said party of the third part, his indorsees or assign- ees, may, at his option, consider the notes above mentioned and described, as hav- ing each and all become due and payable, though not then due by the tenor and effect thereof, and may require the said parties of the second part, or the survivor of them, or their successor in trust, to sell the property above described as herrin- after provided, or may pay said taxes, or the premium for such insurance, or the amount of said mechanics' liens, and the amount or amounts so paid, together with interest thereon, at the rate of ten per cent per annum, shall be taken and con- sidered as a part of the amount secured hereby, and to be paid and refunded out of the proceeds of sale, should such sale be made, as hereinafter provided. Now, if the said notes be well and truly paid, as the same severally become due and payable, according to the tenor and effect of said notes, and each of them, and if the said corenants and agreements in regard to taxes, insurance, and mechanics' 468 DEEDS CONVEYING LAND. liens be faithfully kept and performed, and all moneys paid by said third r*art, his indorsees or assignees, on account of said taxes, insurance, and mechanics' liens, are refunded, with the interest thereon, as above provided, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part ; but should default be made in the payment of the said notes, or either of them, or any part of either of them, or of the interest that may accrue thereon, or any part thereof, as the same severally become due and payable, or if the said parties of the first part fail or neglect to pay said taxes, when due and payable, or to insure the buildings on said property, or to keep the same free from mechanics' liens, as provided in the foregoing covenants and agreements, or to refund to said party of the third part, his indorsees or assignees, the amount paid by him or them for said taxes, insurance, or mechanics' liens, with interest thereon, as above provided, then this deed shall remain in force, and the said parties of the second part, or either of them, or the survivor of them, or in the event of the death of both of them, or absence from this State, or their refusal to act, or other disqualification for the performance of the duties of this trust, then, at the request of the holder of said notes, the sheriff of she county of for the tune being (who shall thereupon become the successor of said trustees, and of the survivor of them, to the title of said property, and the same become vested in him, in trust, for the purposes and objects of these presents, with all the powers, duties and obligations thereof), may proceed to sell said described property, or any part thereof, at public vendue, to the highest bidder, for cash, at the (state the place of sale) first giving twenty days' public notice of the tune, terms, and place of said sale, and the property to be sold, by advertisement in some newspaper printed in the English language, and published in the county of and upon such sale, the said parties of the second part, or either of them, or the survivor of them, or their successor in trust, the sheriff of said county, as the case may be, shall execute and deliver a deed or deeds, in fee simple, of the property sold, to the purchaser or purchasers thereof (a recital wherein of the request of the holder of said notes that they should proceed to sell, of the publication of said notice, and in case of sale by the sheriff of said county, of the happening of any or either of the events making him successor in this trust, shall be received in all courts of law or equity, and to all intents- and pur- poses, as full and sufficient proof thereof), and shall receive the proceeds of said sale, out of which shall be paid, first, the cost and expenses of executing this trust, including compensation to said trustee, or said sheriff, for their or his services, next the amount paid by said party of the third part, or his indorsees or assignees for taxes, insurance, or mechanics' liens, with ten per cent per annum interest thereon, from the date of the payment thereof, and next, the amount remaining unpaid upon the principal note above described, together with all of the interest notes then due, and so much of the interest note, next falling due, as may be necessary to satisfy the interest on said principal note at the rate of per cent per annum from the- date when the preceding interest note became due, up to the day of sale, it being distinctly understood and agreed between the parties hereto, that the faii-jfc to pay any one of said notes, principal or interest, when due and payable, shall - *UBV the FORMS OP DEEDS. 469 principal note to become immediately due and payable, though not then due by the terms, tenor, or effect thereof, and the remainder, if any, shall be paid to the said parties of the first part or their legal representatives. And the said parties of the second part covenant faithfully to perform and fulfil the trust herein created. In Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of grantor.) (Seal.) (Signature of grantor's wife.) (Seal.) (Signature of trustee.) (Seal.) (Signature of other trustee.) (Seal.) (Signature of creditor.) (Seal.) Siqned, Sealed and Delivered in the Presence of STATE OF ) [-88. COUNTY OF ) Be it Remembered, That on this day of eighteen hundred and sixty- before me, the undersigned, came (names of the parties who execute the deed) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged the same to be their act and deed for the purposes therein mentioned. And the said having been by me first made acquainted with the contents of said instrument, on an examination separate and apart from her husband, acknowledged that she executed the same freely and with- out compulsion or undue influence of her said husband. In Testimony Whereof, I have hereunto set my hand and seal of office the day and year first above written. (124.) Trust Deed to Secure a Note, Shorter Form, but with Warranty, and Release of Homestead and Dower. This Indenture Witiiesseth, that (name, residence, and occupation of grantor) and (name of the wife of grantor) wife of the grantor herein, in consideration of the indebtedness hereinafter mentioned, and one ($1) dollar to them paid by (name, residence, and occupation of the trustee) grantee , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, remise, 470 DEEDS CONVEYING LAND. release and convey unto the said grantee , the following-described lot , piece , or parcel of land, situate in the county of and Stale of to wit (here describe carefully the land or premises granted, as directed in Form 107) To Have and to Hold, the same, with all the privileges thereunto or in any wise appertaining, and all the estate, right, title, interest, claim, or demand in and to the same, either now or which may be hereafter acquired unto the said grantee, his heirs and assigns. In trust, nevertheless, for the following purposes : "Whereas, the said (name of the grantor) grantor, herein, is justly indebted upon a certain promissory note, bearing even date herewith, payable to the order of (here describe the note) Now, in case of default in the payment of said note or any part thereof, or the interest accruing thereon, according to the tenor and effect thereof, or in the pay- ment of any taxes or assessments, ordinary or special, which may be levied or assessed against said premises during the continuance hereof, on the application of the legal holders of the said note, the said grantee (full power being hereby given), or his legal representatives, after having advertised such sale days in a news- paper published in or by posting up written or printed notices in four (4) public places hi the county where said premises are situate (personal notice being hereby expressly waived), shall sell the said premises or any part thereof, and all the right and equity of redemption of the said grantor, or his heirs, executors, administrators, or assigns therein, at public vendue, to the highest bidder for cash, at at the time appointed in the said advertisement, or may adjourn the sale from time to time at discretion and as the attorney of the said grantor, for such purpose hereby constituted irrevocable, or in the name of the said grantee or his legal representatives, shall execute and deliver to the purchaser or purchasers thereof, deeds for the conveyance in fee of the premises sold, and shall apply the proceeds of sale (1st) to the payment of all advances made by the said party of the second part for taxes and assessments ; and expenses for advertising, selling and conveying as aforesaid, including attorney's fees, and (2d) the amount due on said note, (3d) rendering the overplus, if any there be, to the said grantor or legal representatives, at the office of the said grantee in and it shall not be the duty of the purchaser to see to the application of the pur- chase money. And the said (names of the grantor and of his wife) parties of the first part, hereby expressly waive, release, and relinquish unto the said party of the second part, the said grantee, his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads : Provided, that the said grantor and his heirs and assigns may hold and enjoy said premises, and the rents, issues, and profits thereof, until default shall be made as aforesaid, and that when the said note and all expenses accruing hereby shall be fully paid, the said grantee or hia FORMS OF DEEDS. 471 legal representatives, shall reconvey all the estate acquired hereby in the said premises, or any part thereof, then remaining unsold, to (and at the cost of) the said grantor, or his heirs or assigns. And the said grantor covenants with the said grantee and with his legal repre- sentatives and assigns that he is seized in fee of the said premises, and has good right to convey the same in form aforesaid, that they are free from all liens or incumbrances of whatever name or nature, and that he will warrant and defend the same against all claims whatsoever, and will pay all taxes or assessments levied or assessed on the said greruises, or any part thereof, during the continuance hereof, and pay the same ten days before the day of sale thereof. Witness the hands and seals of the said (names of grantor and his wife) this day of A.D. 186 (Signature of grantor.) (Seal.) (Signature of wife of grantor.) (Seal.) In Presence of STATE OF COUNTY. On the day of eighteen hundred and sixty- Sss. before me of the county of in the State of appeared (name of the grantor) personally known to me to be the real person whose name subscribed to the foregoing deed of trust, as having executed the same, and then acknowledged the execution thereof as free act and deed for the uses and purposes herein mentioned. And the said (name of the wife of grantor) (who is personally known to me to t>e the same person who subscribed the said instrument of writing), having had the contents of the said instrument made known and fully explained to her, and she also by me being fully informed of her rights under the Homestead Laws of the State, and being by me examined, separate and apart from her said husband, did acknowledge said instrument to be her free act and deed ; that she executed the same, and relinquished her dower in the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compulsion of her husband, and that she does not wish to retract. Given under my hand and official seal, this day of A.D. 186 (Signature.) (Seal.) (125.) Deed from Trustees. This Deed, Made and entered into this day of A.D. eighteen hundred and by and between (names of trustees) party of the first part, and (name, residence, and occupation of grantee) party of the 472 DEEDS CONVEYING LAND. second part, witnesseth, that whereas (name of th( party who conveyed t7ie estate to the trustees) by deed dated the day of 186 recorded in the Recorder's office of County, State of in book conveyed the property hereinafter described hi trust to said (name of trustees) to secure the payment of certain promissory notes in said deed described, and whereas (here describe the non-payment or other default which has authorized the sale by the trustees) and the party herein of the first part, at the request of the legal holder of said promissory notes acting in pursuance of the provisions of said deed of trust, and having first given days' public notice of the tune, terms, and place of sale, and of the property to be sold, by an advertisement inserted on the day of A.D. in the a daily newspaper printed in the city of and continued to the day of sale (as will appear by the copy of said advertisement and affidavit of publication thereof hereto annexed as a part of this deed) did proceed to sell the property described in said deed at public vendue to the highest bidder for cash at in the city of on the day of 186 between the hours of ten o'clock in the moming and five o'clock hi the afternoon of said day, when and where the same was struck off to (the name of the purchaser who is the grantee) as the highest and last bidder therefor, at the price and sum of dollars, full payment whereof is hereby acknowledged ; now, said party of the first part, by virtue of the proceedings afore- said, and in consideration of the sum of dollars to him in hand paid by said party of the second part, does by these presents bargain, sell, and convey to said (name of the grantee) all the right, title, and interest (which by virtue of said trust deed and the proceedings aforesaid he may or can bargain, convey or sell) in and to the property described in said deed of trust, to wit (here describe the land or premises granted in the same way in which they are described in'the deed of trust under which Hie trustees act) To Have and to Hold the said described premises unto said (name of the purchaser) and unto his heirs and assigns forever. In "Witness "Whereof, the said party of the first part has hereto set his hand and seal the day and year first herein above written. (Signature.) (Seal.) In presence of (Signature.) (Seal.) STATE OF , ) [M. COUNTY ) Be it Remembered, that on this day of A.D. 186 before me, the undersigned, personally came who are to me personally known to be the same persons whose names are subscribed to the foregoing instrument of writing as parties thereto, and they acknowledged the eame to be their act and deed for the purposes therein mentioned. (Signature.) POEMS OF DEEDS. 473 (126.) x Deed of Master in Chancery. This Indenture, Made this day of A.D. 18 , between (name of grantor) Master in Chancery, in and for the County of and State of , of the first part, and (name of grantee) of the second part, witnesseth : That whereas, at the terra of the court of the said County of and State of , in the year of our Lord A.D. 18 , in a certain suit and proceedings in chancery, pending in said court, wherein were complainant , and were defendant , to obtain a decree for the sale of the property hereinafter described, and for other relief, it was ordered, adjudged, and decreed by the court, that (here set forth the decree under which the sale is made) and the master in chancery, in and for the County of and State of , was appointed to execute the said decree, and to make, execute, and deliver to the complainant a deed to the said premises as aforesaid, conveying to (the name, residence, and occupation of the grantee) all the interest and title of the defendant to said premises. Now, Therefore, Know all Men by this Deed, That I, Master in Chancery as aforesaid, in consideration of one dollar, to me paid by the said party of the second part, the receipt whereof I acknowledge before the execution hereof, and by virtue of the decree aforesaid, have granted, bargained, and sold, and do hereby grant, bargain, and sell unto the said party of the second part, his heirs and assigns forever, the following-described real estate, lying in the County of and State of to wit (here describe carefully the land or premises granted, as directed in Form 107) To Have and to Hold the said premises, with all the appurtenances thereto belonging, unto the said party of the second part, his heirs and assigns forever. In Testimony AV hereof, The said Master in Chancery of County, in the State of , has hereto set his hand and seal the day and year first above written. (Signature.) (Seal.) In Presence of ;t STATE OF ' 88. COUNTY. I, clerk of the county court in and for the County of and State of , do hereby certify, that the above-named whose name appears signed to tne foregoing 474 DEEDS CONVEYING LAND. deed, is personally known to me to be the same person described therein, and acknowledged to me that, as master in chancery aforesaid, he executed the said deed freely for the uses and purposes therein mentioned. Given under my hand and official seal at this day of A.D. 18 . (Signature.) Clerk. (Seal.) (127.) Sheriff's Deed on Execution, in Use in the Western States. "Whereas, (the name of the plaintiff" in the suit in which the execution issued) did at the term, A.D. eighteen hundred and sixty- of the court for the County of in the State of , recover a judgment against (name of the defendant in that suit) for the sum of and costs of suit, upon which judgment an execution was issued, dated on the day of A.D. eighteen hundred and sixty- directed to the sheriff of County, to execute, and by virtue of said execution (name of the sheriff) of then sheriff of said county, levied upon the lands hereinafter described, and the same were struck off and sold to (name of the purchaser at the sheriff's sale) he being the highest and best bidder therefor, and the time and place of the sale thereof having been duly advertised according to law. And the said (name of the purchaser) having duly assigned his certificate of purchase to (name of the grantee} Now, Therefore, Know all by this Deed, That I (name of the sheriff) sheriff of said County of in consideration of the premises, have granted, bargained, and sold, and do hereby convey to the said (name of the grantee) his heirs and assigns, the following-described tract of land, to wit (here describe carefully the land or premises granted, as directed in Form 107) To Have and to Hold the said described premises, with all the appurte- nances thereto belonging, to the said (name of the grantee) and his heirs and assigns forever. "Witness my hand and seal, this day of in the year of our Lord one thousand eight hundred and sixty- . (Signature.) (Seal.) In Presence of Sheriff of County. STATE OF , ) V 88. COUNTY OF ) I, clerk of the court of County, do certify that sheriff of County, personally known to me to be the real person whose name is subscribed to FORMS OP DEEDS. 475 the within annexed deed, this day acknowledged before me that he executed the said deed, as such sheriff, voluntarily and freely, for the use and purposes therein set forth. Given under my hand, and the seal of said court, this day of eighteen hundred and sixty- (Signature.) Clerk. (Seal.) (128.) Sheriff's Deed, in Use in New England. Know all Men by these Presents, That I (name of the deputy sheriff selling) of in the County of and State of , and a deputy sheriff under (name of the sheriff"), Esq., sheriff of said county, having, on the day of in the year of our Lord one thousand eight hundred and , by virtue of a writ of execution, which was issued upon a judgment, recovered at the term of the court holden at within and for the County of on the in the year of our Lord eighteen hundred and , by (name of the plaintiff" in the suit) of in the County of against (name of the defendant in that suit) of hi the County of for the sum of dollars and cents damage and costs of suit taxed at dollars and cents, seized and taken all the right in equity which the said had on the day of in the year of our Lord eighteen hundred and being the time when the same was attached on mesne process of redeeming the following-described mortgaged real estate, to wit (here describe carefully the land or premises granted, as directed in Form 107) and having on the day of last, being thirty days at least before the time of the sale hereinafter mentioned, given notice in writing, to the said (name of the defendant) of the time and place of sale, and having posted up notifi- cations thereof in one public place in said town of and in one public place in each of the towns of and being two towns adjoining said town of and also having caused an advertisement of the time and place of sale, to be published three weeks successively, before the day of sale, in the public newspaper called the printed at in said County of on the day of in the year of our Lord eighteen hundred and made sale of said right in equity of redemption at public auction, to (name of the purchaser) of in ; he being the highest bidder for the same, for the sum of dollars. Now, therefore, in consideration of said sum of dollars to me paid by the said (name of the purchaser) the receipt whereof I do hereby acknowledge, I have gi'-'en, granted, bargained, 82 476 DEEDS CONVEYING LAND. and sold, and do, by these presents, give, grant, bargain, sell, and convey to the said (name of the purchaser) his heirs and assigns forever, all the right in equity which the said (name of the defendant) had of redeeming the aforesaid mortgaged real estate, at the time aforesaid. To have and to hold the same to the said (name of purchaser) his heirs and assigns, to his and their use forever ; subject, however, to be redeemed agreeably to the law in such case made and pro- vided. And I, the said (name of grantor) in my said capacity of deputy sheriff, do covenant with the said (name of purchaser) as aforesaid, that, in making said sale, and in every thing concerning the same, I have complied with, and observed the rules and requisitions of the law for making sales of rights in equity to redeem real estate. But I do not warrant or defend to the said (name of the purchaser) that the said (name of the defendant) had any right, title, or interest in said estate at the tune aforesaid. In Witness Whereof I, the said in my said capacity of deputy sheriff, have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of . 18 Then the above-named personally appeared, and acknowledged the above instrument by him signed, to be his free act and deed. Before me, Justice of the Peace. x (129.) Sheriff's Tax Deed, in Use in tJie Western States. Know all Men by these Presents, That whereas, at the Term, A.D. 18 , of the Court of County, a judgment was obtained in said court, in favor of the State of against the following-described lot , piece or parcel of land, for the sum herein specified, to wit, the sum of (here state in writing the amount of the tax) ; said sum being the whole amount of taxes, interest, and costs assessed upon said lot , piece, or parcel of land, for the year 18 And whereas, on the day of A.D. 18 (name of the collector of taxes) then collector of taxes of the county aforesaid, by virtue of a precept or order issued out of the Court of the county aforesaid, dated the day of A.D. 18 , and directed to the said as aforesaid, did expose at public sale, at the Court-House, in the county aforesaid, in conformity with all the requirements of the statutes in such case made and pro vided, the said lot , tract, or parcel of land above describee, for the satisfac- FORMS OF DEEDS. 477 tion of the judgment so rendered, as aforesaid. And whereas, at the time and place aforesaid (name of the purchaser) of the County of and State of having offered to pay the aforesaid sum, amounting to the sum of dollars, and cents, for the (here state what part or portion of the land was sold) of said lot , piece, or parcel of land, as follows, to wit, the sum of dollars cents, which was the least quantity of said lot , piece, or parcel of land bid for, the saul lot , tract, or parcel of land was stricken off to (name of the pur- chaser) at that price. And whereas, the said purchaser has now made and deliv- ered to me an affidavit of having complied with all the requirements of the statute and constitution of the State of necessary to entitle said purchaser to a deed for the premises so sold to him as aforesaid ; and whereas the said (name of the purchaser) has duly assigned the certificate of purchase of the land above described, unto (the name of the grantee) : Now, therefore, I, sheriff of the county of for and in consideration of the said above-named sum, amounting to the sum of dollars, and cents, paid to (the collector of taxes) of said county of by the said (the name of the purchaser) at the timo of the aforesaid sale, and in consideration of (the amount of costs and fees) ioo dollars to me paid by said (name of grantee) and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said (name of the grantee) his heirs and assigns, the premises so sold as aforesaid, situated in the County of and State of to* wit (here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks or monu- ments) To Have and. to Mold unto him, the said (the name of the grantee) liis heirs and assigns forever, subject, however, to all the rights of redemption pro- vided by law. In Witness Whereof, I, sheriff as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name and affixed my seal this day of A.D. 18 (Seal.) Sheriff of County. STATE OF ) WM, COUNTY OP ) I, in and for said County and State, do certify that, sheriff of said county, who is personally known to me to be the real person who executed and subscribed his name to the foregoing dei-d, appeared before me this day, and acknowledged that he had executed the same as such sheriff, freely and voluntarily for the uses and purposes therein set forth. 478 DEEDS CONVEYING LAND. In attestation whereof, I have hereunto set my hand and attached the seal of our said court, at my office in in said County and State, this day of A.D. 18 (Signature) Clerk. (Seal.) (130.) Deed of Executor, in Use in the Eastern States. Know all Men by these Presents, That whereas (name of the executor') in the County of and State of executor of the last will of (name of the testator) late of deceased, by an order of the Court of Probate, held at within and for the County of on the day of hi the year one thousand eight hundred and was licensed and empowered to sell and pass deeds to convey certain real estate of the said deceased ; and whereas, the said executor having given public notice of the intended sale, by causing notifications thereof to be published once a week, for three successive weeks, prior to the time of sale, hi the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said deceased hereinafter described, to (name, residence, and occupation of the purchaser) for the sum of dollars j^ he being the high- est bidder therefor. Now therefore, Know ye, That I the said executor as aforesaid, by virtue of the power and authority in me vested as aforesaid, and in consideration of the aforesaid sum of dollars ^ paid by the said (name of purchaser) the receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell and convey unto the said (here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or bound- ary marks or monuments, and refer to the deed of the land to the testator, under which Tie held it) To Have and to Hold the afore-granted premises, with all the privileges and appurtenances to the same belonging, to him the said (name of pur- chaser) and his heirs and assigns, to his and their use and behoof forever. And 1 the said (name of executor) for myself and my heirs, executors, and administrators, do hereby covenant with the said (name of purchaser) and his heirs and assigns, that hi pursuance of the order aforesaid, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath and gave the bond by law required, previous to fixing on the time and place of sale. FORMS OP DEEDS. 479 In Witness Whereof, I the said executor as aforesaid, have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and sixty (Signature.) (Seal.) Signed, Sealed and Delivered in presence of 83. A.D. 186 . Then personally appeared the above-named execut and acknowledged the foregoing instrument to be free act and deed. Before me, Justice of the Peace. (131.) This Indenture, Made the day of in the year one thousand eight hundred and between (name of executor) executor of the last will of (name and residence of testator) of the first part, and (name, residence, and occupation of the purchaser, who is the grantee) of the second part, witnesseth, that the said party of the first part, by virtue of the power and authority to him given in and by the said last will and testament, and for and in consideration of the sum of lawtul money of the United States of America, to him in hand paid at or before the ensealing and delivery of these presents, by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and administrators, forever released and discharged from the same by these presents, have granted, bargained, sold, aliened, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, release, convey and confirm, unto the said party of the second part, and his heirs and assigns forever, all (here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks or monuments, and refer to the deed of the land to the testator, under which he held it) Together with all and singular the edifices, buildings, rights, members, privi- leges, advantages, hereditaments, and appurtenances to the same belonging or in any wise appertaining ; and the reversion and reversions, remainder and remain- ders, rents, issues and profits thereof. And also all the estate, right, title, interest, claim, and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, and which the said party of the first part hath, by virtue of the said last will and testament, or otherwise, of, in, and to the same, and every part and parcel thereof, with the appurtenances : To have and to hold the said premises above mentioned and described, and hereby gnmted and conveyed, or intended so to be, with the appurtenances, unto the said 480 DEEDS CONVEYING LAND. party of the second part, and his heirs and assigns, to his and their only proper use, benefit and behoof forever. And the said party of the first part, for himself and for his heirs, executors, and administrators, does for himself and for his heirs, executors, and administrators, covenant, grant, promise and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the second part, his heirs and assigns, shall and lawfully may from time to tune, and at all times forever hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy, all and singular the said hereditaments and premises hereby granted and conveyed, or intended so to be, with their and every of their appurtenances, and receive a-nd take the rents, issues, and profits thereof, to and for his and their own use and benefit, without any lawful let, suit, hindrance, molestation, interrup- tion or denial whatsoever, of, from, or by them the said party of the first part, his heirs or assigns ; or of, from, or by any other person or persons whomsoever law- fully claiming, or who shall or may lawfully claim hereafter, by, from, or under him, or by, from, or under his right, title, interest, or estate. And that free and clear, and freely and clearly discharged, acquitted and exonerated, or otherwise well and sufficiently saved, defended, kept harmless, and indemnified by them, the said party of the first part, his heirs and assigns, of, from, and against all and all manner of former and other gifts, grants, bargains, sales, mortgages, judgments, and all other charges and incumbrances whatsoever, had, made, committed, executed, or done by him the said party of the first part,' or by, through, or with his acts, deeds, means, consent, procurement, or privity. In "Witness Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. (Signature of party of the first part.) (Seal.) (Signature of parly of the second part.) (Seal.) Sealed and Delivered in the Presence of STATE OF ' 88. COUNTY. JNTT. ) This day personally appeared before the undersigned, (name and office of the magistrate) within and for the county and State aforesaid, (name of the executor) executor of the estate of (name of deceased) deceased, who personally known to me to be the person whose name as such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor sub- scribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor executed the same for the uses and purposes therein expressed. In Witness Whereof, I have hereunto set my hand and seal, at my office in said county, this day of A.D. 18 (Signature.) (Seal.) FOEMS Off DEEDS. 481 (132.) Deed of Administrator of Intestate. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name and residence of administrator) administrator of the goods and estate of (name of intestate) of who died intestate, party of the first part, and (name, residence, and occupation of the grantee) of the County of and State of party of the second part : Whereas, at the term, A.D. 18 of the court, within and for the County of and State of , in a certain petition or cause therein pending, in which the said (name of the grantor) administrator of the goods and estate of (name of the deceased) deceased, was petitioner and (names of the defendants who are minor children of the deceased, and of the widow of deceased, and of the guardian of the minors) were defendants, the following order and decree were rendered, that is to say : STATE OF [-88. r- ) COUNTY. In Court Term A.D. 186 (name of the administrator) administrator of the goods and estate of (name of deceased) deceased, vs. (names of the defendants, who should be the widow and heirs of the deceased ) And now comes the petitioner by his solicitor and presents his petition herein, and it satisfactorily appearing to the court that the defendants have been duly served with summons herein by the sheriff of County, and that the defendants are non-residents of the State of , and have been duly notified of this proceeding by publication as required by law, it is therefore ordered by the court, that the said defendants be called. And they, being three tunes solemnly called, came not, nor any one for them, but herein failed and made default ; which it ordered to be entered of record ; and it further appearing to the court that the said (names of defendants who are minora) are minors and have a guardian, to wit, the said (name of the* guardian) And afterwards the said (name of guardian) as such guardian comes and files his answer herein, neither admitting nor denying the allegations in said petition con- tained, but reserving the right of said minor by requiring proof. And this cause having been brought on to be heard upon the petition herein taken as confessed by the answer of said guardian and the exhibits and proofs, and the testi- mony of (name of the vntness or witnesses called in the case) witness duly sworn, who testified herein in open court, and it satisfactorily appearing to the court from the evidence that the said (name of the deceased) departed this life on or about the day of A.D. 18 , leaving (name of his widow) his widow and (names of his children) his children 482 DEEDS CONVEYING LAND. and only heirs at law ; that the petitioner herein was duly appointed administrator of the goods and estate of said (name of deceased) deceased, and that letters of administration were duly granted to him by this court, bearing date on the day of A.D. 186 , and the court having ascertained that said petitioner as aforesaid, has made a just and true account of the condition of the estate of said deceased to this court, and that the personal estate of said deceased is not sufficient for the payment of the debts of the said (name of the deceased) deceased ; and the court having found the amount of the deficiency aforesaid to be the sum of dollars, besides interest and costs, and it further appearing to the court that the said (name of the deceased) died seized of the following-described real estate, situate in the County of and State of , to wit (here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks or monu- ments, and refer to the deed of the land to the deceased, under which he held it) and the court having ascertained that it will be necessary to sell the said real estate to pay the deficiency aforesaid, with the expenses of administration now due and to accrue ; it is therefore ordered, adjudged, and decreed, that the said petitioner pro- ceed, according to law, to advertise and make sale of the real estate above described, or so much thereof as may be necessary to pay the debts now due from said estate, and the costs of administration now due and to accrue. And it is ordered and decreed by the court, that said sale shall be made on the following terms; viz., (here set forth the terms, place, time, and manner of the sale as pre- scribed in the decree) which terms shall be distinctly set forth in all the advertise- ments of said sale. It is further ordered that upon such a sale being made, that said (name of said administrator) shall make and execute to the purchaser or purchasers of said real estate, good and sufficient deed or deeds to convey the interest of said deceased therein at the time of his decease, and that said (name of the administrator) repprt his action in the premises with all convenient speed. And it is further ordered, that his cause stand continued for said report. And Whereas, in pursuance of said order and decree, the said party of the first part did on the day of A.D. 18 , between the hours of ten o'clock in the forenoon, and five o'clock in the afternoon of such d;; y, at (place of sale) expose to sale by public vendue, to the highest bidder, the lands and real estate so ordered to be sold, in said decree, having first given notice of the time, terms, and place of such sale, with a description of such lands and real estate, according to the terms and requirements of said order and decree, and of the statute regulating such sales, as will more fully and at large appear by the report of such sale, made by said party of the first part, as administrator as afore- said, to the said court. And Whereas, at such sale, the said party of the second part became the purchaser of the following-described lands and real estate, being the highest bidder therefor, at the following price ; that is to say (here slate what part, or the whole, of the aboxe-described lands were sold, and at what price) FORMS OF DEEDS. 483 Now, Therefore, This indenture witnesseth that the said party of the first part, by virtue of the order and decree aforesaid, and in consideration of the premises, and for the further consideration of the sum of dollars, to him hi hand paid by the said party of the second part, the receipt of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey unto the said party of the second part, heirs and assigns, the lands and real estate last above described as having been sold to the said party of the second part, to have and to hold the same with all the appurtenances thereunto belonging, or in any wise appertaining, to the only proper use, benefit, and behoof, of the said party of the second part, and his heirs and assigns forever. And the said party of the first part, for the consideration aforesaid, covenants with the said party of the second part, and his heirs and assigns, that he has in all respects complied with the order and decree aforesaid, and with the directions of the law generally hi such case made and provided. In Witness "Whereof, The said party of the first part, as administrator as aforesaid, has hereunto set his hand and seal the day and year first above written. (Signature.) (Seal.) Administrator of (name of deceased) as aforesaid. In Presence of STATE OF i 83. This day personally appeared before the undersigned, within and for the county and State aforesaid, executor of the estate of (name of deceased) deceased, who personally known to me to be the person whose name as such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor executed the same for the uses and purposes therein expressed. In Witness Whereof, I have hereunto set my hand and seal, at my office in said county, this day of A.D. 18 (Signature.) (Seal.) (133.) Deed Poll of Guardian of a Minor. Know all Men hy these Presents, That whereas (name of guardian and grantor) of in the County of and State of , guardian of (name of the ward) a minor child of (name of the father of the minor) by an order of the probate court, held at within and for County of on the day of in the year one thousand eight hundred and was licensed and empowered to 484 DEEDS CONVEYING LAND. sell and pass deeds to convey certain real estate of the said minor ; and whereas, I, the said guardian, having given public notice of the intended sale, by causing notifications thereof to be published once a week, for three successive weeks, prior to the time of sale, in the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said minor hereinafter described, to (the name, residence, and occupation of the purchaser and grantee) for the sum of dollars 160 he being the highest bidder therefor. Now, Therefore, Know ye, That I, the said (name of the guardian ar.d grantor) guardian as aforesaid, by virtue of the power and authority in me vested as aforesaid, and in consideration of the aforesaid sum of dollars loo to me paid by the said the receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto the said (name of the purchaser and grantee) a certain lot or parcel of laud, situated, bounded, and described as follows (here describe the premises as directed in Form 107) To Have and to Hold the aforegranted premises, with all the privileges and appurtenances to the same belonging, to him the said (purchaser's name) and his heirs and assigns, to his and their use and behoof forever. And I, the said (name of guardian) for myself, my heirs, executors, and administrators, do hereby covenant with the said (name of purchaser) and his heirs and assigns, that in pursuance of the order aforesaid, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath by law required, previous to fixing on the time and place of sale, and gave the bond previous to said sale. In Witness AViiereof, I, the said guardian as aforesaid, have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Signed, Sealed and Delivered in Presence of ts. A.D. 18 . Then personally appeared the above-named guardian, and acknowledged the foregoing instrument to be free act and deed. Before me, Justice of the Peace. (134.) Deed of Referee on Foreclosure, in Use in the Middle States. Tills Indenture, Made the day of in the year one thousand eight hundred and between (name and residence of the referee and grantor), a referee duly appointed as hereinafter mentioned, of the FORMS OF DEEDS. 485 first part, and (name, residence, and occupation of the grantee) of the second part. Whereas at a Term of the (name of the court) court, on the day of one thousand eight hundred and it was among other things ordered and adjudged by the said court, in a certain action then pending in the said court, between (names of plaintiff and defendant in the action) That all and singular the mortgaged premises mentioned in the complaint in said action, and in said judgment described, or so much thereof as might be suffi- cient to raise the amount due to the plaintiff for principal, interest, and costs in said action, and which might be sold separately, without material injury to the parties interested, be sold at public auction, according to the course and practice of said court, by or under the direction of the said party of the first part as referee thereby, duly appointed for that purpose : that the said sale be made (here state the directions in the order of court as to the place and time of the sale) that the said referee give public notice of the tune and place of such sale, according to the course and practice of said court, and that any of the parties in said action might become a purchaser or purchasers on such sale ; that the said referee execute to the pur- chaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of conveyance for the same : And Whereas, the said referee, in pursuance of the said judgment of the said court, did on the day of one thousand eight hundred and sell at public auction at (the place of sale) the premises in the said judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said judgment; at which sale the premises hereinafter described were struck off to the said party of the second part for the sum of dollars, that being the highest sum bidden for the same. Now this indenture wit- nesseth, that the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment of the said court, and hi conformity to the statute hi such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part, the premises aforesaid, situate, bounded, and described as follows (describe here the premises sold as directed in Form 107) To Have and to Hold all and singular the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said party of the second part, his heirs and assigns, to and for his and their only proper use, benefit, and behoof. In Witness Whereof, The said referee as aforesaid, hath aereunto set his hand and seal, the day and year first above written. (Signature.) (Seal.) Sealed and delivered in the presence of 486 DEEDS CONVEYING LAND. STATE OK !8S. COUNTY. On the day of one thousand eight hundred and before me came known to me to be the individual described in, and who executed the above conveyance, and acknowledged that he executed the same, (Signature.) (135.) Deed of Collector of Taxes. To all Persons to whom these Presents shall come, I, (name cf collector) of La the county of and State of collector of taxes for said town of duly chosen and qualified at the last annual meeting of the inhabitants of said town, held on the day of last past sends greeting : Whereas, the assessors of said town of (name of the town) in their list of assessments committed to me, the said (name of the collector) to collect, have assessed (name of the parly for whose taxes the land is sold) a resident owner of a certain tract of land situated in said bounded and described as follows, viz. (describe Hie premises as directed in Form 107) the sum of (amount of tax) and ioo dollars, as a tax on said premises for the year eighteen hundred and And Whereas I, the said (name of collector) have demanded payment of said tax of (name of party taxed) more than fourteen days before proceed- ing to advertise and sell as hereinafter set forth. And Whereas the said (name of the party taxed) has given no written authority to any inhabitant of said town, as his attorney to pay the tax imposed on said land, and no mortgagee of said land has given written notice to the clerk of said town, that he the said mortgagee holds a mortgage thereon, nor given written authority to any inhabitant of said town as his attorney, to pay said tax. And Whereas I, the said having given public notice of the time and place of sale of the said land, for the non-payment of said tax, by an advertise- ment thereof three weeks successively, in the newspaper called the printed and published in in said county, the last publication of said advertisement being one week before the time of said sale : also by posting a like notice on said land three weeks before the time of said sale : and also by posting a like notice (here state whatever other places the notice teas posted at) being two public places in said town, three weeks before the time of said sale, which notices severally contained the name of the said (name of the party taxed) and the amount of the tax assessed on said land ; also a substantially accurate description of said land, did, on the day of instant, pursuant to the authority FORMS OF DEEDS. 487 and notice aforesaid, no person appearing to pay said tax, and it being the opinion of me, that the said land could not be conveniently divided and a part thereof set off without injury to the residue, and judging it to be most for the public interest to sell the whole of said land, sell, at public auction, the said land above described, to (name of purchaser and grantee) for the sum of and Ioo dollars, he being the highest bidder therefor. NOW Therefore, Know Ye, that I the said (name of the collector) by virtue of the authority in me vested as aforesaid, and in consideration of the aforesaid sum of and ioo dollars, to me paid by the said (name of the purchaser) the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said all that said tract or parcel of land above mentioned and described, with the appurtenances thereto belonging. To Have and to Hold the same to him, the said grantee, his heirs and assigns, to his and their use and behoof forever ; subject, nevertheless, to the right of redemption, according to law. And I, the said grantor, do covenant with the said grantee, his heirs and assigns, that in making the said sale as above set forth, I have complied with, observed, and obeyed all the provisions of law for the sale of real estate for the non-payment of taxes. In Witness Whereof, I, the said collector, have hereto set my hand and seal, this day of in the year eighteen hundred and (Signature.) (Seal.) Executed and delivered in the presence of STATE OF , ) V S3. COUNTY. ) A.D. 18 Then personally appeared the above-named collector, and acknowl- edged the above instrument to be his free act and deed. Before me, Justice of the Peace. (136.) Deed of Assignee, in Use in the Western States. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and (A.D. 18 ) between (name, residence and occupation of the assignee who is the grantor) as assignee of (name, residence and occupation of the assignor) of the one part, and (name, residence and occupation of the purchaser who w grantee) of the other part : Whereas, The said (name of the assignor) being lawfully seized in his demesne, as of fee, among other things, of and hi a certain lot, piece 01 parcel of ground, situate in the County of and State of i 488 DEEDS CONVEYING LAND. known and described as follows, to wit (here describe the premises as in Form 107). And being so thereof seized, did, on or about the day of A.D. one thousand eight hundred and (A.D. 18 ), enter into a written contract with the said party of the second part for the sale of the above-described premises for the sum of dollars. And Whereas, The said (name of the assignor) did, by his certain deed of assignment, bearing date the day of A.D. 18 , grant, bargain, sell, alien, remise, release, convey, assign, transfer and set over (with other property) the above-described lot, piece or parcel of ground unto the said party of the first part, his successors, executors, administrators and assigns forever, in trust nevertheless, to and for the uses and intent and purposes in said deed of assignment mentioned and set forth, reference thereto being had may fully and at large appear ; which said deed of assignment is recorded in Book page of deeds, in the office of the clerk of the Circuit Court of said county, and ex-oflicio recorder of deeds. And Whereas, The said assignor did not comply with the said contract before the execution and delivery of the said deed of assignment to the said party of the first part, Now this Indenture Witnesseth, That the said (name of the assignee and grantor) assignee of said (name of the assignor) for and in consideration of the sum of dollars (being the balance of the pur- chase money and interest due on said contract), unto him in hand paid by the said party of the second part, at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, by these presents does grant, bargain, sell, alien, release and confirm unto the said party of the second part, and his heirs and assigns, all the above mentioned and described lot, piece or parcel of ground, together with all and singular the rights, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and all the estate, right, title, interest, property, claim and demand whatever, that he the said assignor had and held at and immediately before the execution and delivery of the said deed of assignment to said party of the first part, and also all the right, title, interest, ' property, claim and demand whatever, that the said party of the first part, acquired in, under or by virtue of the said deed of assignment by said assignor, to him, the said party of the first part. To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in any wise appertaining, and all the estate, right, title, interest and claim whatsoever, either in law or equity, that said assignor had and held at the time of and immediately preceding the execution and delivery of said deed of assignment to the said party of the first part, and all the right, title interest and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. In Witness Whereof; The said party of the first part has hereunto set his hand and seal the day and year first above written. (Signature of assignee.) (Seal.) FORMS OF DEEDS. 439 STATE OF ,1 83. COUNTY. I, a in and for said county, in the Stat* aforesaid, do hereby certify that who is personally known to me as the real person whose name is subscribed to the within deed, appeared before me this day, in person, and acknowledged that he executed and delivered the said deed, as his free and voluntary act for the uses and purposes therein set forth. Given under my hand and seal this day of in the year of our Lord one thousand eight hundred and (A.D. 18 ). (Signature.') (Seal.) (HIT.) Acknowledgment of Grantor and Wife identified, before Commis- sioner for another State. STATE OF ) t [ ss. COUNTY OF y Be it Remembered, That on the day of one V housand eight hundred and before me, commis- sioner for the State of (name of the State of which he is commissioner) resident in the of , duly appointed, commissioned, and sworn to take acknowledgments and proof of deeds and other writings in the State of , to be used or recorded hi the said State of (name oftht State of which he is commissioner) and to administer oaths and affirmations, and to take depositions in the said State of , to be used within the said State of appeared (name of grantor) and (name of wife of grantor) hia wife, who are satisfactorily proven to me to be the individuals described in, and who executed the within deed, from said (name of grantor) and wife to (name of grantee) by the oath of (witnesses to their identity) who being by me duly cautioned and sworn, deposed that he knew them, the individuals, then present, to be the persons described in, and who executed the within deed. The said and his wife, then and there acknowledged to ine that they executed the said deed for the purposes therein mentioned ; and the said (name of the wife) being examined by me privily, and apart from her said husband, and the contents and effect of the said deed being by me first duly explained to her, did then and there acknowledge that she executed the same for the purposes therein mentioned, freely and without compulsion of or from her said husband. In "Witness Whereof, I have hereunto set my hand and affixed the seal of my office, on the day of in the year of our Lord one thousand eight hundred and (Signature) (Seal.) 490 MORTGAGES OF LAND. CHAPTER XXX. MORTGAGES OF THE purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although not the same thing. Mortgages are now made of personal property, as well as of real property ; but we will consider in this chapter a mortgage of real property ; or, as it is usually called, a mortgage deed. This is a deed conveying the land to the creditor as fully, and in precisely the same way, as if it were sold to him outright ; but with an addition. This consists of a clause inserted before the clause of execution, to the effect, that if the grantor (the mortgagor) shall pay to the grantee (the mortgagee) a certain amount of money at a certain time, then the deed shall be void. It is usually expressed in words substantially like these : " Provided, nevertheless, that if the said A B (the grantor), his heirs, executors, or administrators, shall pay to the said C D (the grantee), his executors, administrators, or assigns, the sum of $ - with interest (semi-annually, or otherwise as agreed on), on or before the -- day of - , then this deed, and also a cer- tain promissory note signed by said A B, whereby said A B promised to pay said C D, or his order, the said sum at the said time, shall both be void; and otherwise shall remain in full force." In some States it is more frequent to make a bond, instead of a note, to be secured by the mortgage ; and the proviso should be altered accordingly ; and it should also be made to express any other terms agreed on. Some of these will be spoken of presently. In law, every thing is a mortgage which consists of a valid con- veyance, and a promise, or agreement, which may be on the same or on a different piece of paper or instrument, providing that the con- veyance shall be void when a certain debt is paid, or the act per- formed for which the mortgage is security. The mortgagee has now a title to the land ; but it is subject to MORTGAGES OF LAND 491 avoidance by payment of the debt. Until such payment, the land is his ; and all the mortgagor owns in relation to it is a right to pay the debt and redeem the land. Hence, a mortgagee has instantly as good a right to take possession of the land (unless, as is now com- mon, the deed provides that the mortgagor may retain possession) as if he were an outright purchaser. Formerly, a mortgagor had a right to redeem his land only before or when the debt became due ; for, if he did not pay the money when it was due, he had no further right. But courts of equity, deeming this too hard, allowed him a further time to redeem it. And courts of law adopted the same rule, which is also contained in the statutes of all our States. This right to redeem is called a right in equity to redeem, or, more briefly and commonly, an equity of redemption ; which all courts now regard and protect. Tho mortgagor may sell this equity of redemption, or he may mortgage it by making a second or other subsequent mortgage of the land, and it may be attached by creditors, and would go to assignees as a part of his property if he became insolvent. Tho time within which a mortgagor may thus redeem his land is usually three years. The law regards this equity as so important, that it will not per- mit a party to lose it by his own agreement. Thus, if a mortgagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may have possession and absolute title as soon as the debt is due and unpaid, the law seta aside all such agreements, and gives the debtor his equity of redemp- tion for three years. Within a few years, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be certainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that, if the money is not paid when it is due, the mortgagee may, in a certain number of days thereafter, sell the land (providing also such precautions to secure a fair price as may be agreed on), and, reserving enough to pay his debt and charges, pay over the balance to the mortgagor. This is called a power of sale mortgage. 33 492 MORTGAGES OF LAND. The three years of redemption do not begin from the day when the debt is due and unpaid, unless the mortgagee then enters and takes possession for the purpose of foreclosing the mortgage, as the legal phrase is ; by which phrase is meant extinguishing the equity of redemption. If the debt has been due a dozen years, the mort- gagor may still redeem, unless the mortgagee has entered to fore- close, and three years have elapsed afterwards. He may make entry for this purpose in a peaceable manner, be- fore witnesses, as pointed out in the statutes regulating mortgages, or by an action at law. If the mortgagor redeems, he must tender the debt, with interest, and the lawful costs and charges of the mortgagee ; but he will be allowed such rents and profits as the mortgagee has actually received, or would have received but for his own fault. It is commonly thought that the mortgagor has a right to retain possession until the debt is due and unpaid, and in fact he usually does so. But we have seen that the mortgagee has just as much right of immediate possession as a buyer ; and therefore, if it is not intended that he should have possession at once, the mortgage deed ought to contain a clause to the effect, that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements. One of these other agreements, which is now very common, is that the mortgagor shall keep the premises insured in a certain sum for the security of the mortgagee ; and, if there be such an agreement, it should be expressed in the deed. Otherwise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor. If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land, and forecloses the mortgage, he gets all these additions. If the mort- gagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them. Such is the effect of the law if there be no bargain between the par- ties about these things. But they may make any bargain about them they choose to make. The remarks which were made at the close of the preceding chap- ter (just before the forms), concerning the various Forms of deeds FORMS OF MORTGAGES, ETC. 493 conveying land, apply with equal force to deeds of mortgage of land ; and I refer to them now because they are equally necessary to the proper understanding and use of the following Forms. (138.) A Promissory Note, to be secured by Mortgage. 18 for value received promise to pay to dollars, at with interest at the rate of per cent per annum This note is secured by a deed of mortgage of even date herewith, from to which is duly stamped according to the internal revenue law. (Signature.) (139.) Bond, to be secured by a Mortgage. Know all Men by tliese Presents, That I (name of obligor) of in the County of and State of , am held, bound and obliged unto (name of obligee) of in the County of and State of , in the sum of (penalty, usually twice as much as the actual debt) to be paid to the said (the obligee) his executors, administrators, heirs or assigns, and to this payment I hereby bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal, this day of in the year The Condition of the above obligation is such, that if I the said (namt of the obligor) or my heirs, executors or administrators, shall pay or cause to be paid unto the said (name of the obligee) the sum of (here insert the amount of the debt or sum to be secured) on the day of in the year , with interest at per cent, payable six months from the date hereof, and every six months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect ; and otherwise it shall remain in full force. And I further agree and covenant, that if any payment of interest be withheld or delayed for days after such payment shall fall due, the said principal sum and all arrearage of interest thereon, shall be and become due immediately on the expiration of days, at the option of s-;iid (name of the obligee) or his executors or administrators. (Signature.) (Seal.) (Witness.) ' . 494 MORTGAGES OF LAND. (14=0.) Mortgage without Power of Sale and without Warranty, but with release of Homestead and of Dower. This Indenture, Made this day of in the year of our Lord one thousand eight hundred sixty- between (name, residence and occupation of mortgagor) and (name of wife) -wife of said (name of mortgagor) parties of the first part, and (name, residence and occu- pation of mortgagee) party of the second part, Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of secured to be paid by a certain promissory note (or bond) (describe the note or bond) Xow, Therefore, this Indenture Witnesseth, That the said parties of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said note (or bond) above mentioned ; and also in consideration of the further sum of one dollar to us in hand paid by the said party of the second part, at the delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold and con- veyed, and by these presents do grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, all that (here describe the premises as directed in Form 107 of deeds of land) 9 To Have and to Hold the Same, Together with all and singular the tenements, hereditaments, privileges and appurtenances thereunto belonging or in any wise appertaining. And also all the estate, interest and claim whatsoever in law as well as in equity, which the parties of the first part have in and to the premises hereby conveyed unto the said party of the second part, and his heirs and assigns, and to their only proper use, benefit and behoof. And the said parties of the first part hereby expressly waive, release, relinquish and convey unto the said party of the second part and his heirs, executors, administrators and assigns, all right, title, claim, interest and benefit whatever, in and to the above-described prem- ises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. Provided Always, and these Presents are upon this Express Condition, That if the said party of the first part, or his heirs, executors or administrators shall well and truly pay or cause to be paid to the said party of the second part or b is heirs, executors, administrators or assigns, the aforesaid sum of money, with such interest thereon, at the time and in the manner specified in the above-mentioned note (or bond) according to the true intent and meaning thereof, FOEMS OF MORTGAGES, ETC. 495 then in that case, these presents and every thing herein expressed shall be abso- lutely null and void. In Witness "Whereof, The said parties of the first part hereunto set their hand and seal the day and year first above written. (Signature of mortgagor.) (Seal.) (Signature of wife of mortgagor.') (Seal.) Signed, Sealed and Delivered in Presence of STATE OF ' 88. COUNTY. JNTY. ) I in and for the said county, in the State aforesaid, do hereby certify that (name of mortgagor) personally known to me as the same person whose name is subscribed to the foregoing mortgage, appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument of writing as his free and voluntary act, ibr the uses and purposes therein set forth. And the said (name of wife) wife of the said (name of mortgagor) having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of said instrument of writing having been by me made known and fully explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements herein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of home- steads, voluntarily and freely and without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal this day of A.D. 186 (Signature.) (Seal.) (141.) Mortgage, with Power of Sale, to secure a Bond, without Release of Dower. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of mortgagor) party of the first part, and (name, residence, and occupation of mortgagee) party of the second part ; Whereas, the said (name of mortgagor) is justly indebted to the said party of the second part, in the sum of lawful money of the United States, secured to be paid by a certain bond or obligation bearing even date with these presents, in the j>rit:il sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of (here state the amount due on the bond, 496 MORTGAGES OF LAND. and the time and terms of payment') as by the said bond or obligation, and the con- dition thereof, reference being thereunto had, may more fully appear. Now this Indenture Witnessed!, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him hi hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowl- edged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all (here describe the premises as directed in Form 107, deeds of land) Together with all and singular the tenements, hereditaments, and appurte- nances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof: and also all the estate, right, title, interest, property, possession, claim, and demand whatso- ever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurte- nances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. Provided Always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, or his executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation and the interest thereon, at the time and in the manner mentioned hi the said condition according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said (name of mortgagor') for himself and his heirs, executors, and administrators, does covenant and agree, to pay unto the said party of the second part, or his executors, administrators, or assigns, the said sum of money and interest as mentioned above and expressed in the condition of the said bond. And if default shall be made hi the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth, it shall be lawful for the said party of the second part, or his executors, administrators, or assigns, to enter into and upon all and singu- lar the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction. And out of the money arising from such sale, to retain the principal and interest, which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be), unto the said (name of mortgagor) FORMS OF MORTGAGES, ETC. 497 party of the first part, or his heirs, executors, administrators, or assigns, which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, and his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him or them, or any of them. In Witness Whereof; The parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. (Signature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.) Sealed and Delivered in tlie Presence of STATE OF ") Vss. On the day of in the year one thousand eight hundred and before me personally came (names of both parties) who are known to me to be the individuals described in, and who executed the forego- * O ing instrument, and acknowledged that they executed the same. (Signature.) (142.) Mortgage to secure a Debt, with Power of Sale. Short Form. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of mortgagor) party of the first part, and (name, residence, and occupation of mortgagee) party of the second part, witnesseth, that the said party of the first part, in consideration of the sum of (the amount of the debt) to him duly paid before the delivery hereof, has bargained and sold, and by these presents does grant and convey to the said party of the second part, and his heirs and assigns forever, all (here describe the premises as directed in Form 107 of deeds of land) with the appurtenances, and all the estate, right, title, and interest of the sjiid party of the first part therein. This Grant is intended as a security for the payment of (here describe the debt) which payments, if duly made, will render this conveyance void. And if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, or his executors, administrators, or assigns, are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due, with the costs and expenses allowed by law. In Witness Whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. (Signature.) (Seal.) Sealed and Delivered in the Presence of 498 MOKTGAGES OF LAND. STATE OF :i .88. COUNTY OF On the day of in the year oru thousand eight hundred and before me personally came (name of mortgagor), who is known to me to be the individual described in, and who exe- cuted, the foregoing instrument, and acknowledged that he executed the same, as his free act and deed. (Signature.) (143.) Mortgage to secure a Debt, fuller Form, with Power of Sale. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of mortgagor) party of the first part, and , (name, residence, and occupation of the mortgagee) party of the second part : "Whereas, the said party of the first is justly indebted to the said party of the second part in (here describe the amount and terms of the debt, or note, or bond) Now this Indenture Witnesseth, That the said party of the first part, for the better securing the debt (or note, or bond) above described, according to . the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowl- edged, has granted, bargained, sold, aliened, remised, released, conveyed, and con- firmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs ami assigns forever, all (here describe the premises as directed in Form 107, deeds of land) Together with all and singular the tenements, hereditaments and appurte- nances thereunto belonging, or in any wise appertaining, and the reversion an' 1 reversions, remainder and remainders, rents, issues and profits thereof. And also all the estate, right, title, interest, property, possession, claim and demand what- soever, as well hi law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained and described premises, with the appur tenances, unto the said party of the second part, and his heirs and assigns, to hi s and their own proper use, benefit, and behoof forever. Provided Always, and these presents are upon this express condition, tha > if the said party of the first, or his heirs, executors, or administrators, shall wel. and truly pay to the said party of the second part, or his Lairs, executors, adminin trators, or assigns, the above-described debt (or note, or bond) according to ternu< FORMS OF MORTGAGES, ETC. 499 and tenor thereof, then this deed (and also said debt or note or bond ) shall be wholly discharged and void ; and otherwise shall remain in full force and effect. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singu- lar the premises hereLy granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns, therein, at public auction, accord- ing to the act in such case made and provided. And as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance in the law for the same, in fee simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said debt (or note or bond) together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be), unto the said party of the first part, or his . heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, or his heirs and assigns, and all other persons claiming or to claim the premises or any part thereof, by, from, or under him, them, or either of them. In Witness Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. (Signature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.) Sealed and Delivered in the Presence of STATE OP } >-88. COUNTY OF ) On the day of in the year one thousand eight hundred and before me personally came (names of both parties) who are known to me to be the individuals described in, and who executed the forego- ing instrument, and acknowledged that they executed the same. (Signature.) (144.) Deed Poll of Mortgage, with Power to sell, and Insurance Clause r and Release of Dower and Homestead. Know all Men by these Presents, That I (name, residence and occupation of mortgagor) in consideration of tome paid by (name, residence and occupation of mortgagee) the receipt whereof is hereby acknowledged, 500 MORTGAGES OF LAND. do hereby give, grant, bargain, sell, and convey unto the said (name of mort- gagee) all that lot or parcel of land, with all the buildings thereon standing, situated in the town (or city) of County, of State of and bounded and described as follows; that is to say (here describe the premises as directed in Farm 107, in chapter on deeds of land.) To Have and to Hold the afore-granted premises, with the privileges, casements, and appurtenances thereto belonging, to the said grantee, and to hii heirs and assigns, to their use forever. And I the said grantor, for myself and my heirs, executors and administrators, do covenant with the said grantee, and his heirs and assigns, that I am lawfully seized in fee of the afore-granted premises ; that they are free from all incum- brances (if any incwnbrance exists, say " except as follows," and describe the incumlrance,) that I have good right to sell and convey the same to the said grantee, and his heirs and assigns as aforesaid ; and that I will, and my heirs, ex- ecutors, and administrators shall warrant and defend the same to the said grantee, and his heirs and assigns forever, against the lawful claims of all persons. Provided IVevertheless, That if the said grantor, or his heirs, executors, or administrators, shall pay unto the said grantee, or his executors, administrators or assigns, the sum of dollars 135 in days (or months) from the day of the date hereof, with interest on said sum at the rate of per centum, per annum, payable (semi-annually) and until such payment keep the buildings standing on the land aforesaid insured against fire, in a sum not less than dollars, for the benefit of said mortgagee and payable to him in case of loss, at some insurance office approved by said mortgagee; or in any default thereof, shall on demand pay to said mortga- gee all such sums of money as the said mortgagee shall reasonably pay for such insurance, with interest, and also pay all taxes levied or assessed upon the said premises, then this deed, as also (a certain lond or) a certain promissory note, bearing even date with these presents, signed by the said mortgagor, whereby for value received he promises to pay the said mortgagee or his order, the said sum and interest, at the time aforesaid, shall both be absolutely void to all intents and purposes. But if default shall be made in the payment of the money above mentioned, or the interest that may grow due thereon, or of any part thereof, then it shall be lawful for the said grantee, or his executors, administrators, or assigns to sell and dispose of all and singular the premises hereby granted or intended to be granted, and all benefit and equity of redemption of the said (name of the mortgagor) the grantor, his heirs, executors, administrators, or assigns therein, at public auction ; such sale to be on or near the premises hereby granted ; first giving notice of the time and place of sale, by publishing the same once each week, in three successive weeks, in (name of the newspaper) a newspaper printed in the county of aforesaid ; and in his or their own names, or as the attorney of the said (name of mortgagor) the grantor, for that purpose by these presents duly authorized, con- stituted and appointed, to make and deliver to the purchaser or purchasers thereof, FORMS OF MORTGAGES, ETC. 501 a good and sufficient deed or deeds of conveyance for the same in fee sin. pie; and out of the money arising from such sale, to retain the said sum of dollars, or the part thereof remaining unpaid, and also the interest then dee on the same, together with the costs and charges of advertising and selling the same premises ; rendering the surplus of the purchase-money, if any there be, ever and above said sum and interest as aforesaid, together with a true and particular account of said sale and charges, to the said (name of the mortgagor) the grantor, his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said (name of the mortgagor) the grantor, and his heirs and assigns, and all other persons claim- ing or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. And Provided Also, That until some breach of the condition of this deed, the grantee shall have no right to enter and take possession of the premises^and hold the same. In Witness Whereof, We the said (name of mortgagor) and (name of & wife) wife of the said (name of mortgagor') in token of her release of all right and title of or to both dower and homestead in the granted premises, have hereunto set our hands and seals this day of hi the year of our Lord eighteen hundred and (Signature of mortgagor.") (Seal.) (Signature of wife of mortgagor.) (Seal} Executed and Delivered in Presence of ss. 18 Then personally appeared the above-named and acknowl- edged the above instrument to be free act and deed, before me, Justice of the Peace. (145.) Mortgage by Indenture, with Power of Sale and Interest and Insurance Clause, to secure a Bond. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the mortgagor) party of the first part, and (name, residence, and occu- pation of the mortgagee) party of the second part : Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of (amount of debt due on the bond) dollars lawful money of the United States, secured to be paid by his certain bond or obli- 502 MORTGAGES OF LAND. gation bearing even date with these presents, in the penal sum of (amouit of penalty) lawful money as aforesaid, conditioned for the payment of the said first- mentioned sum of (amount of debt due on the bond) lawful money as aforesaid, to the said party of the second part, or his executors, administrators, or assigns, on the day of which will be in the year one thousand eight hundred and and interest thereon to be computed from at and after the rate of per cent per annum, and to be paid (here set forth the time and terms of the payment) And it is Thereby Expressly Agreed, That should any default be made in the payment of the said interest, or of any part thereof, on any day whereon, the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sura of (amount of the debt) with all arrearage of interest thereon, shall, at the option of the said party of the second part, or his executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, any thing thereinbefore contained, to the contrary thereof in any wise notwithstanding : As by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now this indenture witnesseth, that the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in con- sideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, 'bargain, sell, alien, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107, deeds of land) Together with all and singular the tenements, hereditaments, and appurte- nances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof: and also all the estate, right, title, interest, property, possession, claim, and demand whatso- ever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : to have and to hold the above granted, bargained, and described premises, with the appurte- nances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof forever : Provided Always, and these presents are upon this express condition, that if the said party of the first part, his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, his executors, administrators or assigns, the said sum of money mentioned in the condition of the said bond FOEMS OF MORTGAGES, ETC. 503 I or obligation and the interest thereon, at the time and in the manner mentioned in the said condition according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said (name of the mortgagor') for himself and his heirs, executors, and administrators, does covenant and agree, to pay unto the said party of the second part, or his executors, administrators, or assigns, the said sum of money and inter- est as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns, therein, at public auction, according to law. And as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance in the law for the same, in fee simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be), unto the said party of the first part, his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, and his heirs and assigns, and all other persons claiming or to claim the premises or any part thereof, by, from, or under him or them, or either of them. And it is Expressly Agreed by and between the parties to these pres- ents, that the said party of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, by insurers approved by the said party of the second part, and in an amount approved by the said party of 'he second part, and assign the policy and certificates thereof to the said party of the second part ; and in default thereof, it shall be law- ful for the said party of the second part to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand with interest at the rate of per cent per annum. In Witness Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. (Signature of mortgagor.) (Seal) (Signature of mortgagee.) (Seal ) Sealed and Delivered in the Presence of 504 MORTGAGES OF LAND. STATE OF !8S. COUNTY. On the day of in the year one thousand eight hundred and before me personally came to be the individuals described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. (Signature.) (146.) Mortgage to Executors, with Power of Sale. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the mortgagor) party of the first part, and (name and residence of the mortgagee') executor of the last will and testament of (name and residence of the testator) deceased, of the second part ; whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of lawful money of the United States of America, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum (state the terms of the payment ; and if the bond teas made to the testator, state that') as by the said bond or obligation and the condition thereof, reference being thereunto had, may more fully appear. Now this Indenture Witnesseth, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the con- dition of the said bond or obligation with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowl- edged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, release, convey, and confirm, unto the said party of the second part, and his successors and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107, deeds of land) Together with all and singular the tenements, hereditaments, and appurte- nances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof: and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances. To have and to hold the above granted, bargained, and described premises, with the appur- unto the said party of the second part, his successors and assigns, to their FORMS OF MORTGAGES, ETC. 505 only proper use, benefit, and behoof forever. Provided alwavSj and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, or his successors or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time, and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be null and void. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to pay unto the said party of the second part, his successors or assigns, the said sum of money and interest, as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, his successors and assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction, according to law. And as the attorney or attorneys of the said party of the first part, for that pur- pose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance in the law for the same, in fee simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, his heirs, executors, admistra- tors, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. In "Witness Whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written (Signature.) (Seal.) (Signature.) (Seal.) Signed, Sealed and Delivered in the Presence of STATE OF , ~) [-88. COUNTY. ) On the day of in the year one thousand eight hundred and before me personally came to be the individuals described in, and who executed the foregoing instrument, and ackcowledged that they executed the same as their free act and deed. (Signature.) 506 MORTGAGES OF LAND. (147.) Mortgage of a Lease. This Indenture, Made the day of in the year one thousand eight hundred and between (name, resi(L nee, and occupation of mortgagor) party of the first part, and (name, residence, and occupation of mortgagee) party of the second part: Whereas, (name, residence, and occupation of the lessor of the lease to be mortgaged) did, by a certain indenture of lease, beaming date the day of in the year one thousand eight hundred and demise, lease, and to farm let, unto the said party of the first part, and to his executors, administrators and assigns, all and singular the premises hereinafter mentioned and described, together with their appurtenances : To have and to hold the same unto the said party of the first part, and to his executors, administrators and assigns, for and during and until the full end and term of years, from the day of and fully to be complete and ended, yielding and paying therefor unto the said (name of the lessor) and to his heirs, executors, adminis- trators or assigns, the yearly rent or sum of (slate the rent, and the times, or terms of the payments) And Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of dollars, lawful money of the United States of America, secured to be paid by his certain bond or obliga- tion bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first mentioned sum of (here give the amount of the debt to be paid) as by the said bond or obli- gation and the condition thereof, reference being thereunto had, may more fully appear. Now this Indenture Witnesseth, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid, by the said party of the second part, at or before the enscaling and delivery of these presents, the receipt whereof is hereby acknowl- edged, has granted, bargained, sold, assigned, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer and set over unto the said party of the second part, the estate or premises leased and transferred by said indenture of lease, that is to say (here describe the premises in the same manner in which they are described in the lease), together with all and singular the edifices, buildings, rights, members, privileges and appurtenances thereunto belonging, or in any wise appertaining; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the said demised premises, and every part and parcel thereof, with the appurtenances ; and POEMS OF MOBTGAGES, ETC. 507 also the said indenture of lease, and every clause, article and condition therein expressed and contained. To Have and to Hold the said indenture of lease, and other hereby granted premises, unto the said party of the second part, his executors, administrators and assigns, to his and their only proper use, benefit and behoof, for and during all the rest, residue, and remainder of the said term of years yet to come and unexpired ; subject, nevertheless, to the rents, covenants, conditions and provisions hi the said indenture of lease mentioned. Provided always, and these presents are upon this express condition, that if the said party of the first part shall well and truly pay unto the said party of the second part the said -sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then and from thenceforth these presents, and the estate hereby granted, shall cease, determine, and be utterly null and void, any thing here- inbefore contained to the contrary in any wise notwithstanding. And the said party of the first part does hereby covenant, grant, promise and agree to and with the said party of the second part, that he shall well and truly pay unto the said party of the second part the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And that the said premises hereby conveyed now are free and clear of all incumbrances whatsoever, and that the said party of the first part has good right and lawful authority to convey the same in manner and form hereby conveyed. And if default shall be made in the payment of the said sum of money above mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to sell, transfer, and set over, all the 'rest, residue and remainder of the said term of years then yet to come, and all other the right, title and interest of the said party of the first part, of, in and to the same, at public auction, according to the act in such case made and provided : and as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted and appointed, to make, seal, execute and deliver to the purchaser or purchasers thereof, a good and sufficient assignment, transfer, or other conveyance in the law, for the same premises, with the appurtenances ; and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be), unto the said party of the first part, or his assigns ; which sale, so to be made, shall be a perpetual bar, both in law and equity, against the said party of the first part, and against all persons claiming or to claim the premises, or any part thereof, by, from, or under him or them, or any of them. In Witness "Whereof, The said party of the first part to these presents has icreunto set his hand and seal the day and year first above written. {Signature.) (Seal.) Signed, Sealed and Delivered in the Prestnce of 34 508 MOETGAGES OF LAND STATE OF 88. COUNTT OP On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. (Signature.) (148.) Mortgagee's Deed, under a Power of Sale. This Indenture, Made this day of hi the year of our Lord one thousand eight hundred and between (name and occupation of the mortgagee) of the County of and State of party of the first part, and (name and occupation of the grantee) of the County of and State of of the second part. "Witnesseth, That whereas (name and occupation of the owner and mortgagor who gave to the mortgagee the power now exercised) of the County of and State of did, by a certain deed, dated the day A.D. 18 , which deed is recorded hi the recorder's office of the County of in the State of on the day of A.D. 18 , hi book of at page , grant, sell and convey to the said party of the first part all the premises hereinafter described, to secure the payment of a certain debt (or note, or bond) in said deed particularly mentioned, and upon certain terms in said deed particularly declared ; and whereas default hath been made in the payment of said debt (note or bond), the said premises were, by said party of the first part, duly advertised for public sale at the door of the court house in the County of and State of on the day of A.D. 18 in the manner prescribed by said deed, and were, upon the day and year and at the place last mentioned aforesaid, hi pursuance of said notice, sold at public sale, and at said sale the said party of the second part was the highest and best bidder therefor, and bid for the tract first hereinafter named, the sum of dollars Now Therefore These presents witness, that the said party of the first part, in pursuance of the power and authority hi him vested hi and by the said deed, and in consideration of the sum of dollars, to the said party of the first part paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath released and quitclaimed, and FORMS OP MORTGAGES, ETC. 509 doth hereby convey, remise, release and quitclaim to the said paity of the second part, his heirs and assigns forever, all the right, title and interest, as well in law as in equity, which the said party of the first part hath acquired by virtue of the deed above mentioned, of, in and to all that certain tract , piece or parcel of land situated in the County of and State of and described as follows, to wit (here describe the premises as directed in Form 107, of deeds of lands). Together with all and singular the tenements, hereditaments and appurte- nances thereunto belonging or in any wise appertaining, and the reversions, remainders, rents, issues and profits thereof; and also all the estate, right, title> interest, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the same and any and every part thereof, with the appurtenances, which the said party of the first part acquired by virtue of said deed : To Have and to Hold the aforesaid right, title and interest of the said party of the first part, unto the said party of the second part, his heirs and assigns forever, as full and absolutely as the said party of the first part can, by virtue cf the power and authority in him by said deed vested, convey the same. In Witness Whereofj The party of the first part hath hereto set his hand and seal the day and year first above written. (Signature of setter.) (Seal.) Signed, Sealed and Delivered in Presence of Sss. STATE OF COUNTY. On tho day of eighteen hundred and sixty- , before me of the County of in the State of appeared who is personally known to me to be the real person whose name is subscribed to the foregoing instrument of writing, as having executed the same, and then acknowledged the execution thereof as his free act and deed, for the uses and purposes herein men- tioned. (Signature.) (149.) Assignment of Mortgage, Short Form. Know all Men by these Presents, That I, (name, residence and occupation of the assignor) the mortgagee named in a certain mortgage deed, given by (name, residence, and occupation of the mortgagor) to said (name of assignor) to secure the payment of dollars 100, dated the day of in the year of our Lord eighteen hundred and recorded in the registry of deeds for the County of lib. fol. in consideration of the sum of dollars loo to 510 MORTGAGES OF LAND. me pai3 by (name, residence, and occupation of buyer and assignee") the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer, set over and convey unto said (name of assignee') and his heirs and assigns, said mortgage deed, the real estate thereby conveyed, and the promissory note, debt and claim thereby secured, and the covenants therein contained. To Have and to Hold the same to him the said (name of assignee) and bis heirs and assigns, to his and their use and behoof forever ; subject never- theless to the conditions herein contained, and to redemption according to law. In "Witness "Whereof, I the said have hereunto set my hand and seal this day of in the year of our Lord eighteen hundred and (Signature.) (Seal.) Executed and Delivered in Presence of ss. A.D. 18 Then personally appeared the above-named and acknowledged the above instrument to be his free act and deed. Before me, , (Signature.) (150.) Assignment of Mortgage, with Poiver of Attorney. Know all Men by these Presents, That I, (name, residence, and occupation of assignor) party of the first part, in consideration of the sum of lawful money of the United States, to me in hand paid by (name, resi- dence, and occupation of assignee) of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto tle said party of the second part, his executors, administrators, and assigns, a certain indenture of mort- gage, bearing date the day of one thousand eight hundred and sixty- made by (here state Qie name of the mortgagor, and briefly describe the mortgage deed, and stale the volume and page where it is registered) to which reference may be made, together with all the right, title, interest, and estate of said party of the first part, in and to the premises described and conveyed in and by said indenture of mortgage. Together with the bond (or note) therein described and the money due and tc grow due thereon, with the interest accruing or accrued, to have and to hold the same, unto the said party of the second part, his executors, administrators, and assigns, for his and their use, subject only to the proviso in the said indenture of mortgage mentioned : and I do hereby make, constitute, and appoint the said party of the second part, my true and lawful attorney, irrevocably in my name or other- wise, but at his own proper 3osts and charges, to have, use, and take all lawful ways FOKMS OF MOETGAGES, ETC. 511 and means for the recovery of the said money and interest ; and in cae of jnyment, to discharge the same as fully as I might or could do if these presents were not made. In "Witness "Whereof, I have hereunto set my hand and seal the lay of one thousand eight hundred and sixty- (Signature.) (Seal.) Signed, Sealed and Delivered in the Presence of STATE OF , } [-88. COUNTY. ) On this day of eighteen hundred and sixty- aersonally appeared before me known to me to be the person who signed and sealed the foregoing assignment of mortgage, and acknowledged the execution of the same for the uses and purposes therein set forth. Given under my hand and seal at in said county aforesaid. (Signature.) (Seal.) (151.) Assignment of Mortgage by a Corporation. Know all Men by these Presents, That the (legal name of the corporation assigning) existing as a corporate body, in and under the laws of the State of of the first part, for and in consideration of the sum of lawful money of the United States, to the said corporation paid by (name, residence, and occupation of assignee) of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by (here state the name of the mortgagor, and briefly describe the mortgage deed) the same being duly registered in the office of the register of deeds for the County of and State of to which said indenture of mortgage, reference may be had. Together with the bond or obligation therein described, and the moneys due, and to grow due thereon, with the interest : to have and vo hold the same unto the said party of the second part, his heirs and assigns, for his and their own use, subject only to the proviso in the said indenture of mortgage mentioned. And the said parties of the first part do hereby make, constitute, and appoint the said party of the second part their true and lawful attorney, irrevocable, in the name of the said parties of the first part, or otherwise, but at the proper costs and charges of the said party of the second part, to have, use, and take all lawful ways ani mean 512 MORTGAGES OF LAXD. for the recovery of the said money and interest, and in case of payment to discharge the same as fully ae the said parties of the first part might or could do if these presents were not made. In "Witness Whereofj the said parties of the first part have caused their common seal to be affixed to these presents, and the same to be signed by their attorney and president (or other officer) the day of in the year one thousand eight hundred and (Signature.) (Seal of the Corporation.) Signed, Sealed and Delivered in Presence of STATE o , ) >88. COUKTY. ) On the day of in the year one thousand eight hundred and before me came with whom I am personally acquainted, and known to me to be the attorney and of the within named corpora- tion, who being by me duly examined says, that the seal which is affixed to the within assignment is the corporate seal of the said corporation, and was so affixed by their authority, and acknowledged that he executed the same as their act and deed. (Signature.) (152.) Discharge of Mortgage, Short Form. The Debt secured by the mortgage, dated and recorded with deeds, lib. fol. has been paid to me by (name of mortgagor) and in consideration thereof I do discharge the mortgage and release the mortgaged premises to said (name of mortgagor) and his heirs. Witness my hand and seal A.D. 18 (Signature.) (Seal.) Executed and Delivered in Presence of 88. A.D. 186 Then said acknowledged the foregoing instrument to be free act and deed. Before me, (Signature.) (153.) Helease and Quitclaim of Mortgage, as Used in the Western States, Know all Men by these Presents, That I (name of mortgagee) of the County of and State of for and in con- eideration of one dollar, to me in hand paid, and for other good and valuable FOKMS OF MORTGAGES, ETC. 513 considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto (name of assignee or releasee) of the County of and State of all the right, title, interest, claim, or demand whatsoever I may have acquired in, through, or by a certain indenture or mortgage deed, bearing date the day of A.D. 186 , and recorded in the recorder's office of County, in book of page to the premises therein described, and which said deed was made to secure a certain promissory note (or bond) bearing even date with said deed, for the sum of dollars and cents. "Witness my hand and seal this day of A.D. 186 (Signature.) (Seal.) Sss. STATE OF COUNTY. I, in and for said county in the State aforesaid, do hereby certify that who is personally known to me as the same person whose name is subscribed to the foregoing deed, appeared before me, this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and pur- poses therein set forth. Given under my hand and seal this day of A.D. 186 (Signature.) (Seal) >88. (154.) Discharge of Mortgage, as used in the Middle States. STATE OF COUNTY OF I, (name, residence, and occupation of mortgagee) do hereby certify that a certain indenture (or deed) of mortgage bearing date the day of one thousand eight hundred and made and executed by (here stale the name of the mortgagor, and describe the deed briefly) and recorded in the office of County of in lib. of mortgages, page on the day of in the year one thousand eight hundred and o'clock, in the i.* paid. And I do hereby consent that the same be discharged of record. Dated the day of 18 (Signature.) (Seal) In Presence of 514 MORTGAGES OF LAND. STATE OF ") >ss. COUNTY OF ) On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. (Signature.) (155.) Discharge and Satisfaction of Mortgage by a Corporation. We, (the legal name of (he corporation) a corporate body existing within and under the laws of the State of Do liereby Certify, That a certain mortgage, bearing date the day of in the year one thousand eight hundred and made and executed by (here stale lite name of the mortgagor, and describe the mortgage briefly') and recorded in the office of the register in and for the County of in lib. of mortgages, page on the day of is paid. In Witness Whereof, The said corporation has caused its corporate seal to be hereunto affixed, this day of in the year one thousand eight hundred and (Signature of attorney.') (Seal of corporation.') Witnessed by STATE OF ) [-83. COUNTY OF ) On the day of in the year one thousand eight hundred and before me personally came to me known, who, being by me duly sworn, did depose and say, that he resided in the city (or town) of that he is the attorney and president (or other officer) of the said corporation ; that he knew the corporate seal of the said corporation, and that the seal affixed to the foregoing instrument was such corpo- rate seal ; that it was affixed by him by order of the said corporation, and that he signed his name thereto by the like order. (Signature.) (156.) Release of a Part of the Mortgaged Premises. This Indenture, Made the day of in the year of our Lord cue thousand eight hundred and between (name, residence and occupation of the mortgagee and releasor) party cf the first FORMS OF MORTGAGES, ETC. 515 part, and (name, residence and occupation of the mortgagor to whor. t'^ release is given) party of the second part : Whereas, The said party of the second part, by indenture of mortgage, bear- ing date the day of one thousand eight hundred and for the consideration therein mentioned, and to secure the payment of the money therein specified, did convey certain lands and tenements, of which the lands hereinafter described are part, unto the said party of the first part, And Whereas, The said party of the first part, at the request of the said party of the second part, has agreed to give up and surrender the lands hereinafter described unto the said party of the second part, and to hold and retain the residue of the mortgaged lands as security for the money remaining due on the said mort- gage: Now this indenture witnesseth, that the said party of the first part, in pursuance of the said agreement, and in consideration of to him duly paid at the time of the ensealing and delivery of these presents, thd" receipt whereof is hereby acknowledged, has granted, released, quitclaimed and set over, and by these presents does grant, release, quitclaim, and set over, unto the said party of the second part, all that part of the said mortgaged land (here describe carefully and accurately all that part of the mortgaged land which i' is intended to release, distinguishing it from that which is retained) Together with the hereditaments and appurtenances thereto belonging ; and all the right, title and interest of the said party of the first part, of, in and to the same, to the intent that the lands hereby conveyed may be discharged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as heretofore. To have and to hold the lands and premises hereby released and conveyed, to the said party of the second part, and his heirs and assigns to his and their only proper use, benefit and behoof forever, free, clear and discharged of and from all lien and claim, under and by virtue of the indenture of mortgage aforesaid. In Witness Whereof, The said party of the first part has hereunto set his hand and seal on the day of in the year (Signature.) (Seal.) Executed and delivered in presence of STATE OF 88. COUNTY OF On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. (Signature.) 516 MORTGAGES OP LAND. (157.) Deed extending a Mortgage. i This Indenture, Made this day of A.D. 18 by and between (name, residence, and occupation of the mortgagee) the owner and holder of a certain promissory note (or bond) for the principal sum of dollars, given by (name of mortgagor) and secured by a mortgage of certain real estate in in the County of and State of dated day A.D. 18 , and recorded in Registry of Deeds, for the County of lib. foL party of the first part, and the said (name of mortgagor) party of the second part, "Witnesseth, That the said parties, for themselves and their representatives, hereby mutually agree that the tune for the payment of the principal of said note and mortgage debt shall be and the same is hereby extended for the term of years from the day of A.D. 18 , and that the same is to bear interest from said date at the rate of per cent per annum, payable on the day of and the day of in every year, until said principal sum shall be fully paid. And the said party of the second part hereby covenants and agrees that he will not require the holders of said note and mortgage to receive payment of said mort- gage debt during said extended term ; that he will punctually pay the interest now due, and to grow due thereon, at the tunes and at the rate aforesaid ; that he wil) keep the mortgaged premises hi good repair, and insured against fire, and the taxes thereon duly paid, according to the provisions of said mortgage, and that at the expiration of said extended term he will pay the said mortgage debt, with all interest then due thereon. It is expressly understood and agreed that nothing herein contained shall be con- strued to impair the security of said party of the first part, or his executors, admin- istrators, or assigns, under said mortgage, or to affect or impair the lien on the real estate therein described which he has by virtue of said mortgage, nor affect or im- pair any rights or powers which he may have under the said note and mortgage for the recovery of the mortgage debt, with interest, in case of non-fulfilment of thia agreement, or of any of the provisions hereof, by said party of the second part. In Witness "Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of mortgagee.) (Seal.) (Signature of mortgagor.) (Seal.) Signed, Sealed and Delivered in Presence of Commonwealth of 88. 18 Personally appeared the above-named and acknowledged the above instrument to be their free act and deed. Before me, (Signature.) LEASES. 517 CHAPTER XXXI. A LEASE is a contract whereby one party (the tenant) takes the possession of the land and all that is on it, and the other party (the landlord) gives possession of the land, and reserves (that is, agrees to take) a rent, which the tenant pays him by way of compensation. All things usually comprehended under the words " house," " farm," " land," " store," &c., pass to the tenant, where such words are used, unless there be an express exception. And inaccuracies as to qualities, names, measurements, or amounts, will be corrected, if there be enough in the lease to ^ake the purposes and intentions of the parties certain. And letting to hire any thing to be used car- ries with it all those appurtenances and accompaniments necessary for the proper use and enjoyment of the thing which belong to the letter. A landlord is bound to put his lessee into possession with good title. If he covenants " to renew " generally, this means a renewal of the lease on the same terms, but without inserting in the new lease another covenant of renewal. A landlord is under no legal obligation to repair the house, unless he expressly agrees to do so. If the house is never so much dilapi- dated and disfigured as to paper, paint, &c., and locks and blinds and doors and windows are out of order, and the like, the tenant can claim nothing of the landlord. Even if it becomes wholly un- inhabitable by no fault of the house or of the landlord, as if it burns up, or is blown down, or if the overflow of a stream ruins a field or a farm, still the landlord is not bound to do any thing, unless by special agreement. But if the house is uninhabitable by its own fault, as if it has a noisome and unwholesome stench, or, according to one case, if it be overrun with rats, or so decayed as to. be open to the weather, it would seem to be the law of this country, that the tenant may leave the house ; always provided, however, that the objection or defect be 518 LEASES. not one which the tenant knew or anticipated, or would have known or expected if he had made reasonable inquiry and investigation before he took his lease. And perhaps no tenant can leave his house, or refuse or abate his rent, for any objection or difficulty arising after he hires the house. But, strange to say, the important question what the tenant's rights are in such a case is still uncertain. If the house be wholly destroyed, the tenant must still pay rent, under an ordinary lease ; because the law looks upon the land as the principal thing, and the house as secondary. And not only so, but if the tenant covenants " to return and redeliver the house at the end of the term, in good order and condition, reasonable wear and tear only excepted," he would be bound under this agreement to rebuild the house if it were burned down. But recently all well- drawn leases have clauses providing that the rent shall cease or be abated while the premises are uninhabitable from fire or any other unavoidable calamity. A similar exception is added to the clause about returning the house, at the end of the lease. If this excep- tion be in, a tenant is not bound to rebuild, even if the house be burned through the carelessness of himself or his servants. A tenant of a room, or of a suite of chambers, is entitled to the use of all the appurtenances and accommodations which fairly go with it, as of the front door and entry, water-closets, and of all windows, 8S. COUNTY OF I, Justice of the Peace in and for said county, do hereby certify that this lase and mortgage was duly acknowledged before me by the above-named (name of lessee) this day of A.D. 18 (Seat) (171.) A Building Letter. This Deed of Lease, Made and entered into, in duplicate, this day of A.D. 186 , between (name of lessor) of County of and State of party of the first part, and (name of lessee) of County of and State of party of the second part : "Witnesseth, That the said party of the first part, in consideration of the covenants, agreements, and stipulations hereinafter mentioned, as well as the yearly rent of dollars, to be paid to him in four equal quarterly pay- ments in each year (the first payment to be made on the day of A.D. 186 ), doth by these presents lease to the said party of the second p;irt for the term of years, which said term begins on the day of 186 , the following-described lot of land, to wit (here describe the premises as in Form 156) The said party of the second part, for himself and his heirs, hereby covenants with said lessor and his heirs to pay said rent as aforesaid, and also to pay all city, county, and State taxes, and all other taxes and demands of every description, nature, or kind whatever, which may from time to time be legally required or demanded of said premises, whether general tax or special tax. Every failure, first, to pay the said rent, or any part thereof, when it is respec- tively made payable; or, second, to pay the said city, county, and State taxes, and nil other taxes and demands, or any part thereof (legally required or demanded of said premises, within the year the same shall become due, assessed to either said lessor, his heirs or representatives, or to said lessee or his representatives) ; or, third, to keep and perform any of the other covenants, agreements, or stipulations herein mentioned, shall make and create a forfeiture of this lease, and a termination of the term for which the above premises were let, and all the estate hereby con- veyed shall be absolutely void, if so determined, at any day or time however distant, after such failure, by notice in writing to that effect, given by said lessor, his heirs or assigns, to said lessee or his assigns ; which said notice may be served by posting a copy or duplicate of the same up at one of the most public places on said prem- ises, or by delivering a copy or duplicate of such notice to said lessee or his assigns. This lease of said premises, or any part thereof, is not to be assigned, under FOEMS OF LEASES. 545 penalty of forfeiture, without the written consent of said lessor, his heirs or assigns. At the expiration of this lease, the said premises to be delivered to said lessor, hig heirs, or assigns. The said lessee, and all who hold under him, hereby engage to pay double rent for every day they or any one else in their name shall hold on to the whole or any part of said premises, after the expiration of this lease, or after forfeiture thereof. The said lessee is, under penalty of forfeiture, bound to keep said premises free from any disorderly, bawdy, or gambling establishments, dram-shops, tippling-shops, beer-houses, or any nuisances whatsoever. And in case of any forfeiture of this lease, the said lessor, his heirs, and assigns, may forthwith take possession of said premises, with all the improvements thereon, and shall be entitled to the same, any custom, usage, or law, to the contrary notwithstanding. All improvements erected on said premises by said lessee or his assigns, or by any one who may claim under them, are bound for the payment of each quarterly instalment of rent, and for the city, county, and State taxes, and all other taxes and demands as aforesaid, and for any arrears of rent or taxes ; and in case of the punctual payment of the rent and taxes, as herein specified, the said lessee or his assigns is hereby authorized to remove all such improvements (and no others), at the expiration of this lease, which he or any one who may claim under him, may have erected on said premises during said term. In Testimony Whereof, The parties hereto have hereunto set their hands and seals to duplicate leases the day and year aforesaid. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) In Presence of (172.) This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name and residence of the kssor) of the first part, and (name and residence of the lessee) of the second part, witnesseth, That the said party of the first part, for and in consideration of the covenants and agreements hereinafter contained on the part of the said party of the second part, and of one dollar in hand paid to the said party of the first part, the receipt whereof is hereby acknowledged, has granted and conveyed, and by these presents does grant and convey to the said party of the second part, his heirs, executors, administrators, and assigns, the right of entering in and upon the lands hereinafter described, for the purpose of searching for min- ral and fossil substances, and of conducting mining and quarrying operations, to any extent he or they may deem advisable (but not to hold possession of any part of saidMands for any other purpose whatsoever) paying for the site of buildings of any kind, necessary thereto, a reasonable rent. 546 LEASES. The said lands are situated (here state the situation of the premises leased, and describe them by metes and bounds, dimensions, and references to other boundaries, so as to distinguish them perfectly) And the said party of the second part hereby agrees that he or his heirs, execu- tors, administrators, or assigns will pay or cause to be paid to the said party of the first part, his heirs or assigns, an annual rent of the amount of dollars, iu four equal quarterly payments, payable severally on the following day 9 (here state tiie days when the payments are to be made, or whatever other terms or times are agreed upon), and also covenants that no damage shall be done to or upon saia lands aud premises, other than may be necessary in conducting said operations. And it is agreed and covenanted by and between the parties hereunto, that this lease shall be and remain hi full force and effect (subject to the proviso hereinafter stated) years, from the date hereof, and no longer. But the said parties of the first and the second part, each for themselves, their heirs, executors, administrators, and assigns, covenant and agree, and this indenture is made with this express proviso, that if no mineral or fossil substance be mined or quarried, as now contemplated by said parties, within the period of years, from the present tune, then these presents, and every thing contained herein, shall cease and be forever null and void. In Testimony Wliereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) Signed, Sealed and Delivered in Presence of (173.) A Lease of Land supposed to contain Oil, Salt, or other Minerals. Articles of Agreement, Made and concluded this day of A.D. 186 , between (name of lessor) of the township of County of and State of party of the first part, and (name and residence of lessee) party of the second part. Witnesseth, That the said party of the first part for himself and his heirs, executors, administrators and assigns, for and in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and for the further considera- tion hereinafter mentioned, and on account of covenants hereinafter contained, hereby leases to the said party of the second part, his heirs, executors, administra- tors and assigns, the following-described piece or parcel of land, situated in the township of County of and State of bounded and described as follows (describe the premises as in the preceding Fcrm.) The said land more full]' described in deed of conveyance by (name of the grantor to the lesser) to th said party of the first part, containing acres, FORMS OF LEASES, ETC. 547 more or less, for the purpose of boring, mining, and operating for oil, salt, and other minerals on said land, for the term of years. Said second parties to have the exclusive right to mine for oil, salt, and other minerals, on said land, during the continuance of said term : to have the privilege of taking sufficient coal and wood for conducting said boring and mining opera- tions, and timber-for derricks and mill-frames and for refineries, and the right to erect all necessary buildings upon said premises for carrying on the businesa of boiing for oil, and mining, refining and storing away oil and other minerals ; and to have the necessary roads to and from any well or wells that may be bored, or any mines ; and to have possession whenever they shall be ready to commence operations. And in case successful in obtaining oil or other minerals, agree to deliver to the said party of the first part (here stale (he part or proportion which is to be given to the lessor) of all oil, salt, or other minerals obtained. Said party of the first part to find his own barrels, and remove the oil and other minerals be- longing to him, as often as required by the second parties. And hi case said second parties should not be successful in obtaining oil or other minerals, they shall hare the right to remove all engines, tools, machinery, and buildings. And further, it is agreed that said second parties have the right to sub-lease said land for the pur- pose of boring for oil or other minerals ; the said lessee or lessees being granted all the rights and privileges herein granted to the said party of the second part, Witness our hands and seals this day of 186 . (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) Witnesses. Personally appeared before me, a Justice of the Peaco in and for the township of within the County aforesaid and did acknowledge the signing and sealing of the above agreement to be act and deed. Given under my hand this day of 186 . Justice of Hit Peace. (174.) An Assignment of a Lease* Know all Men by these Presents, That I, (name and residence of assignor) for and in consideration of the sum of dollars, lawful money of tke United States, to me duly paid, by (name and residence of assignee) have sold, and by these presents do grant, convey, assign, transfer and set over, unto the said (name of assignee) a certain indenture of lease, bearing date the day of in the year one thousand eight hundred and made by (name of the lessor in the le<~SJ .issigned) whereby he leases to me the following-described premises (here 548 LEASES. describe the premises briefly), with all and singular the premises therein mentioned and lescribed, and the buildings thereon, together with the appurtenances. To Have and to Hold the same unto the said (the name of the assignee) and his assigns, from the day of for and during all the rest, residue, and remainder yet to come of and in the term of years mentioned in the said indenture of lease, and all my rights and privileges in and under said lease ; subject nevertheless to the rents f covenants, conditions and provisions therein also mentioned. And I do hereby covenant, grant, promise and agree, to and with the said (name of the assignee) that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments, and incumbrances whatsoever. 1 In "Witness Whereof, I have hereunto set my hand and seal this day of one thousand eight hundred and (Signature.) (Seal,) Sealed and Delivered in the Presence of (175.) Landlord's Notice to quit for Non-Payment of Rent ; SJtort Form. STATE OF ss. A.D. 186 To (name of tenant). You being in possession of the following-described premises, which you occupy as my tenant (here describe the premises sufficiently to identify them) in the city (or township) of and county aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid, in fourteen days from this date, according to law, your rent being due and unpaid. Hereof fail not, or I shall take a due course of law to eject you from the same. Witness. (Signature.) (170.) Landlord's Notice to quit for Non-Payment of Rent; anot/ier Form. STATE OF CITY OF (date) 18 You are hereby notified to quit the premises situate (state the situation of the premises, giving township or cily, ami street, and number) which I have leased to you, reserving rent, or pay and satisfy the rent due and in arrear, being $ which amount was due on the day of 18 and is hereby denu nded (you having neglected or refused to pay the amount so reserved, as often as the same has grown due, according to the terms of our contract, and FORMS OF LEASES, ETC. 549 there being no goods on the premises adequate to pay the rent so reserved, except uch articles as are exempt from levy and sale by the laws of this State) within days from the date hereof, or I shall proceed against you as the law directs. Yours, &c. (Signature.) To (name of tenant) (177.) Landlord's Notice to pay Kent due, or quit. STATE OF 88. COUNTY OF (Name of landlord) landlord, against (name of tenant) tenant. Take Notice, That you are justly indebted unto me in the sum of for rent of (home, store, or other premises, describing them generally) from (date when the rent was due and pay able), which you are required to pay on or before the expi- ration of three days from the day of the service of this notice, or surrender up the possession of the said premises to in default of which shall proceed under the provisions of law to recover the possession thereof. Dated this day of 18 (Name of the landlord) Landlord. To (name of the tenant) Tenant, in possession of the premises above specified. (178.) Landlord's Notice to leave at End of the Term. To (name and address of the tenant) SIR, Being in the possession of a certain messuage or tenement, with the appurtenances, situate (describe the premises briefly) which said premises were demised 1o you by me for a certain term, to wit, from the day of A.D. 18 until the ' day of A.D. 18 and which said term will terminate and expire on the day and year last aforesaid, I hereby give you notice, that it is my desire to have again and re- possess the said messuage or tenement, with the appurtenances, and I therefore do hereby require you to leave the same upon the expiration of the said hereinbefore mentioned term. Witness my hand this day of city of A.D. 18. ( Witness ) (Signature.) 550 MORTGAGES OF PERSONAL PROPERTY. (179.) Landlord's Notice to determine a Tenancy at Will. STATE OF ss. A.D. 186 To (name of tenant). You being in possession of the following-described premises, which you occupy as my tenant at will (describing them sufficiently to identify them) in the (city and street) aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid (on such a day, stating here the day as far distant as is made necessary by the requisite length of notice) according to law, it being my intention to determine your tenancy at will. Hereof fail not, or I shall take a due course of law to eject you from the same. ( Witness.) (Signature.) (180.) Receipt for Rent, in Use in New York. Rent payable The tenant mentioned below hereby agrees to pay the rent of the premises occupied and nsed by on the first day of the term; and engages to clean the entries, stairs, stoops, and privy thereof, weekly, in turn with other occupants, and not incumber the same with furniture, fuel, or rubbish, nor keep any hog, dog, or fowl, nor deposit ashes ot garbage on said premises, nor in the sinks or privies, nor split wood on the hearth, floor, ot yard. NEW YORK, 186 Received from (name of tenant paying) dollars, for ' months' rent, from 18 to 18 for (stone, brick, or other) house, No Street, in the city of New York. 9 CHAPTER XXXTT. MOHTCLA-OES OF GOODS JL1VID CTTATTTTT,8, OR. IT was said that mortgages are now often made of personal prop- erty. The instrument need not bo so formal as a mortgage deed of land. Any instrument will answer the purpose, which would suffice as a bill of sale of the property, and which contains, in addi- THE PLEDGE OF PERSONAL PROPERTY. 551 tion to the words of sale and transfer, a clause providing for the avoidance of it when the debt is paid. I append to this chapter forms for this purpose. When the mortgagor of personal property retained possession, it was formerly doubtful what security the mortgagee had. Now, how- ever, it is generally provided by statute, that the mortgagor may retain possession, if the mortgage be recorded. These instruments should always be recorded according to the provisions of the statute of the State in which they are made ; although the general rule would apply to them, that they would operate without record, as to all parties having notice or knowledge of them. The statutes respecting mortgages of personal property always provide for an equity of redemption, which is usually very much shorter than that of land. A frequent period is sixty days. The requirements of the statute in respect to notice, foreclosure, ss. STATE OF y On this day of 186 , before me, the subscriber a personally appeared the within named and made solemn oath (or affirmation) that he verily believes himself to be the original and first inventor of the mode herein described for preventing steam- boilers from bursting, and that he does not know or believe the same was ever before known or used ; and that he is a citizen of the United States [or citizen of other country, as the case may be]. (Signature.) Justice of the Peace. Citizens of the British Provinces should state specifically the provinces of which they are citizens, and not merely that they are subjects of the crown of Great Britain. The oath may be taken befbre any person authorized by law to administer oaths. The oath may be taken in a foreign country before any minister plenipoten- tiary, charge* d'affaires, consul, or commercial agent, holding com- mission under the government of the United States, or before any notary public of the country in which the oath is taken, being at- tested in all cases by the proper official seal of such notary. Appli- cants for patents, upon paying the final fee, should notify the office how many copies of the specifications they desire to have furnished them. DRAWINGS. The applicant for a patent is required by law to furnish a draw- ing, or drawings, where the nature of the case admits of them. They should be neatly and artistically executed, in fast colors, generally in perspective, and with such detached sectional and plain views as to clearly show what the invention is, its construction and operation. Each part must be distinguished by the same number or letter wherever it appears in the several drawings. The name of the THE MODEL. 563 invention should be written at the top, the shortest side being con- sidered as such. Each sheet should be fifteen inches from top to bottom, and ten inches across, that being the size of the patent ; or it may be twenty inches across, so as to be folded. One of the drawings should be on thick drawing-paper, sufficiently stiff to sup- port itself in the portfolios of the office, for which it is intended. Tracings upon cloth pasted on thick paper are not admitted. This must be signed by the applicant, and attested by two witnesses, and must be sent with the specification. The other duplicate need not be forwarded until the patent is ordered to issue, to which it is to be attached. It must have, for that purpose, a margin of one inch on the right hand, and should be on tracing-muslin, which will bear folding and transportation, and not on paper. The above are the rules imposed by the office, being found neces- sary for the convenient transaction of their business. And appli- cants are advised to employ competent artists to make the drawings, as they will be returned if not executed in conformity with these rules. Thick drawings should never be folded for transmission. MODXC A model is required in every case where the nature of the inven- tion admits of such illustration. It must be neatly and substantially made of durable material, and not more than one foot in length or in height. If made of pine or other soft wood, it should be painted, stained, or varnished. Models filed as exhibits, in interference and other cases, may be returned to the applicant, at the discretion of the commissioner. A working model is always desirable, in order to enable the office fully and readily to understand the precise operation of the machine. The name of the inventor, and also of the assignee (if assigned), and also the title of the invention, must be affixed upon it in- a per manent manner. When the invention is a composition of matter, a specimen of each of the ingredients and of the composition must accompany the application, and the name of the inventor and of the assignee (if there be one) must be permanently affixed thereto. 564 THE LAW OF PATENTS. When a work of design can bo sufficiently represented by a draw- ing, in the judgment of the commissioner, a model will not be re- quired by him. y photographs are used by the applicant for the illustration of works of design, they should be pasted upon thick drawing-paper, or thin Bristol-board, of the size prescribed for drawings ; but, in every case where this mode of illustration is employed by an appli- cant, he will do well to deposit in the office the glass or other " negative " from which the photograph is printed, so that exact official copies may be made therefrom when desirable. COMPIJETION OF THE APPLICATION. No application is examined, nor is the case placed upon the files for examination, until the fee is paid, the model or specimen depos- ited, and the specification, with the petition, oath, and drawings (when required), filed. It is desirable that every thing necessary to make the application complete should be deposited in the office at the same time. Of the Examination. All cases in the Patent Office are arranged in classes, which aie taken up for examination in regular rotation ; those in the same class being examined and disposed of, as far as practicable, in the order in which the respective applications are completed. When, however, the invention is deemed of peculiar importance to some branch of the public service, and when, for that reason, the head of some department of the government specially requests immediate action, the case will be taken up out of its order. These, with appli- cations for re-issue, and for inventions for which a foreign patent has been issued, are the only exceptions to the rule above stated in relation to the order of examination. When an application has been once rejected, either in whole or in part, and the applicant desires a second examination, either with or without amendment, he will be entitled to it with as little delay as may be practicable, so that he may be in condition to appeal, if desirable, without loss of time. When an application has been finally decided, the office will retain the original papers, furnishing the applicant copies if he desires them at the usual expense. APPEALS. 565 When a patent is granted, it will be transmitted to the patentee, or to his agent, having a full power of attorney authorizing him to receive it. Protests. The office cannot stay the regular proceedings on applications for letters-patent in consequence of protests founded upon mere exparte statements ; but, where affidavits of disinterested persons are received, they will be considered and allowed such weight as they may seem entitled to. "Withdrawals. / Although an application be rejected, no money paid thereon, nor for a design, nor for a re-issue, can be withdrawn from the patent office by the applicant. Stamps. Revenue stamps must be attached as follows : First, A stamp of the value of fifty cents is required upon each power of attorney authorizing an attorney or agent to transact busi- ness with this office relative to an application for a patent, re-issue, or extension. Second, No assignment directing a patent to issue to an assignee will be recognized by this office, nor will any assignment be recorded, unless stamps shall bo affixed of the value of five cents for every sheet or piece of paper upon which the same shall be written. Third, The person using or affixing the stamp must cancel the same, by writing thereupon the initials of his name and the date. Appeals. After an application for a patent has been twice rejected by the examiner having it in charge, it may, at the option of the applicant, be brought before the board of cxauiiners-in-chief, on payment of a fee often dollars. For this purpose, a petition in writing must be filed, signed by the party or his authorized agent or attorney. 566 THE LAW OF PATENTS. (188.) Form of Appeal to the Examiner s-in- Chief* To THE COMMISSIONER OF PATENTS. SIR, I hereby appeal to the examiners-in-chief from the decision of the prin- cipal examiner in the matter of my application for a patent for an improvement in (here state the subject of the invention) rejected a second time on day or* Respectfully, (Signature.) The examiners-in-chief will consider the case as it was when last passed upon by the primary examiner, merely revising his decisions so far as they were adverse to the applicant. All cases which have been acted on by- the board of examiners-in- chief may be brought before the commissioner in person, upon a written request to that effect, and upon the payment of the fee of twenty dollars required by law. A decision deliberately made and approved by one commissioner will not be disturbed by his successor. The only remaining remedy will be by appeal in those cases allowed by law to the judges of the Supreme Court of the District of Colum- bia. The mode of appeal from the decision of the office to the judges of the Supreme Court of the District of Columbia is by giving written notice thereof to the commissioner, filing in the patent office, within thirty days after notice of the decision, reasons of ap- peal, and paying to him the sum of twenty-five dollars. Printed forms of notice of appeal, of the reasons of appeal, and of the pe- tition, will be forwarded from the patent office to any one wishing to make an appeal, on his request. The following rules were adopted by the Supreme Court in appeals from the decisions of the Com- missioner of Patents, and they are given here as they may be useful guides to the applicant or his counsel. The party desiring to appeal from the decision of the Commis- sioner of Patents must give written notice thereof to the com- missioner, accompanied with his petition to the Supreme Court of the District of Columbia to grant him a hearing, and file the reasons of appeal, and pay the fee of twenty-five dollars. APPEALS. 567 The appellant, previous to any action on, and preparatory to the hearing of any appeal, must comply with the requisites of the law in the patent office, and his petition must state concisely 1. The application for the patent ; 2. Its nature, and, if a case of interference, 3. The residence of the party interested ; 4. The commissioner's refusal ; 5. The prayer of appeal ; 6. NoticeHhereof to the commissioner ; 7. The filing of the reasons of appeal in the patent office ; and, 8. The payment into the office of the sum required by law. To every petition must be annexed a certificate of the proper officer that the requisitions of the law have been complied with, or an affidavit of the truth of the facts stated in the petition. No notice to the commissioner will be issued until such certificate or affidavit be made or produced. The appeal will be tried upon the evidence which was in the case and produced before the commissioner. The appellant must file his argument, in writing, within five days after the commissioner shall send in his report, and the papers, models, and drawings or specimens, or within five days after the day of hearing, which argument must state the facts and law relied on, together with the authorities in support of the same. In contested cases the appellee shall file his argument, in writing, within ten days after the appellant shall have filed his argument. At the hearing, oral arguments may be made, not to occupy more than one hour for each counsel engaged, and not more than two counsel in each case will in any case be heard, and in no case will oral argu- ment be heard unless the opposite party shall have reasonable notice thereof, through the mail or otherwise, from the party desiring to be heard orally ; or where oral arguments are ordered by the court, the appellant shall give the notice. The court, having fully heard the appeal, shall return all the papers to the commissioner, with a certificate of its proceedings and decisions, which shall be entered of record in the patent office, and such decision, so certified, shall govern the further proceedings of the commissioner in such case. 568 THE LAW OF ?ATENTS. Interferences. When each of two or more persons claims to be the first in- ventor of the same thing, an " interference " is declared between them, and a trial is had before the examiner. Nor does the fact tbat one of the parties has already obtained a patent prevent such an interference ; for, although the commissioner has uo power to cancel a patent already issued, he may, if he finds that another per- son was the prior inventor, give him also a patent, and thus place them on an equal footing before the courts and the public. If an applicant for a re-issue embraces in his amended specification any new or additional description of his invention, or enlarges his claim, or makes a new one, and thereby includes therein any thing which has been claimed in any patent granted subsequent to the date of his original application, as the invention of another person, an inter- ference will be declared between the application and any unexpircd patent, or pending application, in which the same thing is claimed ; but not where such pending application for re-issue claims only what was granted in the original patent. When an application is found to conflict with a caveat, the cav- eator is allowed a period of three months within which to present an application, when an interference may be declared. In cases of in- terference, patentees have the same remedies by appeal as applicants in pending applications. In contested cases, whether of interfer- ence or of extension, parties may have access to the testimony on file, prior to the hearing, in presence of the officer in charge ; or, when practicable, copies may be obtained by them at the usual charges. In cases of interference, the party who first made oath to the inven- tion will be decided the first inventor in the absence of all proof to the contrary. A time will be assigned in which the other party shall complete his direct testimony, and a further time in which the adverse party shall complete the testimony on his side ; and a still further time in which the first party shall close his rebutting testi- mony, but shall take no other. If there are more than two parties, the times for taking testimony shall bo so arranged that each shall have a like opportunity in his turn, each being held to go forward RE-ISSUE3 569 and prove his case against those who made oath to their' applications before him. If either party wishes the time for taking his testimony, or for the hearing, postponed, he must make application for such postponement, and must show sufficient reason for it by affidavit filed before the time previously appointed has elapsed, if practicable ; and must also furnish his opponent with copies of his affidavits, and witli seasonable notice of the time of hearing his application. When an interference has been declared, and a new application claiming the invention in controversy comes into the office before the final determination of such interference, the new application will be included in the case, and the proper means will be taken to allow all the parties a fair hearing. The testimony taken by the original parties will be retained in the case, provided that due opportunity can be given the new applicant to cross examine the witnesses. If, however, on the original interference, an appeal has been taken to the examiners in chief, before the new application is filed, such new application will be suspended until the decision in the original case, after which a new interference may be declared with the successful party. After an interference has been declared, another interference will not be declared upon a new application filed by either party unless it is shown to the satisfaction of the office that such party has new testimony which he could not have procured in time for the hearing, and which might change the decision. When an application is adjudged to interfere with a part only of another pending application, the interfering parties will be permitted to see or obtain copies of so much only of the specifications as refers to the interfering claims. And either party may, if he so elect, withdraw from his application the claims adjudged not to interfere, and file a new application therefor. In such case, the new applica- tion will be examined without reference to the interference from which it was withdrawn. Re-issues. A re-issue is granted to the original patentee, his heirs, or the assignees of the entire interest, when, by reason of an insufficient or defective specification, the original patent is invalid, provided the 570 THE LAW OP PATENTS. error has arisen from inadvertence, accident, or mistake, without any fraudulent or deceptive intention. The petition for a re-issue must show that all parties owning any undivided or territorial interest in the patent (irrespective of licenses) concur in the surren- der. And a certified statement of the title of the party surrender- ing must be filed with the application. "Whatever is really embraced in the original invention, and so described or shown that it might have been embraced in the original patent, may be the subject of a re-issue ; but an applicant will not be allowed the benefit of proof that there was more in his invention than is shown in his original application, model, or specimens. Re-issued patents expire at the same time that the original patent would have done. For this reason, applications for re-issue will be acted upon immediately after they are completed. A patentee may, at his option, have in his re-issue a separate pat- ent for each distinct part of the invention comprehended in his original application, by paying the required fee in each case, and complying with the other requirements of the law, as in original applications. Each division of a re-issue constitutes the subject of a separate specification descriptive of the part or parts of the inven- tion claimed in such division ; and the drawing may represent only such part or parts. One or more divisions of a re-issue may be granted, though other divisions shall have been postponed or re- jected. In all cases of applications for re-issues, the original claim is subject to re-examination, and may be revised and restricted in the same manner as in original applications. The following are appropriate forms of application for re-issue : (189.) Form of Surrender of a Patent fvf Re-issue. To THE COMMISSIONER OF PATENTS: The petition of , of , in the county of and State of , Respectfully represents : That he did obtain letters-patent of the United States, for which letters- patent are dated on the first day >{ March, 1850 ; that he now believes that the same DISCLAIMERS. 571 are inoperative and invalid by reason of a defective specification, which defect has arisen from inadvertence and mistake. He therefore prays that he may be allowed to surrender the same, and requests that new letters-patent may issue to him, for the same invention, for the residue of the period for which the original patent was granted, under the amended specification herewith presented, he having paid thirty dollars into -the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. (Signature.) (190.) Form of Oath to be appended to Applications for Re-Issue. CITY (OB TOWN) OP COUNTY OF ) [-88. STATE OF ) On this , day of 186 , before the subscriber, a personally appeared the above-named and made solemn oath (or affirmation) that he verily believes that, by reason of an insufficient or defective specification, his aforesaid patent is not fully valid and available to him, and that the said error has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, to the best of his knowledge or belief. (Signature.) (Signed.) Applications for re-issues will not be kept secret ; and information respecting the same will be furnished upon inquiry, as well as copies of the proposed claims for publication. Disclaimers. Where, by inadvertence, accident, or mistake, the original patent is too broad, a disclaimer may be filed either by the original patentee or by any of his assignees. The following is a sufficient form for a disclaimer : (191.) Form for a Disclaimer by an Assignee. To THE COMMISSIONER OF PATENTS : The petition of of in the County of and State of Respectfully represents : That he has, by grant, duly recorded in the patent office, become the owner of 38 572 ' THE LAW OF PATENTS. a right foi the several States of Massachusetts, Connecticut, and Rhode Island, to certain improvements in the steam-engine, for which letters-patent of tho United States were granted to of in the State of dated on the day of 18 ; that he has reason to believe that throagh inadvertence and mistake, the claim made in the specification of said letters-patent is too broad, including that of which the said patentee was not the first inventor. Your petitioner, therefore, hereby enters his disclaimer to that part of the claim in the aforenamed specification which is in the following words, to wit: "I also claim the particular manner in which tho piston of the above-described engine is constructed, so as to insure the close fitting of the packing thereof to the cylinder, as set forth ; " which disclaimer is to operate to the extent of the interest in said letters-patent vested in your petitioner, who has paid ten dollars into the treasury of the United States, agreeably to the re- quirements of the act of Congress in that case made and provided. (Signature.) The above form is for disclaimer by an assignee. When the dis- claimer is made by the original patentee, it must, of course, be so worded as to express that fact. Extensions. The applicant for an extension must file his petition and pay in the requisite fee at least ninety days prior to the expiration of his patent. The commissioner has no power to renew a patent granted since March 2, 1861 ; but he may extend one granted before, for seven years. The questions which arise on each application for an extension are : Is the invention novel ? Is it useful ? Is it valuable and important to the public ? Has the inventor been adequately remunerated for his time and expense in originating and perfecting it ? Has he used due diligence in introducing his invention into gene- ral use ? The first two questions will be determined upon the result of an examination in the patent office; as will also the third, to some extent. To enable the commissioner to come to a correct conclusion in regard to the third point of inquiry, the applicant should, if possi- EXTENSIONS. 573 ble, procure the testimony of persons disinterested in the invention, which testimony should be taken under oath. In regard to the fourth and fifth points of inquiry, in addition to his own oath show- ing his receipts and expenditures on account of the invention, by whish its value is to be ascertained, the applicant should show, by testimony on oath, that he has taken all reasonable measures to introduce his invention into general use ; and that, without default or neglect on his part, he has failed to obtain from the use and sale of the invention a reasonable remuneration for the time, ingenuity, and expense bestowed on the same, and the introduction thereof into use. In case of opposition by any person to the extension of a patent, both parties may take testimony, each giving reasonable notice to the other of the time and place of taking said testimony, which shall be taken according to the rules prescribed by the Commissioner of Patents in cases of interference. A monopoly of his invention is secured by the law no-v/in force to the inventor for the term of seventeen years, with a view to compensate him for his time and expense in originating and perfect- ing it. At the end of the time for which his patent runs his mo- nopoly should cease, and the invention become public property, unless he can show good reason for the contrary. The presump- tion is always against his application ; and if he cannot show that his invention is novel, useful, and valuable, and important to the public, and that having made all reasonable effort to introduce it into general use, he has not been adequately remunerated for his time and expense in discovering and perfecting it, the applicant cannot have an extension. Therefore, the applicant for an exten- sion must furnish to the office a statement in writing, under oath, of the ascertained value of the invention, and of his receipts and expenditures. This statement should be made particular and iu detail, unless sufficient reason is set forth why such a statement can- not be furnished. This statement should be filed within thirty days after filing his petition. Any person who intends to oppose an application for extension may, at any time after such application has been made, give notice 574 THE LAW OF PATENTS. of such intsiition to the applicant. After this he will be regarded as a party in the case, and be entitled to notice of the time and place of taking testimony, as well as to a list of the names an88. COUNTY OP ) At , in said county, on the day of , A. D. 18 . before me personally appeared the above-named A B, and made oath that the fore- going deposition, by him subscribed, contains the whole truth, and nothing but the truth. 586 THE LAW OF PATENTS. The said deposition is taken at the request of E F, to be used upon the hearing of an interference between the claims of the said E F and those of I K, before the Commissioner of Patents of the United States, at his office, on the day of next. The said I K was duly notified, as appears by the original notice hereto annexed, and attended by G H, his counsel. Certified by me : (Signature.) The magistrate must then spal up the deposition when completed , and indorse upon the envelope a certificate according to the form before the last. After a second rejection, none of the papers can be inspected, save in the presence of a sworn officer, nor will any of the papers be returned to the applicant or agent. Whenever it shall be found that two or more parties whose inter- ests are in conflict aro represented by the same attorney, the exam- iner in charge will notify each of said principal parties of this fact. The Filing and Preservation of Papers. All claims and specifications filed in this office (including amend- ments) should be written in a fair, legible hand, without interlinea- tions or erasures, except such as are clearly stated in a marginal or foot note, written on the same sheet of paper ; or, failing in which, the office may require them to be printed. All papers filed in the office will be regarded as permanent records of the office, and must never, on any account, be changed, further than to correct mere clerical mistakes. Amendments. The applicant has a right to amend, of course, after the first re- jection ; and he may amend after the second, if the examiner therein present any new references, unless the devices claimed by him in the first amendment were entirely different from those originally relied upon, and not mere modifications of them. After a second rejection, and before appeal to the examiners in chief, the applicant may draw up special amendments, and present the same to the commissioner, together with an affidavit showing good cause why FORM OF AMENDMENT OF SPECIFICATION. 587 the amendments were not sooner offered, whereupon the commis- sioner may, in his discretion, grant leave to make such special amendments, and allow a reconsideration. No alterations or amendments, except of clerical errors, will be allowed after an appeal to the examiner in chief, or after the patent has been ordered to issue, unless the same are approved by the examiner in charge. All amendments of the model, drawings, or specification, must conform to at least one of them as they were at the time of the filing of the application ; and all amendments of specifications or claims must be made on separate sheets of paper from the original, and must be filed in the manner above directed. Even when the amend- ment consists in striking out a portion of the specification, or other paper, the same course should be observed. No erasure must be made. The papers must remain forever just as they were when filed, so that a true history of all that has been done in the case may be gathered from them. The following are forms proper to be observed in such cases : (200.) Form, of Amendment of Specification. " I hereby amend my specification by inserting the following words aftei the word , in the line of the page thereof (here should follow the words that are to be inserted) ; or, " I hereby amend my specification by striking oat the line of the page thereof; "or, "by striking out the first and fourth clauses of the claim appended thereto ; " or whatever may be the amendment desired by the applicant. In each case, the exact word to be stricken out or inserted should be clearly described, and the precise point indicated where any insertion is to be made. The office will, in no case, return specifications for amend- ment ; nor will any person whatever be allowed to take any pa- pers, models, or samples from the office. If applicants have not preserved copies of such papers as they wish to amend, the office will furnish them on the usual terms. No application will be sus- pended merely because the applicant may refuse to amend as re- 598 THE LAW OF PATENTS. quested or advised by an examiner in charge ; but in such cas.e the application must bo examined oil its merits, as presented, and allowed or rejected, so that the inventor may take an appeal if the decision should be adverse. Placing the affidavit of the applicant on one piece of paper and the specification on another, so that both may be detached and ap- plied to other papers, will be looked upon with suspicion, and any such substitution will be carefully guarded against. No speciaca- tion will be received unless the sheets are attached together, or unless the officer who administers the oath has subscribed his name upon each separate sheet of paper, so as to show that the specifica- tion presented is the same that was subscribed and sworn to. Trade-marks. The statute of July 8, 1870, provides not only for patents and copyrights, but for trade-marks. The following are the important sections which relate to this subject : SECT. 77. And be it further enacted, That any person or firm domi- ciled in the United States, and any corporation created by the au- thority of the United States, or of any State or Territory thereof, and any person, firm, or corporation resident of or located in . any foreign country which by treaty or convention affords similar privi- leges to citizens of the United States, and who are entitled to the exclusive use of any lawful trade-mark, or who intend to adopt and use any trade-mark for exclusive use within the United States, may obtain protection for such lawful trade-mark by complying with the following requirements : to wit, First, By causing to be recorded in the patent office the names of the parties, and their residences and place of business, who desire the protection of the trade-mark. Second, The class of merchandise and the particular description of goods comprised in such class, by which the trade-mark has been or is intended to be appropriated. Third, A description of the trade-mark itself, with facsimiles thereof, and the mode in which it has been or is intended to be ap- plied and used. TRADE-MARKS. 689 Fourth, Tho length of time, if any, during which the trade-mark has been used. Fifth, The payment of a fee of twenty-five dollars, in the same manner and for the same purpose as the fee required for patents. Sixth, Tho compliance with such regulations as may be pre- scribed by the Commissioner of Patents. Seventh, The filing of a declaration, under the oath of the per- son, or of some member of the firm, or officer of the corporation, to the effect that the party claiming protection for the trade-mark has a right to the use of the same, and that no other person, firm, or cor- poration has the right to such use, either in the identical form, or having such near resemblance thereto as might bo calculated to deceive ; and that the description and facsimiles presented for record are true copies of the trade-mark sought to be protected. SECT. 78. And be it further enacted, That such trade-mark shall remain in force for thirty years from the date of such registration, .except in cases where such trade-mark is claimed for and applied to articles not manufactured in this country, and in which it receives protection under the laws of any foreign country for a shorter period ; in which case it shall cease to have any force in this country by virtue of this Act at the same time that it becomes of no effect else- where ; and during the period that it remains in force it shall entitle the person, firm, or corporation registering the same to the exclusive use thereof so far as regards the description of goods to which it is appropriated in the statement filed under oath as aforesaid ; and no other person shall lawfully use the same trade-mark, or substantially the same, or so nearly resembling it as to be calculated to deceive, upon substantially the same description of goods : Provided, That, six months prior to the expiration of said term of thirty years, ap- plication may be made for a renewal of such registration, under regulations to be prescribed by the Commissioner of Patents, and the fee for such renewal shall be the same as for the original regis- tration ; certificate of such renewal shall be issued in the same manner as for the original registration, and such trade-mark shall remain in force for a further term of thirty years : And provided further, That nothing in this section shall be construed by any court as abridging, or in any manner affecting unfavorably, the claim 590 THE LAW OF PATENTS. of any person, firm, corporation, or company, to any trade-mark after the expiration of the term for which such trade-mark was registered. SECT. 79. And be it further enacted, That any person or corpora- tion who shall reproduce, counterfeit, copy, or imitate any such re- corded trade-mark, and affix the same to goods of substantially the same descriptive properties and qualities as those referred to in the registration, shall be liable to an action in the case for damages for such wrongful use of said trade-mark, at the suit of the owner thereof, in any court of competent jurisdiction in the United States ; and the party aggrieved shall also have his remedy according to the course of equity to enjoin the wrongful use of his trade-mark, and to recover compensation therefor in any court having jurisdiction over the person guilty of such wrongful use. The Commissioner of Patents shall not receive and record any proposed trade-mark which is not and can not become a lawful trade-mark, or which is merely the name of a person, firm, or corporation only, unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons, or which is identical with a trade-mark appropriate to the same class of merchandise, and belonging to a different owner, and already registered, or received for registration, or which so nearly resembles such last-mentioned trade-mark as to be likely to deceive the public : Provided, That this section shall not prevent the registry of any lawful trade-mark rightfully used at the time of the passage of this Act. SECT. 80. And be it further enacted, That the time of the receipt of any trade-mark at the patent office for registration shall be noted and recorded ; and copies of the trade-mark, and of the date of the receipt thereof, and of the statement filed therewith, under the seal of the patent office, certified by the commissioner, shall be evidence in any suit in which such trade-mark shall be brought in contro- versy. The sections 81, 82, 88, and 84, authorize the commissioner to make rules, -A or notes) but from any sum so to be paid as aforesaid shall first be 598 THE LAW OF COPYRIGHT. deducted the cost of any alterations or corrections, exceeding ten per cent of the cost of first setting up the type, made by the said author in said book after tht. portion altered or corrected is in type. In Witness Whereof, The said parties have hereto, and to another instni ment of like tenor, set their hands the day and year first above written. (Signature of author.) (Signature of publishers.} (Witnesses.') (203.) An Assignment of a Copyright. To all whom it may Concern : Whereas I (name of assignor') of in the County of and State of did obtain a copyright from the United States for a work entitled and the certificate of said copyright bears date A.D. eighteen hundred and Now this Deed Witnesseth, That for a valuable consideration, viz. to me in hand paid, the receipt of which is hereby acknowledged, I have assigned, sold, and set over, and by these presents do assign, sell, and set over unto the said (name of assignee) all the right, title, and interest I have in the above book (or design, ffc.) as secured to me by said copyright The same to be held and enjoyed by the said (name of assignee) for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said copyright was issued, as fully and entirely as the same would have been held and enjoyed by me had this assignment and sale not been made. In Testimony Whereof, I have hereunto set my hand and affixed my seal this day of in the year of our Lord one thousand eight hundred and (Signature.) (Seal.) Sealed and Delivered in Presence of RECOVERY AND COLLECTION OF DEBTS. 599 CHAPTER XXXV. PROVIDED FOR THE RECOVERY A.NO OF r>EBT8. It Arrest and Imprisonment In eight States, no person can be arrested or imprisoned for debt. These are Virginia, Maryland, North Carolina, Mississippi, Florida, Wisconsin, Arkansas, and Texas. In California no female, and in Louisiana no female, and no person who has not a domicil in the State, and in Ohio no female nor any officer or soldier of the Revolutionary army, can be arrested or imprisoned for debt. In all the States, the intention of the law is to limit imprisonment to those cases in which either fraud was committed in the contraction of the debt, or the debtor intends to abscond out of the reach of process. The provisions to effect this are very various. Generally, the plaintiff must file in the clerk's office, or indorse upon the writ, an affidavit of the facts on which he grounds the right of arrest. In some of the States, provision is made for the imprisonment on execution of a debtor who can be found to possess, and refuses to surrender, property or interest, real or per- sonal, which might be made available for the payment of his debts. 2, The Trustee Process. The trustee process, or garnishee process, or process of foreign attachment, by all which names it is known, is now nearly or quite universal. It is substantially this. A owes B a debt ; but A has no property in his hands or possession which B can get at ; but A has deposited in the hands of C goods or property or credits of some kind, or A has a valid claim against C for wages or services, or money loaned, or goods sold, or some- thing else ; and this B gets by suing A, not with a common writ, but with a trustee writ, so called, in which ha declares that B is the trustee of A, for property, COLLECTION OP DEBTS ing to A, and that he does not owe A any thing. And then tho plaintiff may shape the questions as he pleases, to draw out the truth. No one is adjudged trustee, or made to pay to the creditor the debt due to the debtor, if he has given a negotiable note for it, because lie might have to pay it again to an honest indorsee. Nor if the debt is not certainly due ; nor, generally, if it is due from tho trustee in any official capacity, which will require him to account over for the money in his hands ; nor if the debtor has recovered a judgment against the trustee, on which execution may issue. 3. The Homestead, In most of the States, a homestead is protected from creditors, and exempted from all attachment or ex- ecution, excepting in some States for taxes, or wages of labor to a certain amount. In the Abstract of the Law of Husband and Wife, already given on pages 17 to 38, a brief statement of the quantities and values of the homesteads exempted from sale on execution in the several States, is also given. This is stated in that connection, because the principal purpose of these homestead exemptions seems to be the protection of the wife and family. Various provisions are made in each of these States to combine a due protection of the creditor with proper prevention of fraud. The most common means are by requiring that " the homestead " should be distinctly defined and set apart, and in many cases by the addi- tional requirement, that the description and location of it should be put oil public record. In all the States there are also exemption laws. These provide very generally that bed and bedding and other necessary furniture, needful clothing, a Bible and school-books, and a certain amount of food and fuel, shall not be taken on attachment or execution. In some States, the tools of a trade, the uniform, arms, and equipments of soldiers or officers in tho militia, the family burying-vault and gravestones, a team or yoke of oxen, bees with their hives and honey, a boat for fishing*, 88. (The name of the party claiming the Ken) being duly sworn, says, that he is the claimant mentioned in the foregoing notice of lien, that he has read the said notice and knows the contents thereof, and that the same is true to his own knowl- edge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. to before me, this day of 18 (205.) A Bill of Particulars of Mechanic's Claim, (To be served on owner.') A Bill Of Particulars Of the amount claimed to be due from for and on account of (work or materials) and that such work was done (or materi- als furnished) in pursuance of (state the contract or order) which building is owned by situated in the ward of the city of on the side of Street, and is known as No. of said street. M To 18 (206.) A Release and Discharge of a Mechanic's Lien. I do Hereby Certify, That a certain mechanic's lien, filed in the office of the clerk of the county of the day of one thousand eight hundred and at o'clock, in the noon, in favor of claimant against the b- aiding and lot, situate side of street, and known as No. hi said street, whereof is owner, and is contractor, is discharged. s. On the day of one thousand eight hundred and before me came who is known to me to be the individual described in, and who executed the abo> certificate, and acknowledged that he executed the same. PENSIONS. 605 (207.) Release and Discharge of a Mechanic's Lien; another Form* Wliereas, We, the subscribers, have erected and furnished materials for erecting on lot or piece of ground situate And have agreed to release all liens which we, or any or either of us have, or might have, on the said by reason of materials furnished, or work per formed, for erecting the same. Now these presents witness, that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar, to each of us at or before the sealing and delivery hereof by the said well and truly paid, the receipt whereof we do hereby acknowledge, have remised, released, and forever quit-claimed, and by these presents do remise, release, and forever quit-claim unto the said and to his heirs and assigns, all and all manner of liens, claims, and demands whatsoever, which we, or any or either of us now have, or might or could have, on or against the said and premises, for work done, or for materials furnished, for erecting and construct- ing the said building, or otherwise howsoever. So that he the said and his heirs and assigns, shall and may have, hold, and enjoy, the said and premises, freed and discharged from all liens, claims, and demands whatsoever, which we, or any or either of us, now have, or might or could have, on or against the same, if these presents hass. COUNTY OF ) On this day of , A.D. one thousand eight hundred and , personally appeared before me, ' (here state Ute official character of the person administering the oath) within and for the county 626 PENSIONS. and State aforesaid, , aged years, a resident of , in the State of , who, being duly sworn according to law, declares that he is the identical who enlisted in the service of the United States at , on the day of , in the year , as a in company , commanded by , in the regiment of , in the war of 1861, and was honorably discharged on the day of , in the year ; that while in the service aforesaid, and in the line of his duty, he received the following wound (or other disability, as the case may be), (here give a particular and minute account of the wound or other injury, and state how, when, and where it occurred, where the applicant has resided' since leaving tfte service, and what has been his occupation.) My post-office address is as follows : (Signature of claimant.') Also Personally Appeared and , residents af (county, city, or town) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign his name (or make his mark) to the foregoing declaration; aad they further swear that they have every reason to believe, from the appear- ance of the applicant and their acquaintance with him, that he is the identical person he represents himself to be ; and they further swear that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, hi the prosecution of this claim. (Signature of judge or other officer.) (209.) Declaration for obtaining a Widow's Army-Pension. STATE (TERRITORY OR DISTRICT) OP COUNTY OF On this day of , A.D. , personally appeared before me, , of the , a resident of , in the County of , and State (territory or d'istricC) of , aged years, who being first duly sworn according to law, doth on her oath make the following declaration in order to obtain the benefit of the provisions made by the act of Congress ap- >-88. FORMS OF DECLARATIONS. 627 proved July 14, 1862 : That she is the widow of , who was a in company , commanded b} in the Regiment of in the war of 1861, who (here specify Hie time, place, and cause of death). She further declares that she was married to the said on the day of in the year ; that her husband, the aforesaid , died on the day above mentioned, and that she has remained a widow ever since that period, as will more fully appear by reference to the proof hereto annexed. She also declares that she has not in any manner been engaged in, or aided or abetted, the Rebellion hi the United States. My post-office address is as follows : (Declarant's signature.) Also Personally Appeared and , residents of (county, city, or town) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that thej were present and saw sign her name (or make her mark) to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with her, that she is the identical person she represents herself to be, and that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or other officer.') (210.) Declaration for Minor Children in order to obtain Army- Pensions. X8S. STATE (TERRITORY OR DISTRICT) OF COUNTY OP On this day of , A.D. , personally appeared before the of the , , a resident of , in the County of , and State (territory or district) of , aged years, who being first duly sworn according to law, doth on oath make the following declaration, as guardian of the minor child of , deceased, in order to obtain the benefits of the provisions made by the act of Congress approved July 14, 1862, granting pensions to minor children, under sixteen years of age, of deceased officers and soldiers; that he is the guardian of , (naming (lie minor child or children, his 628 PENSTOKS. ward or wards) whose father was a in company , command... o 1 by , in the Raiment of , in the war of 1861, and that the said Jied at on the day of , in the w (here state the cause of death) ; that the mother of the child aforesaid died (or again married, being now the wife of ) on the day of , in the year ; axH ttat the date of birth of his said ward as follows : He further declares that the parents of his said ward were married at , on the d-v" of , hi the year by My post-office address is as follows : (GttrrFan'i signature) Also Personally Appeared and , residents of (county, city, or toicri) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign name (or make his mark') to the foregoing decla- ration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with him, that he is the iden- tical person he represents himself to be, and that they have no interest hi the prosecution of this claim. (Signatures of witnesses.") Sworn to and subscribed before me this day of A.D. 186 , and I hereby certify that I have no interest, direct or indirect, hi the prosecution of this claim. (Signature of judge or other officer.") (211.) Declaration for Mother's or Father's Application for Army- Pension. 1 STATE (TERRITORY OR DISTRICT) OF COUNTY or On this day of , A.D , personally appeared before the of the , , a resident of hi the County of , and State (territory or district) of , aged years, who, being first duly sworn according to law, doth on oath make the following declaration hi order to obtain the benefits of the provisions made by the act of Congress ap- proved July 14, 1862, and its amendments: That is the of , and of , who was a In company , commanded by , in the FORMS OF DECLARATIONS. 629 Regiment of , in the war of 1861, who (here state the titne, place, and cause of death). further declares that said son, upon whom was wholly or in part dependent for support, having left no widow or minor child under sixteen years of age surviving, declarant makes this application for a pension under the above-mentioned act, and refers to the evidence filed herewith, and that in the proper department, to establish claim. also declares that has not in any way been engaged in, or aided or abetted, the Rebellion in the United States ; that is not in the receipt of a pension under the second section of the act above mentioned, or under any other act, nor has again married since the death of son, the said . My post-office address is as follows : (Declarants signature.) Also Personally Appeared and , residents of (county, city, or town) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say they were present and saw sign name (or make mark) to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with , that is the identical person represents to be, and that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of , A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, hi the prosecution of this claim. (Signature of judge or other officer.) (212.) Declaration of Orphan Brothers or Sisters for Army-Pension. STATE (TERRITORY OR DISTRICT) OF 1 /Hi COUNTY OF On this day of , AJX , personally appeared before the of the , a resident of in the County of , and State (territory or district) of , aged years, who, being first duly sworn according to law, doth on oath make the following declaration, in order to obtain a pension under the act of July 14, 1862, and its amendments: That he is the legally appointed guardian of (here give the names and ages of his tca r d or 630 PENSIONS. wards) who the only surviving child , under sixteen yeara of age, of and his wife, and of , who was a in company , com- manded by , in the Regiment of , in the war of 1861, who (here state the time, place, and cause of his death). That the brother of his said ward , upon whom they are wholly or in part dependent for support, having left no widow, minor child or children, declarant as guardian, and on behalf of his ward , refers to the accompanying evidence, and such as may be found in the department, to establish claim under the law above named. He further declares that his said ward is not in receipt of any pension under said act. My post-office address is as follows : (Guardian's signature.) Also Personally Appeared and , residents of (county, city, or town) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign name (or make mark) to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with that is the identical person represents to be, and that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or other officer.) (213.) Declaration for the Increase of an Invalid Pension* ( Under the Firtt Section of the supplementary Pension Act of June 6, 1866.) STATE (TERRITORY OR DISTRICT) OF COUNTY OF On this day of , A.D. 18 , personally appeared before me (describing the official character of the person administering the oath) , aged years, a resident of (naming Hie town and post-office address), in the County of , and State (territory or district) of , who, being duly sworp according to law, declares that he is a pensioner of the United States, duly enrolled at the pension agency, at the rate of $ per month, by reason of FORMS OF DECLARATIONS. 631 disability incurred n the military (or naval ) service of the United States (here state the company and regiment, if in the army, or tfte vessel and rank, if in the navy), and that his present physical condition is such that he believes himself entitled to receive an increased pension of the (first, second, or Hard) grade provided for in the First Section of the supplementary Pension Act approved June 6, 18G6. He further declares that he is disabled in the following manner, to wit (here the declarant will particularly set forth the nature of his disability, and the extent to which he is incapacitated for manual labor, or dependent upon the personal aid and attend- ance of others) (Signature of declarant.) Also Personally Appeared Before me, at the time and place aforesaid, of , and of , whom I certify to be credible persons, who, being duly s-worn according to law, declare, each for himself, that they well know , who signed the foregoing declaration in their presence, and that he is the identical person he rep- resents himself to be, and that he is disabled substantially in the manner alleged in said declaration. They further swear that they, or either of them, have no interest in this claim, either present or prospective, and that they are not concerned, directly or indirectly, in its prosecution. (Signatures of witnesses.) Sworn to and subscribed before me this day of A.D. 18 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or other officer.) (214.) Declaration of the Guardian of a Minor Child. ( Under the Eleventh Section of the Act of June 6, 18C8.) STATE (TERRITORY OR DISTRICT) OF /M. COUXTY OF On this day of , A.D. , personally appeared before me (describing the official character of the person administering the oath) , aged years, a resident of (naming town and post-office address), in the County of , and State (territory or district) of , who, being duly sworn according to law, doth on oath make the following declaration, as guardian of the intoor child (or children) of , deceased, in order to obtain the be ne6ts of the provision made by the Eleventh Section of the Act of Congress, approved J ane 6, 1866, and its amendments, granting pensions to minor children under sixteen years of age, of deceased officer^, soldiers, or seamen, who have left a widow still 632 PENSIONS. surviving, the latter having abandoned the care of said children, or having been declared an unsuitable person to have charge of them. He further declares that he is the guardian of (naming the minor child or children, his ward or wards), whose father was (here describe the service of the deceased), in the war of 1861, and that the said died at , on the day of , hi the year (here state the cause of death), that the mother of the child (or children) aforesaid has abandoned the care, or is an unsuitable person, by reason of immoral conduct (here state what specific conduct is referred to), to have charge of the child (or children) ; and that the date of birth of his said ward (or wards) is as follows : He (or she) further declares that the parents of his (or her) said ward (or wards) were married at , on the day of , in the year , by . (Guardian's signature,") Also Personally Appeared and , residents of (county, city, or town), persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign name (or make mark) to the fore- going declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant, and their acquaintance with , that is the identical person represents to be, and that they \ ave no interest in the prosecution of the claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of A.D. 18 ; and I hereby certify that I have no ineretst, direct or indirect, in the prosecution of this claim. (Signature of judge or other officer.) (215.) Widow's Declaration for an Increase of Pension. ( Under the Second Section of the Act of July 25, 1868.) STATE (TERRITORY OR DISTRICT) OF COUNTY OF On this day , A.D. , personally appeared before me, of the , , a resident of , in the County of , and State (territory or district) of , aged years, who, being first duly sworn according to law, doth on her oath make the following declaration, in order to obtain the benefit of the provision made by the Second Section of the Act FORMS OF DECLARATIONS. 633 of Congress increasing the Pensions cf Widows and Orphans, approved July 25, 1866 : That she is the widow of , who was a in company , commanded by , in the Regiment of , in the war of 1861 ; and that by reason of his death in the service aforesaid, she has been granted a pension of eight dollars per month, in accordance with a certificate numbered , bearing date She further swears that she has the following-named children of her deceased hus- band under sixteen years of age, who are now living, the dates of whose birth were as given below, to wit : She further declares that she has not remarried since the death of her said hus- band, nor has she abandoned the support of any one of the children above named, nor permitted any one of the same to be adopted by any other person or persons as his, her, or their child. My post-office address is as follows : (Declarant's signature.) Also Personally Appeared and , resi- dents of (county, city, or town), persons whom I certify to be respectable, and entitled to credit ; and who, being by me duly sworn, say that they were present and saw sign her name (or make her mark') to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant, and their acquaintance with her, that she is the identical person she represents herself to be, and that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me, this day of A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or oQw officer.) (216.) Guardian's Declaration for Increase of Pension. ( Under the Second Section of the Act of July 25, 1806.) STATE (TERRITORY OR DISTRICT) OF COUNTY OF On this day of , A.D. , personally appeared before me, of the , , a resident of , and State (territory or district) of , aged years, who, being duly sworn according to law, doth on oath make the following declaration, in order to obtain the benefit of the provision -I 8 " 634 PENSIONS. made by the Second Section of the Act of Congress increasing the Pensions of Widows and Orphans, approved July 25, 1866 : That Qie or she) is the guardian of (naming the minor child or children, ward or wards), whose father was a in company , commanded by , in the Regiment of , in the war of 1861, and that the said (naming the father) died at , on the day of , in the year (here state the cause of death)] that the mother of the child aforesaid died (or again married, being now the wife of ), on the day of , in the year ; and that the dates of birth of the said (minor child or children, ward or wards) were as follows, to wit : lie (or she) further declares that the parents of the said (minor child of children, ward or wards) were married at , on the day of , hi the year , by , and that the maiden name of their mother was . My post-office address is as follows : (Guardian's signature.) Also Personally Appeared and , residents of (county, city, or town), persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign (his or her) name (or make his or her mark) to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant, and their acquaintance with (him or l-er,) that (he or she) is the identical person (he or she) represents (himself or her- self) to be, and that they have no interest the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me, this day of , A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or other officer.) (217.) Declaration for Widoiv's Pension and Increase. ( Under the Act of July 14, 1862, and supplementary Act of July 25, 1866.) STATE OF /as. COUNTY OF On this day of , A.D. , personally appeared before me, a of a court of record hi and for the county and State aforesaid, a resident of , in tLo County of , and State of FORMS OF DECLARATIONS. 635 years, who, being duly sworn, makes the following declaration, in order to obtain the pension provided by the act of Congress, approved July 14, 1862 : That she is the widow of , who was a in company , commanded by , in the Regiment of , in the war of 1861 ; that her maiden name was , and that she was married to said on or about the day of A.D. , at , in the County of , and State of , by , and that there is record evidence of marriage. She further declares that saic? , her husband, died in the service of the United States, as aforesaid, at , in the State of , on or about the day of , A.D. , of She also declares that she has remained a widow ever since the death of said , and that she has the following-named children of her deceased husband, under sixteen years of age, who are now living, the dates of whose births are, as given below, to wit : She further declares that she has not abandoned the support of any one of the children above named, nor permitted any one of the same to be adopted by any person or persons ; that they are the only legitimate children of herself and tho deceased, and that she has not in any manner been engaged in or aided or abetted the Rebellion in the United States. My post-office address is . (Signature of claimant.) Also Personally Appeared , and , residents of , County and State of , to me well known as credible persons, who, being duly sworn, declare that they were present and saw said sign her name to the foregoing declaration, and that they have every reason to believe, from the appearance of said applicant, and their acquaintance with her, that she is the identical person she represents herself to be, and know that said deceased recognized the said applicant as his lawful wife, and that she was so recognized in the community in which they resided ; and they fur- ther declare that they know the fact that she has not remarried, but is still a widow, and that she has not abandoned the support of any one of the said children, and that her statement in reference to the same is true to their personal knowledge, and that they have no interest, direct or indirect, in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of , A..D. ; and I hereby certify that the contents of the above were made known and explained to the applicant and witnesses before signing, and that I have no interest, direct or indirect, in the prosecution of this claim. (Seal.) (Official signature.) 636 PENSIONS. (218.) Declaration for Restoration to the Rolls* ( Under Section 3, Act July 27, 1868.) STATE (TERRITORY OR DISTRICT) OF : .88. COUNTY OF On this day of , A.D. one thousand eight hundred and , personally appeared before me (here stale the official character of the person administering the oath), within and for the county and State aforesaid, , aged years, a resident of , in the State of , who, being duly sworn according to law, declares that is the identical to whom was granted pension certificate No. , payable at , dated the day of , in the year ; that having failed since the day of , 18 , by reason of (here state the causes of such neglect) , to apply for the payment due upon said certificate, and thereby been deprived of the same under the Third Section of the Act of July 27, 1868, makes this declaration in order to secure restoration to the pension-rolls and a new certificate, returning herewith the original. post-office address is as follows : (Signature of claimant.') Also Personally Appeared and , residents of (county, city, or town), persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign name (or make his or her mark) to the foregoing declaration; and they further swear that they have every reason to believe, from the appearance of the applicant, and their acquaintance with , that is the identical person represents self to be ; and they further swear that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of , A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or otter officer.) NOTE. In cases of invalid pensioners, a certificate of a pension surgeon will be required that the disability still continues, except in cases of loss of limbs and of the eyes. Widows and mothers should depose as to continuance of widowhood. FOEMS OF DECLARATIONS 637 (219.) Declaration for Arrears of Pensions. ( Under Sections 6 and 10, Act of July 27, 1868.) STATE (TEKRITOBY OR DISTRICT) OF : .88. COUNTY OF On this day of , A.D. one thousand eight hundred and , personally appeared before me (here state the official character of the person administering the oatft), within and for the county and State aforesaid, , aged years, a resident of , in the State of , who, being duly sworn according to law, declares that is the identical to whom was granted pension. certifiate No. , payable at the agency at and dated ; that under the limitations of the Act of was denied a pension from the date of the (remarriage), death, or discharge of ; and believing entitled to the same, under the Section of the Act of July 27, 1868, makes this declaration in order to secure the arrears accrued thereunder, postroffice address is as follows : (Signature of claimant.') Also Personally Appeared and residents of (county, city, or town) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign name (or make mark) to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with that is the identical person represents self to be; and they further state that they have no interest in the prosecution of this claim. (Signatures of witnesses.') Sworn to and subscribed before me this day of A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of Judge or other officer.) Invalid applicants under Section Six should depose as to length of time they were employed in the civil service of the government between March 3, 1865, and June 6, 1866. 638 PENSIONS. (22O.) Declaration for Increase of Pension. ( Under Section Thirteen, Act of July 27, 1868.) STATE (TERRITORY OR DISTRICT) OF COUNTY OF On this day of , A.D. one thousand eight hun- dred and personally appeared before me (here state the official character of the person administering the oath) within and for the County and State aforesaid, aged years, a resident of in the State of who, being duly sworn according to law, declares that is the identical to whom was granted pension certificate No. payable at at the rate of dollars per month, issued under the Act of 18 ; that makes this declaration in order to secure the increase of pension to which is entitled under the Thirteenth Section of the Act of July 27, 1868. My post-office address is as follows : (Declarant's signature.) Also Personally Appeared and residents of (county, city, or town) persons whom I certify to be respectable, and entitled to credit, and who, being by me duly sworn, say that they were present and saw sign name (or make mark) to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with that is the identical person represents self to be, and that they have no interest in the prosecution of this claim. (Signatures of witnesses.) Sworn to and subscribed before me this day of A.D. 186 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. (Signature of judge or other officer.) Widows should depose that they have not remarried. (221.) Form of Surgeon's Affidavit. Navy Claims. If the claimant for a pension has not been examined, and the degree of his disability certified, before his discharge, by a navy FOKM OF SURGEON'S AFFIDAVIT. 639 surgeon, and if the certificate of a navy surgeon or a board of survey is not obtainable, on satisfactory explanation of this fact, he may produce the affidavit of two surgeons reputable in their profession, and certified as such by the magistrate before whom their statement is sworn to, in accordance with the following form : (Date.) It is hereby certified that who was a in the naval service of the United States (here slate the vessel or station on which applicant was engaged, and his particular service) is suffering from (here give a particular description of the wound, injury, or disease, and specify in what manner it has affected ihe applicant so as to produce disability in the degree stated) and he is thereby not only incapacitated for naval duty, but, in the opinion of the undersigned, is (" three-fourths" " one-half" " one-third" fyc., or " totally," as the case may be) dis- abled from obtaining his subsistence from manual labor. And we further certify that upon satisfactory evidence, and after accurate examination, we believe the said disability was incurred in the naval service of the United States, and in the line of duty. ( , Surgeon.) ( , Surgeon.) Sworn to and subscribed before me this day of A.D. 186 ; aad I hereby certify that the said and are known to me as surgeons in actual practice, reputable in their profession, and that I have no interest, direct or indirect, in the prosecution of this claim. (Magistrate's signature.) GUARDIAN'S CLAIMS UNDER SECTION 4, ACT OF JULY 37, 1868. Guardians, in applying on account of minor children of a soldier whose widow is entitled to pension, may present their claim under the Fourth Section of the Act of July 27, 1868, in accordance with Form 210, with such obvious changes as the nature of the case may demand. SPECIAL ACT CASES. In cases authorized by special acts of Congress, formal declara- tions from the claimants thereunder are required, as in cases under the general law. 640 THE DISPOSAL OF PROPERTY BY WILL. CHAPTER XXXVIH. OF THE rISr*OSAJL, O " where the money recoverable exceeds one thousand dollars, for every additional one thousand dollars, or fractional part thereof 5O Boilds. County, city, and town bonds, railroad and other corporation bonds and scrip, are subject to stamp-duty. [See Mortgage.] " of any description, other than such as are required in legal proceedings, and such as are not otherwise charged in this schedule 23 Certificates of deposit in bank, sum not exceeding one hundred dollars 2 " of deposit in bank, sum exceeding one hundred dollars 5 " of stock in an incorporated company ii" " general 5 " of record upon the instrument recorded, exempt. " of record upon the book, exempt. " of weight or measurement of animals, coal, wood, or other articles, ex- cept weigher's and measurer's returns, exempt. " of a qualification of a Justice of the Peace, Commissioner of Deeds, or Notary Public " of search of records " that certain papers are on file " that certain papers cannot bo found " of redemption of land sold for taxes " of birth, marriage, and death " of qualification of school-teachers " of profits in an incorporated company for a sum not less than ten dol- lars, and not exceeding fifty dollars 1O " exceeding fifty dollars, and not exceeding one thousand dollars 25 " exceeding one thousand dollars, for every additional one thousand dol- lars, or fractional part thereof 25 * of damage, or otherwise, and all other certificates or documents issued by any port warden, marine surveyor, or other person acting as mch. 25 SCHEDULE OF STAMP DUTIES. 659 Dollt. Cti. Certified Transcripts of judgments, satisfaction of judgments, and of all papers recorded or on file 5 [N.B. Asa general rule, every certificate which has or may have a legal value in any court of law or equity will require a stamp-duty of five cents.] Charter Party, or letter, memorandum, or other writing between the captain, owner or agent of any ship, vessel, or steamer, and any other person, relating to the charter of the same, if the registered tonnage of said ship, vessel, or steamer does not exceed one hundred and fifty tons. . . l.OO " exceeding one hundred and fifty tons, and not exceeding three hundred tons 3.OO " exceeding three hundred tons, and not exceeding six hundred tons 5.OO " exceeding six hundred tons 1O.OO Check, draft or order for the payment of any sum of money exceeding ten dol- lars, drawn upon any person other than a bank, banker, or trust com- pany, at sight or on demand 2 Contract. [Sec Agreement. \ " Broker's 1O Conveyance, deed, instrument, or writing, whereby lands, tenements, or other realty sold, shall be conveyed, the actual value of which docs not ex- ceed five hundred dollars 5O " exceeding five hundred dollars, and not exceeding one thousand dollars. l.OO " for every additional five hundred dollars, or fractional part thereof in excess of one thousand dollars >O Entry of any goods, wares, or merchandise at any custom-house, either for consumption or warehousing, not exceeding one hundred dollars in value. i-' ."> " exceeding one hundred dollars, and not exceeding five hundred dollars in value GO " exceeding five hundred dollars in value l.OO " for the withdrawal of any goods or merchandise from bonded warehouse. CO Indorsement of any negotiable instrument, exempt. Insurance (Marine, Inland, and Fire) where the consideration paid for the insurance, in cash, premium notes, or both, docs not exceed ten dollars. 1 " (Marine, Inland, and Fire) exceeding ten dollars, and not exceeding fifty dollars 25 " (Marine, Inland, and Fire) exceeding fifty dollars 5O Insurance (Life), when the amount insured docs not exceed one thousand dollars 25 " (Life) exceeding one thousand dollars, and not exceeding five thousand dollars f> Insurance (Life) exceeding five thousand dollars " (Life) limited to injury to persons while travelling, exempt. 660 STAMP ACT. DoUt. Ctt. Lease of lands or tenements, where rent does not exceed three hundred dollars per annum >O *' exceeding three hundred dollars, for each additional two hundred dol- lars, or fractional part thereof in excess of three hundred dollars .... 6O " perpetual, subject to stamp-duty as a " conveyance," the stamp-duty to be measured by resolving the annual rental into a capital sum. " clause of guaranty of payment of rent, incorporated or indorsed, five cents additional. Manifest for custom-house entry or clearance of the cargo of any ship, vessel, or steamer for a foreign port, if the registered tonnage of such ship, vessel, or steamer, does not exceed three hundred tons l.OO " exceeding three hundred tons, and not exceeding six hundred tons 3.OO ** exceeding six hundred tons 5.OO Mortgage, trust deed, bill of sale, or personal bond for the payment of money exceeding one hundred dollars, and not exceeding five hundred dol- \va 5O " exceeding five hundred dollars, for every additional five hundred dollars, or fractional part thereof in excess of five hundred dollars 5O Fawner's Checks 5 Pension Papers. Powers of attorney, and all other papers relating to ap- plications for bounties, arrearages of pay, or pensions, or to receipt thereof, exempt. Passage Ticket from the United States to a foreign port, costing not more than thirty-five dollars 50 " from the United States to a foreign port, costing more than thirty-five dollars, and not exceeding fifty dollars l.OO " for every additional fifty dollars, or fractional part thereof in excess of fifty dollars l.OO Power of Attorney to sell or transfer stock, or collect dividends thereon. . 25 " to vote at election of incorporated company 1O " to receive or collect rents. 25 " to sell, or convey, or rent, or '/ease real estate l.OO " for any other purpose 5O Probate Of "Will, or letters of administration, where the value of both real and personal estate does not exceed two thousand dollars l.OO " for every additional one thousand dollars, or fractional part thereof in excess ot two thousand dollars 5O " bonds of executors, administrators, guardians, and trustees, are each subject to a stamp-duty of. l.OO Proprietary Medicines and Preparations. For and upon every packet, box, bottle, pot, phial, or other enclosure, containing any pills, powders, tinctures, troches, lozenges, sirups, cordials, bitters, ano- dynes, tonics, plasters, liniments, salves, ointments, pastes, drops, STAMP ACT. r,-;i CU. waters, essences, spirits, oils, or other medicinal preparations or com- positions whatsoever, sold, offered for sale, or removed for consump- tion and sale, by any person or persons whatever, where such packet, box, &c., with its contents, docs not exceed at retail price or value the sum of twenty-five cents ....................................... 1 Exceeding twenty-five, and not exceeding fifty cents .................. 2 Exceeding fifty, and not exceeding seventy-five cents ................. 3 Exceeding seventy-five cents, and not exceeding one dollar ............ 4 Exceeding one dollar, for every additional fifty cents, or fractional part thereof in excess of one dollar .................................. 2 Officinal preparations and medicines mixed or compounded specially for any person according to the written recipe or prescription of any physician or surgeon, exempt. Perfumery and Cosmetics. For and upon every packet, box, bottle, pot, phial, or other enclosure, containing any essence, extract, toilet- water, cosmetic, hair-oil, pomade, hair-dressing, hair-restorative, hair- dyo, tooth-wash, dentifrice, tooth-paste, aromatic cachous, or any simi- lar articles, by whatsoever name the same heretofore have been, now are, or may hereafter be, called, known, or distinguished, used or ap- plied, or to be used or applied as perfumes or applications to the hair, mouth, or skin, sold, offered for sale, or removed for consumption and sale, the same rates per package, &c., as for medicines and prepara- tions. Friction Matches. For and upon every parcel or package of one hun- dred or less .................................... ............... 1 More than one hundred, and not more than two hundred .............. 2 For every additional one hundred, or fractional part thereof ........... 1 Cigar Lights and Wax Tapers, double the rates for friction matches. Canned meats, fruits, vegetables, sauces, sirups, jellies, &c., for every can, not exceeding two pounds in weight ................................. 1 For every additional pound or fraction thereof ...................... 1 Playing Cards. For and upon every pack, not exceeding fifty-two in number, whatever the price ..................................... !> Probate Of "Will, certificate of appointment ........................... 5 Protest upon bill, note, check, or draft ................................... Promissory Note. [See Bills of Exchange, Inland.] " deposit note to mutual insurance companies, when policy is subject to duty, exempt. " renewal of, subject to same duty as an original note. Quit Claim Deed, to be stamped as a conveyance, except when given as a release of a mortgage by the mortgagee to the mortgagor, in which case it is exempt. CG2 SCHEDULE OF STAMP DUTIES. Sollt. Cts. Receipts for the payment of any sum of money, or for the delivery of any property, or for satisfaction of any mortgage or judgment, or decree of any court, are exempt. Sheriff's return on writ, or other process, exempt. Trust Deed, made to secure a debt, to be stamped as a mortgage. " conveying estate to uses, to be stamped as a conveyance. Remarks. A penalty of fifty dollars is imposed upon every person who makes, signs, or issues, or who causes to be made, signed, or issued, any paper of any kind or description what- ever, or who accepts, negotiates, or pays, or causes to be accepted, negotiated, or paid, any bill of exchange, draft, or order, or promissory note, for the payment of money, without the same being duly stamped, or having thereupon an adhesive stamp for denoting the tax chargeable thereon, cancelled in the manner required by law, with intent to evade the provisions of the revenue act. A penalty of two hundred dollars is imposed upon every person who pays, negotiates, or offers in payment, or receives or takes in payment, any bill of exchange or order for the payment of any sum of money, drawn or purporting to be drawn in a foreign coun- try, but payable in the United States, until the proper stamp has been affixed thereto. A penalty of fifty dollars is imposed upon every person who fraudulently makes u=e of an adhesive stamp to denote the duty required by the revenue act, without effectually cancelling and obliterating the same in the manner required by law. Postage stamps cannot be used in payment of the duty chargeable on instruments. It is the duty of the maker of an instrument to affix and cancel the stamp required thereon. If he neglects to do so, the party for whose use it is made may stamp it before it is used ; but in no case can it be legally used without a stamp ; if used without a stamp, it cannot be afterwards effectually stamped. Certificates of loan, in which there shall appear any written or printed evidence of an amount of money to be paid on demand, or at a time designated, are subject to stamp duty as " promissory notes." When two or more persons join in the execution of an instrument, the stamp to which the instrument is liable under the law may be affixed and cancelled by any one of the parties. In conveyance of real estates, the law provides that the stamp affixed must answer to the value of the estate or interest conveyed. No stamp is required on any warrant of attorney accompanying a bond or note, when such bond or note has affixed thereto the stamp or stamps denoting the duty required ; I REMARKS. 663 aud whenever any bond or note is secured by mortgage, but one stamp-duty is required on such papers, and that stamp-duty is the highest rate required for either of these instru- ments. In such case, a note or memorandum of the value or denomination of the stamp nffixed should be made upon the margin or in the acknowledgment of the instrument which is not stamped. In all cases where an adheshv stamp is used for denoting the stamp-duty upon an instrument, the person using or affixing the same must write or imprint thereupon in iiiJfc the initials of his name, and the date (the year, month, and day) on which the same is attached or used. Each stamp should be separately cancelled ; and the entire surface must be exposed to view. INDEX. ABANDONMENT, In the law of marine insur- ance, meaning of, 3S9. not obligatory on insured, 300. necessity of, 390. of the right of, 300, 393. of the exercise of the right of, 301. how made, and by whom, 302. must be distinct, 392. if deficient in form, objections to, how waived, 302. when insured must elect whether or not to abandon, 303. acceptance of by insurer, 393. of the effect of, 394. masters and owners become trustees for the insurers in respect to the property abandoned, 394. loss after must be made up by owner, 304. ACCEPTANCE, of offer, when necessary to make a contract, 48. of bills of exchange, 187. how may be made, cancelled, &C., 187. can be done only by the drawee, his agent, or some one who accepts for his honor, 188. no holder is obliged to receive an accept- ance for honor, 188. holder may accept or refuse a qualified, 187. presentment for, 172. or payment, for honor, 188, 189. of abandonment in insurance, 303. of insurer, not necessary to give full effect to an abandonment, 393. ACCEPTOR, of bill of exchange, 151. of bill, bound to pay the same at maturity, 170. rights and duties of, 187, 188. ACCOMMODATION PAPER, incident* of, ICO. ACKNOWLEDGMENT, neoe*M>/ before record- ing deeds, 430, 437. ADJUSTMENT, of average, 339. by whom mode, 334. when binding, 334. difference between marine and fire policy, in, 418. ADMINISTRATORS, and executors, law of, powers and duties of, 645. AFFIRMATION, of consignee or agent, 357. AGENCY, in general, 192,193. may be established by subsequent ratifica- tion, 195. general rules of, 195, 106. rights of action, growing out of, 200, 201. AGENT, acting under del credere committion, 205. must obey all instructions, 200. commercial jurisdiction over seamen, S46. extent and duration of authority of, 1V7, 198. general and particular, 103. binds the principal by his acts, 192. liability of, 200. may receive his authority how, 194, 196, 190. acts of, may be ratified by principal after- wards, 105. may insure against fire, 408. when master of ship U, 338. in general, is entitled to indemnity from principal, 203. cannot appoint a sub-agent unlets author- ized, 203. is bound to use all reasonable care and skill, 203. Is responsible for any breach of duty, 203. employed to sell property, cannot buy it hiin-.-lf. 204. must ki'op exact account of all doings, 204. Ml 666 IXDEX. AGENT, when he may throw up the agency at pleasure, '.205. authority of, is revoked by insanity, 205. AGREEMENT AND ASSENT (chap, vi.) 45. the legal meaning of, and requirement of, 45. when parties understand each other differ- ently, what their rights, 40. in construing, the intention of the parties always a guide, 47. mistakes of fact in, may be corrected by the courts ; mistakes of law cannot be, 47. what a legal assent is, 48. offers made on time, 48. a bargain made by correspondence, 49. what evidence may be received in reference to a written contract, 51. of custom, or usage, 53. to do work, when broken by promisor, without good cause, he cannot recover,45. rules for determining, when original agree- ment has been somewhat departed from, 96. when may be and when it should be made without seal, 97. when under seal, and so formed that it be- omes an indenture, 97. when by one only, without seal, it is a simple promise, 97. when by one only, under seal, it becomes a bond, 97. to be performed within a year, when not affected by statute of frauds, 139. form and subject-matter of, 139, 140. if name be printed to, may be sufficient signature, 140. AGREEMENT, when it should be written and signed by both parties, 57. not controlled by oral testimony, except in case of fraud, 67. for sale of lands, should always state cov- enants contemplated, 65. for arbitration, not binding on any, unless all have entered into it, 92. ALABAMA, law as to rights of married women in, 17. ALIENATION, in the law of insurance, what is considered such as to terminate the insured's Interest, 417. consent of insurer should be obtained to, 417. of policy, 410. ALLOWANCE, in the law of Insurance, of new for old, 391. ALTERATIONS, of policy of insurance, 364. effect of, on insured property, 405, 406. prudent to obtain insurer's assent to, 406. APPRKNTICES. obligations of the master, 12. obligations of the apprentice, 12, IS. what misconduct of, authorizes a discharge of him by his master, 13. seducing an apprentice away from his mas- ter, liability for, 13. APPLICATION, for insurance, how made, 402. ARKANSAS, law as to rights of married women in, 18. ARBITRATORS, submission to, when it may be set aside by either party, before award made, 240. ARBITRATION, is favored by law, 236. ARTICLES of shipping, 342. ARREST, of vessel, how affecting insurers, 383. ASSIGNMENT, definition of, IOC. of policy of insurance, 364. of policy, avoids it, when, 416. of policy, should be made on it, 421. always best to secure the insurance-compa- ny's assent to, 422. of policy, what constitutes, in life-insurance, 428. ATTACHMENT. See Kecovery of Debts, 599. AUTHORITY, extent and duration of agent's, 197. execution of, must be conformed to with strictness, 199. of ship-master, 338-340. AVERAGE, general, 331, 395. when within the scope of insurance, 395. what is not included in, 332. adjustment of, 333. adjustment of, by whom made, when, 334. AWARD, essentials of, 236. must be certain, 237. must be possible, 237. when fully made, none of the parties have further control, 241. should be sealed up and delivered to all tb parties, 242. must be reasonable, 238. must be final and conclusive, 238. no especial form of, necessary, 239. the directions in submission of, must be strictly followed, 239. set aside, if " procured by corruption or un- due means," 239. set aside, if the arbitrator has made a mate- rial mistake of law or fact, 239. B. BAILEE, may Insure against fire, 408, 409. HANKS, receive more than legal interest, 274. BANK BILLS, are promissory notes of a baui, payable to bearer, 164. INDEX. 607 BANK BILLS, a good tender, unless objected to at the time, liH. BANK CHKCK, Is a BUI of Exchange, NH. requires no acceptance, 164. if drawn when drawer has no funds In the bank, it is a fraud, 1G5. usually payable to bearer, 163. is not payment till cashed, 105. countermanded by death of drawer, 1C5. if a bank pay a forged, it is Its own loss, 165. BANKRUPTCY, abstract of statute of, 279-297. rules in, 298-304. BAOOAGE, carrier liable for reasonable amount of, 257, 258. what has been held as, 257, 258. BARGAIN, naked, is when no consideration is given, 90. for real property, void when oral, 443. BARRATKY, how defined, 383. how provided against in the policy, 383. BILL OK LADING, essentials of, 321-323. signed by master of ship, 322. evidence against shipowners, 322. how given in case of charter parties, 328. BILL, of Exchange, legal meaning of, 143. foreign and inland, 166, 167. maker or acceptor of, how bound to pay the same, 170. what is meant by foreign, 178. loss of, no excuse for not protesting it, 178. notarial seal, evidence of dishonor of for- eign, 178. paid at maturity ceases to be negotiable, 186. portion of, cannot be transferred, 186. may be transferred by indorsement of exec- utor, after death of the holder, ISO. of sale of vessel, 347. of Exchange, is what, 157. diU'erence between parties to promissory note and parties to, 157. BLOCKADE, what it is, and law of, 383. when it may be run, 384. BOND, essentials of, 97. condition of, 98. of bottomry, 319, 320, 356. of respondentia, by whom given, 340. " applies to what, 340. BOTTOMRY, contract of, 318-320. bond of, 319,320, 356. pledge, when justified, 339. BROKERS, have generally no authority to re- ceive payment, 207. Brsixicss LAW, in general, in chap. 11., 5. BUYER, acquires the right to consider no sale as made, if the seller neglects or refuses to deliver the goods in reasonable time, 113. 44 BCYER, when Imposed upon by fraudulent rale must at once exercise right of annulling it, a* soon u he knows the fraud, 121. C. CALIFORNIA, law as to rights of married wo- men in, 18. CAPTURE, how affecting Insurers, 383. CARGO, a part of the, when legal, may be in- sured, 369. when sold, or pledged by master, 340. CARRIER, is liable only for good* delivered to him, 259. la liable only for injuries done by himself or servant* to third persons, 259, 260. private, liability of, 244. when gratuitous bailee, 244. private, liable for gross negligence, 243. common, who is a, 245. " rights and responsibilities of, 245. " distinction between private and, 243. u who are chargeable as, 246, 247. " obligation of, 248, 251. " cannot refuse goods offered with- out good cause, " IB bound to receive goods in a suitable way, and at suitable times and places, 248. " is bound to comply with direc- tions, 2. 44 obligation a* to passenger*, 249, 250. 44 obligation as to delivery of good*, 250, ail. " immediate notice mast be given when net delivered to owner or agent, 251. " lien of, on goods, 252. " liability of, 252,254. " liable for loss happening under his charge, except for act of God or public enemy, 'J53. M liable for loss by flre, - " general principle* of agency ap- ply to, :&i. " may be liable beyond hi* own route, 254. of passenger*. I* under more limited lUtuli ty than carrier of good*, 254, 255. common, ha* a right to modify his liabili- ty by bargain. 'A'.:, notice by, if reasonable and jnt, is binding, 256. liability of, for goods carried by pawcn gers, 267-300. 668 INDEX. CARRIER, liable for necessary amount of bag- gage, 257, 258. may insure against fire, 409. CHARTER, power of master to, 339. CHARTERER, of ship, rights of, &.*9, 330. CHARTER PARTT, 351. defined, 327. no particular form for, 328. bow suspended or annulled, 331. contract of, may be dissolved how, 330, 331. CHOSES IN POSSESSION, a law-term, explained, 15, 16. CHOSES ix ACTION, a law-term, explained, 15, 16. CLAIM, for contribution, 333. of iasured, founded on interest, 366. CODICILS, meaning of, law of, and rules con- cerning, 045. COLLISION, who liable for, 340. rules in regard to, 341. a peril of the sea, 381. COMMON CARRIER. See Carrier. COMMON LAW, as distinguished from stat- utes, 5. COMMERCE, power to regulate, In Congress, 311. COMMERCIAL AGENTS, Jurisdiction of, over seamen, 345. COMPOUND INTEHEST. See Interest. COMPANIES, for effecting fire Insurance, 399. mutual, compared with joint stock, 399. usage of each other, may be appealed to In what cases, 400. all insured, become members in mutual fire insurance, 402. COMPLIANCE, with terms offered, when It makes a contract, 48. CONCEALMENT and misrepresentation, 375, 376. converse of misrepresentation, 412. effect of, 412. when would operate as fraud, and avoid the policy, 413. in case of life-insurance, 429-431. CONDITION, of a bond, 98. on which application for insurance Is based, 402. effect of, in deed, 442. CONFESSION, of judgment, 189. COKSECTICUT, law as to rights of married wo- men In, 19. OOXSIDKRATIOS, required to support a prom- ise, 90. exceptions to the rule requiring considera- tion for a promise, 90. sufficiency of, 91. what is a sufficient, 91, 92, 93. CONSIDERATION, cannot be any thing by which the public interests are harmed, 92. one promise is sufficient, for another, 92. failure of, 94. when failure is partial only, may be foun- dation for promise, 95. merely moral, is not in law a sufficiently legal, 93. Illegal, 93. impossible, 94. implied by seal, 96. need not be alleged in a bond, 98. need not be expressed in agreement, 139. what it may be, valuable, legal, or moral, 170. none sufficient when illegal, 170. may be illegal, in how many ways, 170. for the insurance, 352. CONSIGNEE, may assign bill of lading, 322. * cannot abandon goods for freig-ht so long as they remain " in specie," 326. oath or affirmation, 357. may insure against fire, 408. may cover in one policy, in his own name, goods of various consignors, 408. not bound to insure, but may in his discre- tion, 408. CONSTRUCTION, of statute of limitations, 264. CONSULS, jurisdiction of, over seamen, 345. CONTRACT, for building, should always be ac- companied by specifications, 73. void for illegality or fraud, 120. when " wager," 120, 121. is vitiated and avoided by fraud, 121. in general, the law of place governs every, 167. law of the court determines all questions as to remedy on a, 167, 168. for usury, wholly void, 271. foreign, for usury, valid everywhere but in the State where suit is brought, may be enforced there, 273. law of place of, governs construction of, 306. valid where made, valid elsewhere, 306. invalid where made, invalid everywhere, 306. is made when, 307. Is made where, 307. as influenced by law of place, 307, 308, of bottomry, 318-3UO. of affreightment, is entire, 323. of charter party, how dissolved, 330, 33U of Insurance, 365. of insurance, when complete, 400. of insurance, must be strictly regarded, 400. INDEX. r,r,9 CONTRIBUTION, claim for, during embargo or capture, 332. how made, 332. for ship's repairs, 333. CONVEYANCES, of ships, recorded, 314. by one insured, when treated as a mort- gage, 417. COVENANTS, of special or general warranty, should be seated In agreement for sole of lands, 05. of warranty, In deed, 440, 441. COPYRIGHTS, law of, 601. what may be the subject of, 501. how copyrights may be obtained, 502. period of time for which they secure the right, 592. punishment for Infringement of copyright, 694. agreement respecting copyright* and pub- lishing, 596. COVERTURE, a law-term, moans marriage. CREDITORS, partnership, cannot attach private property till private creditors are satisfied, 227. levy of private, on partnership property, confers only what the partner has, 228. have an insurable interest in life of their debtor, 427. CUSTOM, of merchants, Us force and effect, 6. not valid if illegal, 6. has no force when contract made expressly to the contrary, 67. or usage, made use of in construing the meaning and effect of a contract, and of the words used, 53, 64. never considered, If parties expressly agree to disregard it, 55. D. DAMAGES, when liquidated, when unliquidat- ed, 127, 270. DEBT, barred under statute of limitations, 263. DEBTOR, may insure his life in favor of credit- or, 427. DEBTS, recovery of, 599. DEED, meaning of, legal and common, 4^.3. should be signed, and in what manner, 433, 434. seal of, is what, 434. should be delivered, 434, 435. may be delivered by what persons, 435. execution of, should be attested by wit- nesses, 435, 406. acknowledgment of, Incidents of, 43fi,437. most be registered in the proper recording office, 437. DEEP, effect of non-recording, 437,438, should be dated, 438. customary to name consideration In, 438, 439. receipt of consideration In, docs not bind ellcr, 439. description of land In, should be minute, and accurate, 439. when conferring life-interest merely, 4W. when conferring fee simple, 439. terminated by clause of execution, 440. of warranty, or of quit-claim, 440. Of quit-claim, with warranty, 441, 442. hardly safe to have condition in, 44 i as to husband and wife joining in, 442. variety of, 443. deed-poll explained, 444. of indenture, 444. of mortgage, 490. DELAWARE, law as to rights of married wo- men in, 20. DELIVERY, what is sufficient to constitute, 115, 116, 118. as bearing on the validity of the trantao- tton, 117. of policy, not essential, 400. necessary to assignment of life -policy, 428. essential to validity of deed, 431, 435. of deed, may be mude by whom, ):;.">. DEMAND OK PAYMENT, is sufficient, if made at residence or place of business of payee, 174. and refusal, what constitutes, 174. bankruptcy or insolvency no excuse for non-demand, 174, 175. should be made at the proper place, 176. for payments should be made at the place designated in the instrument, 177. DESCRIPTION, of property insured, 378. DEMURRAGE, law respecting, 330. In the policy of Insurance, 401. of insured property, held to amount to what 404. DESERTION, of seamen, how punished, 345, DEVIATION, how defined, 385. bow affects insurers, 385. DOMICIL, of person, how determined, 306-311. a person can have but one, 301). tirttt is retained till second is acquired, 310. may be changed how, 309. womau marrying acquires her husband's, 810. of the father determines that of child, 310, 311. DRAWER, to bill of exchange, 157. 670 E. EQUITY OF REDEMPTION, of niortgagor, 491. EVIDENCE, of death, what must be, 426. may disprove receipt in deed, 439. cannot be received to contradict or change the effect of a written contract, but may be received to explain it, 01. EXCEPTION, to common law rule, In case of negotiable paper, 168, 169. statutory, under statute of limitations, 207. EXECUTOR, may indorse bill or note after death of holder, l6. EXECUTORS, law of, powers and duties of, 645. EXECUTION, of authority, 199. of fire policy, 400. EXEMPTION, of property, from attachment or execution, 600. EXPLANATION, of a written contract, by evi- dence, law as to, 51, 52. F. FACTOR, may pledge goods for advances to principal, 206. must obey all instructions, 2C6. liable to principal for default, 206. may insure goods in possession, 206. m.iy use his own name in all transactions, aw. distinction between foreign and domestic, '.'07, 208. cannot claim his commissions till his whole duty be performed, 207. FEME COVERT, a law-term, means a married woman. FEME SOLE, a luw-tcrm, means a single woman. FIKE INSURANCE, to what applied, 398. by whom effected, 398. different kinds of companies for, 398, 399. method of, 400. FOUKCLOSURE OF MORTGAGE, explained, 492. FOREIGN AND INLAND HILLS, 106, 107. FLORIDA, law as to rights of married women in, 20. FRAUD, annuls all obligations and all contracts tainted by it, 47. mere silence in seller, In general, is not, 122. vitiates and avoids all sales, 121. may be waived, when, 121. if waived, when action is brought to en- force the contract, 121. statute of, purposes and provisions, 136, 137, 140. FREIGHT, Is not earned unless the goods ar carried to place of destination, 323, 324. rule for, " pro rata itlneris," 323, 324. cannot be earned by illegal voyage, 326. paid in advance, not afterwards earned, must be repaid, 325. party receiving goods becomes liable for, 325. lender on bottomry bond has no right to, 326. mortgagee not in possession has no right to, 326. is payable when goods are delivered, In specie, though damaged, 326. word, used how, 320, 321. law of, 321. meaning of, 3G9. interest in, 369. subject of insurance, 369. G. GARNISIIEE PROCESS. See Kecovery of Debts, 599. GENERAL AVERAGE, 331, 395. sacrifice must be voluntary, necessary, and effectual, 331. law of, rests on, 332. goods not contributed for, when, 332. held for contribution, 334. when jettisoned, owner liable to contri- bution, 337. value of insured, 367. rules relative to total loss of, &c., 395. GENERAL AGENCY. See Agency, 331. GENERAL AGENT, master of ship is, 339. GEORGIA, law as to rights of married women in, 20. GUARANTOR, who is, 130. who pay principal's debt, may demand from the creditor the securities he holds, 131. not bound, unless he has knowledge of the acceptance of his guaranty, 131. discharged, it principal's liability is changed without guarantor's consent, 131. discharged, if the liability is extended by law, 132. not always discharged by creditor's giving debtor some accommodation or indul- gence, 132. should have reasonable notice of princi- pal's failure, 133. of a note or bill, is not entitled to as strict notice as indorser is, 181. GUARANTY, incidents of, 130, 133. not'generally negotiable, 130. INDEX. 671 GUARANTY, may be enforced when original debt cannot be, 130. contract of, construed strictly, 130, 131. unless by sealed instrument, must be sup- ported by a consideration, 131. not binding; unless accepted, 131. specific, is not revocable, 132. If by an official, be Is not bound personally, 133. margin, what ia, 134, 135. oral, prevented by law, 137. effect of changing membership In the, 226. GUARDIANS, law of, powers and duties of, 655. H. HOLDER, what he may do with a bill or note, 171. of negotiable paper, rights and duties of, 171. of bill, It is prudent for him to present the bill for acceptance without delay, 172. ill health on part of, may excuse delay in presentment, 173. may refuse a qualified acceptance, 187. may cancel the acceptance, 187. is not obliged to receive acceptance for honor, 188. HOMESTEAD, law of, 600. 11 USB AND, bound to support his wife while sh lives with him, or if he sends her away without good cause, 37. a man is bound to support as his wife one whom he lives with, and represents as his wife, 37. may indorse a note or bill given to the wife before marriage, 180. IGNORANCE OF LAW, excuses no one, 47. ILLINOIS, law as to rights of married women In, 21. INDIANA, law as to rights of married women in, 21. INDORSEE of bill of exchange, 161. INDORSEMENT, is what, 184. by law merchant, bills and notes payable to order are rightfully transferred only by, 183. in full, or In blank, 183. as to special, 184. Joint payees who are not partners must Join In, 186. INDORSEMENT, the signature! of all previous Indorsers are admitted by each, 166. mar be restored, if truck out by mistake, 185. may be made on the paper before the note or bill be drawn, 180. in blank, or in full, what they are, 182. INDOKSKK, each admits by his indorsement th# genuineness of each previous, 188. may make a bill payable to himself alone by special indorsement, 185. of bill of exchange, 151. rights and duller of, 183. INFANTS, or minors, chap. 111., 7. who are, 8. when persons ceae to be, 8. promise of, if not for necessaries, voidable, by the infant, 8. promise of, for necessaries, not voidable by him, 9. promise of, may be confirmed without words, 0. liable for frauds of any kind; therefore liable if he obtains goods or money by representing himself of full age, 10, 11. ratifies his promise to pay by keeping the thing for which he promised to pay, 9. necessaries, what are, 10. if one avoids a contract because mode in infancy, hi* can take no benefit from it, 10. liable for torts, or wrong-doing, 10. IOWA, law as to rights of married women in, 22. INSANITY, of principal or agent, revokes au- thority, 205. INSTRUMENTS, irregular and ambiguous, 163. INSURABLE INTEREST, and how discharged, 367,308. INSURANCE, policy of, 302. company not bound to Insure all, 342. marine, how effected, 362, 363. bow affected by date of policy, 303. proposals for, 363. constructive, 363. who may effect, 363. bow it is construed, 364. sustained by compliance with registry law*, how, 369. simultaneous, 370. effect of prior, 370. on freight, SOB. * double, 371. against piracy, 382. against robbery, 382. against theft, 382. terminates when, 388, 389. purpose and principle of the Uw of, 896. 672 INDEX. INSURANCE, effect of, in case of partial loss, 397. contract for, when complete, 400. application how obtained, 102. on what conditions made, 402. must be actual authority to make, 409. double, not allowed, 409. double, how avoided by charter of company, 410. evidence of overstatement of loss in, 419. fire, no rule in, for deducting one-third new for old, 419. companies require sworn statement of cir- cumstances of loss, i~V. against accident, disease, and dishonesty of servants, 432. INSURED, must communicate what things, 370, 377. must account for proceeds of sale when made by the master under necessity, 392. may abandon, when, 393. become members of mutual insurance-com- panies, 402. party, bound by what rules, 403. all become members when insured in mu- tual insurance-companies, 402. must have an interest in the property in- sured, 416. when liable for assessments after loss un- der mutual policy, 419. must have an interest in life-insurance, 427. IXBURER, how bound by the contract, 362. discharged by concealment or misrepresen- tation, 376. liable for what risks, 379, 3SO. when liable for collision, 381. bow far answerable for perils of the sea, 331. held for losses by fire, 382. liable for theft after shipwreck, 332. liable for misconduct of the crew, when, 383. when liable under the general clause, 384. liabilities in case of prohibited or contra- band trade, 384. liabilities in case of capture, arrest, or de- tention, 383. bow affected by detention, 383. bow affected by deviation, 385. by payment for loss, acquire the insured's claim for contribution, &c., 394, 396. ' when discharged by alterations, 404. must know whom they insure, 409. should be informed of what facto, 412, *13. INSURER, risk incurred by, 413, 414. when not chargeable, 414. whether held for loss occasioned by negli- gence of the insured or his servants, 414. liable for buildings blown up to check fires, 414. when liable for property destroyed by light- ning, 414. never held to pay more than sum insured, 416. INSURERS, against fire, not held to pay for loss of profits, 418. pay whole amount lost, when covered by policy, 418. have a right to rebuild premises when de- stroyed, 418. INTENTION, in construction of policy, 401. INTEREST, is what, 209. may be demanded, on what grounds, 269. is allowed by law, how, 209. not generally recoverable, when, 270. laws regulating, 270. when usurious, 209. banks receive more than legal, 274. compound, incidents of, 270, 277. compound, is not strictly usurious, 276. method of computing, 277. insured's claim founded on, 366. insurable, 307. iusurable, how discharged, 308. of the insured, 407. of mortgagor and mortgagee, as to insuring mortgaged property, 407. who have, an insurable interest, 407, 408. exception as to the rule of any one allowed to insure property as his own in which he has a legal interest, 408. of the insured in life-insurance, 427. J. JOINT-TENANCY, and JOINT-TENANTS, law- terms; when two or more persons own any thing jointly, as joint-tenants, if one dies, the survivor or survivors take the share or interest of the deceased person, 229. JUDGMENT, confession of, 189. JURISDICTION, over salvage cases, 338. KENTUCKY, laws* to rights of married women in, 23. INDEX. 673 LANDS can be transferred by deed only, 433. LAW-MKR* 'IIANT, what is meant by it, 6. LAW-TERMS, some explanation of, 7. LAW OF PLACE, 167. what is meant by, 305. as influencing contracts, 307, 308. general principles of, 305, 300. of a State binds all persons and things with- in the limits of the State, 305, 300. has no forco beyond the limits of the State, 306. of foreign States, have, by comity, a quali- fied influence, 300. of contract, governs the effect of the con- tract In regard to personal property, 300. of real property, governs the construction of the contract, 300. LAW, of shipping, how considered, 311. of freight. 321. of foreign country is presumed to be the same as in tho place of suit, in absence of testimony, 108. LAWS, regulating pilotage, 346. regulating interest and usury, 277. LAY-DAYS, are what, 329. LEASE, definition of contract of, 517. what pusses to tenant under, 517. duties and obligations of landlord under, 517. rights and duties of tenant under, 517, 520. privilege of underletting by tenant under, 619. tenant when entitled to crops sown during the, 519. rights of tenant after expiration of, 519, 520. what fixtures may be removed at expira- tion of, 520, 521. LENDER may charge extra price for risk In- curred, 273, 274. on bottomry bond has no right to freight, 320. LIABILITY of an agent, 200. of carrier for baggage of passengers, 257, 258. of carrier may be modified by notice, 255, 250. of carrier, to third persons, for Injury done them by carrier or servant*, 259, 200. of Insurers, not affected by risk of the market, 397. none attaches to the insurers for a loss oc- curring by natural or other causes not in- sured against, before a loss insured against happens, 398. LIABILITY of master for discharging seamen, 345. LETTER, contract by, 60. " " completed when letter of acceptance mailed, 50. LIBEL, when presented, 330. LIBERTY POLICIES, 380. LIEN, mean* the right of the seller to retain the property till some claim he has is satis- fied, 112. is lost by the seller, if the goods are deliv- ered, 001. of bottomry bond, depends not on posses- sion, 320. ship has, on goods for freight, 323. of seamen, on ship and freight for wages, 343. of material men, for supplies to ships, 347. of carrier, on goods, 252. of mechanics and material men, law of, with forms and directions, C01. LIFE-INSURANCE, purpose and method of, 423. ho'w effected, 423. rules of contracts applicable to, 423. premium for, how paid, 424. i LIFE-POLICIES, assignable at law, 427, 428. LIMITATIONS, statute of, 203. statute of, construction of, 204. statute of, new promise under, 2G4, 205. statute of, part payment under, 205, 200. statute of, when period of limitation begins under, 207, 268. statute of, statutory exceptions under, 207. statute of, does not affect collateral secu- rity, 208. of owner's liability for master's misdeeds, 342. Loss, how divided for average and contribu- tion, 3-34. and abaudoment, 389. no total, by abandonment, unless the injury exceeds fifty per cent, 391. by jettison, salvage, &c., included in esti- mate of the, 391. after abandonment, must be made up by owner, 394. insurers entitled to possession after pay- ment for total, 394. of several insured shipments, there may be total loss of one, partial of another, 395. when partial, 390. rule for averaging, by allowing one-third for new, 390.- third part of, what deducted from, .197. what would be evidence of overstatement of, 419. LCVISIANA, law as to rights of married women in, 23. 674 INDEX. II. MAKER, of promissory note, 158. rights and duties of, of negotiable paper, 170. of a bill, la bound to pay the same at matu- rity, 170. MAIL, putting a letter in, effect of as to con- tract, 60. MAINE, law as to rights of married women in, 25. MARINE INSURANCE. See Insurance. MARYLAND, law as to rights of married women in, 25. MARRIED WOMEN (chap. v.) ( 15. rights of the husband at common law, as to, 15. all the property, real or personal, 15, 16. common law as to, not just or right, and changed by statute in nearly all our States, 17. law of, as it stands in the statutes of the several States, ABSTRACT of, 17-36. wife may always be agent of her husband, 36. the frequent necessity of putting their property under trust, and how it can be done, 37. MASSACHUSETTS, law as to rights of married women in, 26. MASTER OF Sim-, should sign bill of lading, 322. and officers, not salvors, 337. MASTER, holding goods for contribution, 336. powers and duties of, 338. power to sell the ship, 339. his liability for discharging seamen, 315. duties of repairing ship, 344. MATERIAL MEN, lien of, 347. See Liens of Mechanics and Material Men. MECHANICS, liens of, 601. MICHIGAN, law as to rights of married women in, 28. MISREPRESENTATION AND CONCEALMENT, 375, 376. MISSISSIPPI, law as to rights of married wo- mln in, 28. MISSOURI, law as to rights of married women In, 20. MISTAKES of fact may be corrected by the courts, but mistakes of law will not be, 47. MORTGAGE OF LAND, or real estate, 490. law of, and rules concerning, 491. of the equity of redemption, 491. of foreclosure, 491. of the mortgagor's right to possession, 492. MORTGAGE of insurance by the mortgagee, 492. MORTGAGE, of vessel, 349. purpose of, 490. how made of personal property, 490. how expressed, 490. containing power of sale, 491. MORTGAGE OF PERSONAL PROPERTY, not so formal as for land, 550. mortgagor may retain possession if mort- gage be recorded, 521. equity of redemption shorter than in land, 621. cannot be made of property to be after- wards acquired, 621. duties and liabilities of pledgee under, 521, 622. difference between.mortgagee and pledgee in, 522. pledgee under, cannot sell the pledge be- fore the debt is due, 522. under, pledgee may sell the pledge when the debt is due, and after notice given, 622. MORTGAGEE of ship, ia possession, liable as owner, 318. of ship, not in possession, no right to freight, 320. Insurable interest in property, 407. has what title to land mortgaged, 490, 491. MORTGAGOR, insurable interest of, in prop- erty, 407. right of, in regard to mortgaged land, 491, 492. duties of, in regard to redemption, 492. MUTUAL INSURANCE-COMPANIES, amount in- sured in, 400. NEGOTIABLE PAPER, what is meant by, 156. rules of law on subject of, are technical and exact, 150. what is essential to, 159. difference between what is, and what ia not, 159. time of payment of, must be certain, 160. must be payable in money, ICO. may be written in pen or pencil, on paper or any proper substitute, and in any Ian- gunge, 160. as to form of, 160. omission of certain words maybe supplied, 101. contingency apparent on the face of, pre- vents negotiability, 101. INDEX. 675 NEGOTIABLE PAPER, as to whether certain notes are, 161, 162. exception to common law rule in case of, 108, 109. of transfer after dishonor of, 172. rights and duties of holder of, 171. rights and duties of maker of, 171. payable at a time certain, is entitled to days of grace, 175. in general, all parties to, entitled to notice are discharged for want of it, 182. bill or note ceases to be, when paid, 180. NEUTRALITY, warranty of, 373. NEW PROMISE, by one who had made the ori- ginal promise when an infant, 8. a mere acknowledgment not enough, 8. may be conditional, 8. if conditional, condition must be performed, 8. NOTE, promissory, differs from bill of ex- change, 158. indorsed in blank always transferable by delivery, 162. when Incomplete and invalid, 103. to a fictitious payee, with same name in- dorsed by maker, will be held the mak- er's own note, 163. payable to different persons, in the alterna- tive, not good, 1C3. payable at anyplace should be demanded there, 177. when not presented for payment, all parties but acceptor or maker are discharged, 177. sale of, when amounting to usury, 274-270. NOTICE, of protest, must be given, even to one who has knowledge, 178. no particular form of necessary, 178. if letter be put in the office, any miscar- riage does not affect the party giving notice, 179. should be sent by public post, 179. should be sent to place of business or resi- dence of party notified, 179. of non-payment, should be sent in reason- able time, 179. right to, may be waived by agreement, 182. death or severe illness in excuse for delay of, 182. want of, may be cured by express promise to pay, 182. NOTICE OF NON-PAYMENT, there Is no pre- sumption of, 160. each party receiving, has a day before he is to send it forward, 179, 180. should be given only by a party liable on the instrument, 180. NOTICE OF NON-PAYMENT, must be given to every antecedent party who is to be held, 180. may be given to a party personally or hit agent, 1S1. may be given to either of partners jointly liable; if not partners, then to each one, 181. one transferring, without indorsement by delivery, is not generally entitled to, 181. to agent is notice to the principal, 201. common carrier has a right to modify his liability by, 250. of carrier's liability, may be indirectly brought home to a person, 250. general, will be enough to give to agents of Insurer in case of loss, 418. O. OBLIGEE, one to whom the obligor Is bound In a bond, 97. OBLIGOR, one boun 1 by a bond, 97. held to pay so much only as will indemnify the obligee, 98. OFFICERS OF SHIP, not salvors, 337. OWNER, may recover goods from an honest purchaser who has bought from one with defective title, 113. cannot recover from one who bought in good faith from one who bought fraudu- lently from the owner, 113. OWNERS, when bound by master's acts, 339 340. when liable for injuries done by master, 340. of sacrificed property acquire claim forcon- tributiou, 30C. P. PARTNERS, liability and authority begin when, 215. may share the profits or losses as they choose, 215. persons may be liable as, to third persona who are not as between themselves, 216. who is a secret, dormant, or nominal, 210. factors, brokers, &c., arc not partners with those employing them, 217. may dissolve the partnership at pleasure when working no disadvantage to tlio others, 217. dissolution occurs by death of a general or special, 218. dissolution also when one partner's whole Interest is sold on execution, 218. dormant or secret partner is not liable for debt contracted niter his rctiri'nunt. !4W. 676 INDEX. PARTNERS, should give notice of retirement, 219. each one is agent for all, 220. one cannot bind the firm by a guaranty, a letter of credit, or submission to arbitra- tion without authority, 221. may bind the firm by instrument under seal, 221. must act as such, to bind the firm, 222. reception of a new, makes a new firm, 222. borrowing money for partnership purposes creates a partnership debt, 223. obtaining credit for partnership purposes makes the firm liable, 223. partner in general cannot sue another for claim growing out of partnership inter- ests, 224. either may sue for balance on adjustment of accounts, 225. may sue his copartner for money advanced before partnership formed, 225. who pays more than his share of a debt must charge the firm, 225. the firm may sue for goods sold in the name of one, 226. surviving, are tenants in common only with representatives of deceased, 229. PARTNERSHIP, is not created by single Joint transaction, 214. all persons competent to do business on their own account may enter into, 214. when created, 214. no especial form is necessary for, 215. may be formed how, 215. usually la but one business name to a, 217. principal test of, is participation in profits, 216. may hold real as well as personal estate, 219, 220. can have no seal at law, 221. money lent one partner for partnership purposes, makes a debt of the, 223. firm is liable only to one who deals with a partner in good faith, 223. may be liable for injury caused by criminal acts of a partner, 224. funds of, must first be applied to partner- ship debts, 227. creditors cannot attach private property till private creditors are satisfied, 227. property goes, in case of death of one part- ner, to the others, only for purpose of set- tlement, 229. limited, requisites of, 230. effect of dissolution of, 229, 230. dissolution of, held to avcid policy of in- turance, 417. PAST OWXERS OF SHIPS rlghtf and obliga- tions of, 316-318. of ships, not necessarily partners, 316. may sell his share of ship, 316. all are liable for repairs to ship, 316. ship's husband, is commonly one of, 317. PASSAGE-MONEY, rules of, analogous to thosi of freight, 327. PASSENGER, may be salvor, 337. PATENTS, the law of, 558. what may be patented, 558. who is entitled to a patent, 558. what will prevent the granting of a patent, 658. mode of proceeding to obtain a patent, 559. applications ; what, and how to be made, 559. specifications; what, and how to be made 560. oath, or affirmation ; what, and how to be made, 502. foreigners ; what they must do, 562. drawings ; how they must be made and sent to the patent-office, 562. model ; how it must be made and sent to the patent-office, 563. photographs; when admitted, and how prepared, 564. examination, when, and how made in the patent office, 564. protests; what they must be, and their effect, 565. appeals to the examiners in chief, 566. appeals to the Supreme Court of the Dis- trict of Columbia, 566. rules regulating the above appeals, 567. interferences, 568. re-issues, and surrender, 569. disclaimers, 471. extensions, 572. designs, how they may be patented, 674. foreign patents, do not prevent taking one here, 676. caveats, 577. assignments and grants of patent-rights,579. fees payable to the patent-office; what, and how payable, 581. testimony, how taken and transmitted, 583. papers, filiug in the office, and preservation there, 5N5. amendments in specification and claim, when and how made, 586. TRADEMARKS, protected; and enndry provis- ions of the statute respecting them, and how they should be described and record- ed, given i;i full, 583. INDEX. 677 TRADEMARKS, information and assistance given by the office, 590. PAYEE, of bill of exchange, 157. of promissory note, 158. must be designated, 102. PAYMENT, how may be made, Ml. negotiable bill or note, la not an absolute, 142. appropriation of, among several debts, 142, 143. may be appropriated at time of, by payor, 143. Impossibility of presenting a bill for, ex- cuse some delay, 175. time of, in negotiable paper, must not de- pend on a contingency, 100. of negotiable paper, must be in money, 160. of bills, notes, &c., Is to be demanded promptly, though need not be done in- stantly, 170. demand of, is sufficient, if made at usual residence or place of business of payer, 174. what constitutes demand, and refusal of, 174. bankruptcy or insolvency no excuse for not demanding, 174, 175. bills on demand should be presented in a reasonable time for, 170. every demand for, should be made at the proper place, 170. ptrt, takes debt from under statute of limi- tation, S.'G5, 200. debtor may appropriate, to any one of several debts, 200. PENALTY, of a bond, 97. for not signing shipping 1 articles, 343. for discharging seamen without their con- sent, 344. PENSIONS, abstract of the laws concerning every class of pensions, with the rules of the comrai.si'ioner of pensions, and forms and directions for all applicants, 005-039. PERILS, of the sea, 381. by fire, :;vj. PILOTS, responsibilities of, 340. PLACE, what is meant by law of, 305. general principles of law of, 305, 300. law of, influencing contracts, 307, 308. POLICY, of insurance, 302. subsequent additions to, 301. of insurance, how affected by assignment, 304. of insurance, assignment of, 304. of Insurance, when altered, 364. when open or valued, 305. wager, 306. POLICY, value Insured in nn open, 306. memorandum in, 371. express warranty in, 372. embraces what perils, 379. providing against barratry by clause In, S83. liberty, 388. as to total loss, in the provisions of the, 391. valuation in the, generally determines the estimate of the loss, 391. of lire-insurance, what necessary to execu- tion of, 400. when delayed, and company not bound, 400. subsequent ratification by an agent, what effect, 400. of lire-insurance, how constructed as to de- scription, 401. Intention must bo expressed in, 401. words " stock in trade," include what in, 401. memorandum on back of, 402. mistake in, 402. when some parts written, some printed, 403. containing scale of premiums, 403. when void, for false statement of applicant, 403. how affected by greater hazard for a time, 405, 400. when made by consignee will be construed to cover his interest only, when no inter- est is expressed, 408. by commission-merchant, in his own name, when it may cover goods of various con- signors, 408. provisions against double insurance, 409, 410. when separate statements are part of, 411. indorsement made upon, may take effect as part of, though, made before executed, 411. when statement not construed as port of, 411. difference between marine and fire, 412. when avoided by misrepresentations or con- cealments, 412. always avoided by warranty broken, 412. parties rnay make a valued, 415. is personal contract between the parties, 410. against fire, contains provision against as- signment, 410. production of, certificate of loss, is condi- tion precedent to payment, 417. difference of adjustment between marina and fire, 418. assignment of, should be made on It, 421. 678 INDEX. POLICY, assent of insurers had best be obtained to assignment of, 422. time of death in case of life-insurance has important effect on payment of the, 425. restrictions on the life insured in the, 420. when avoided by death by suicide, 4~ > 0. takes effect from date, 387. never attaches in case of unreasonable de- lay in sailing, 387. how affected by the words " at," " to," and " at and from," 387, 388. on goods attaches when, 387. PORT, what is meant by, in policy, 388. POWER, to sell, implies power to warrant, &c., 197. of ship-master, 338-040. of attorney, law of, 358. PREMIUM, when due and how paid, 377, 378. when may be returned, 378. how paid in case of life-insurance, 424. in case of life insurance when paid, 425. extra, required in what cases, 4-0. PRESENTMENT, for acceptance, 172. should be made during business-hours, 173. should be made to drawee or his agent, 173. for demand of payment, 173, 174. for demand of payment, same for notes and bills, 173. for demand of payment, universal rule of law merchant in regard to, 174. PRINCIPAL, is bound by acts of the agent, 192, 104. may confer authority on agent how, 194. has power of revocation in general, 193. when undisclosed, may show that the nom- inal party was actually his agent, 200, 201. Is responsible for injuries resulting from a fraudulent representation of the agent, 201. is bound by payment of money to an agent only when done in regular course of busi- ness, 201. not responsible for criminal acts, unless he expressly commanded them, 202. who accepts the benefit of an act done by Iiij agent discharges him from responsi- bility therefor, 202. general rule Is, he may revoke his agent's authority at pleasure, 205. cannot revoke authority given to factor after advances made, 287. PROFITS, how valued and insured, 300. PROMISE, of promissory note, 158. must be supported by a consideration, 00. to pay another's debt, when original, when collateral, 137, 138. in negotiable paper, must be absolute, 160. PROMISE, barred under statute of liml ations, 203. new, sufficient to take case from statute of limitations, 204. new, not implied from mere acknowledg- ment, 2C5. implied by part payment, 265, 200. can never be enforced by one who knew the performance thereof impossible, 94. cannot be enforced when supported only by a valueless consideration, though it was at first apparently good, 95. when scverable, what maj or may not be enforced, 95. for work to be done, when broken without good cause by promisor, he cannot re- cover, 05. PROMISOR, of promissory note, 158. PROMISSORY NOTE, differs from bill of ex- change, 158. is what, 158. not negotiable when, 159. on demand is considered as intended as a continuing security, 172. PROPERTY, legal meaning of word, 110. of partnership is bound to pay partnership debts, 227. insured, description of, 378, 379. insured must contribute to general average when, 3U5. claim for contribution acquired by owners of sacrificed, 390. under insurance, effect of alterations on, 405,400. PROPOSALS, of insurance, 3 $10 1 . 2 3 . , . . . 1 4 , . . 1 . 1 . 1 5 . 1 . 1 . 1 . 1 . 1 1 6 . 1 . 1 . 1 . 1 . 1 / 1 7 . 1 . 1 . 1 . 1 . 1 1 . 1 8 . 1 . 1 . 1 . 1 . 1 1 . 1 9 . 1 . 1 . 1 . 1 . 2 1 . 1 10 . 1 . 1 . 1 . 2 . 2 1 . 1 . 1 11 . 1 . 1 . 1 . 2 . 2 1 . 1 . 1 12 . 1 . 1 . 2 . 2 . 2 1 . 1 . 1 13 . 1 . 2 . 2 . 2 . 2 1 . 1 . 1 14 . 1 . 2 . 2 . 2 . 3 1 . 1 . 1 . 1 15 . 2 . 2 . 2 . 2 . 3 1 . 1 . 1 . 1 16 . 2 . 2 . 2 . 2 . 3 1 . 1 . 1 . 1 17 . 2 . 2 . 2 . 3 . 3 1 . 1 . 1 . 2 18 . 2 . 2 . 2 . 3 . 3 1 . 1 . 1 . 2 19 . 2 . 2 . 3 . 3 . 3 1 . 1 . 1 . 2 20 . 2 . 2 . 3 . 3 . 3 1 . 1 . 1 . 2 21 . 2 . 2 . 3 . 3 . 4 1 . 1 . 1 . 2 22 . 2 . 3 . 3 . 3 . 4 1 . 1 . 2 . 2 23 . 2 . 3 . 3 . 3 . 4 1 . 1 . 2 . 2 24 . 2 . 3 . 3 . 4 . 4 1 . 1 2 . 2 25 . 3 . 3 . 3 . 4 . 4 1 . 1 . 2 . 2 26 . 3 . 3 . 3 . 4 . 4 1 . 1 . 2 . 2 27 . 3 . 3 . 4 . 4 . 5 1 . 1 . 2 . 2 28 . 3 . 3 . 4 . 4 . 5 1 . 1 . 2 2 29 . 3 . 3 . 4 . 4 . 5 1 . 1 . 2 . 2 . 3 30 . 3 . 4 . 4 . 5 . 5 1 . 1 . 2 . 2 . 3 33 . 3 . 4 . 4 . 5 . 6 1 . 1 . 2 , 2 . 3 34 . 3 . 4 . 5 . 5 . 6 1 . 2 . 3 . 4 . 5 60 . 6 . 7 . 8 . 9 . 10 1 . 2 . 3 . 4 . 5 63 . 6 . 7 . 8 . 9 . 11 1 . 2 . 3 . 4 . 5 .64 . 6 . 7 . 9 . 10 . 11 2 . 3 . 5 . 6 . 8 90 . 9 . 11 . 12 . 14 . 15 2 . 3 . 5 . 6 . 8 93 . 9 . 11 . 12 . 14 . 16 2 . 3 . 5 . 6 . 8 94 . 9. . 11 . 13 . 14 . 16 Monti*. 2 . 4 . 6 . 8 . 10 4 . 12 . 14 . 16 . 18 . 20 3 . 5 . 8 . 10 . 13 5 . 15 . 18 . 20 . 23 . 25 3 . 6 . 9 . 12 . 15 6 . 18 . 21 . 24 . 27 . SO 4 . 7 . 11 . 14 . 18 7 . 21 . 25 . 28 . 32 . 35 4 . 8 . 12 . 16 . 20 8 . 24 . 28 . 32 . 36 . 40 5 . 9 . 14 . 18 . 23 9 . 27 . 32 . 36 . 41 . 45 5 . 10 . 15 . 20 . 25 10 . 30 . 35 . 40 . 45 . 50 6 . 11 . 17 .22 . 28 11 . 33 . 39 . 44 . 50 . 55 6 . 12 . 18 . 24 . 30 12 . 36 . 42 . 48 . 54 . 60 12 . 24 . 36 . 48 . 60 24 . 72 . 84 . 96 1.03 1.20 18 . 36 . 54 . 72 . 90 36 1.08 1.26 1.44 1.62 1.80 24 . 48 . 72 .96 1.20 48 1.44 1.63 1.92 2.16 240 TABLES OF INTEREST AT SIX PER CENT. $20 $30 $40 $O $c>o Dfll/S. $70 $8O $9O $1OO $200 1 . 1 . 1 . 1 1 , 1 . 1 . 2 . 2 . 3 1 . 1 . 1 . 2 . 2 2 . 2 . 3 . 3 . 3 . 7 1 . 2 . 2 . 3 . 3 3 . 4 . 4 . 5 . 5 . 10 1 . 2 . 3 . 3 . 4 4 . 5 . 5 . 6 . 7 . 13 2 . 3 . 3 . 4 . 5 5 . 6 . 7 . 8 . 8 . 17 2 . 3 . 4 . 5 . 6 6 . 7 . 8 . 9 . 10 . 20 2 . 4 . 5 . 6 . 7 7 . 8 . 9 . 11 . 12 . 23 3 . 4 . 5 . 7 . 8 8 . 9 . 11 . 12 . 13 . 27 3 . 5 . 6 . 8 . 9 9 . 11 . 12 . 14 . 15 . 30 3 . 5 . 7 . 8 . 10 10 . 12 . 13 . 15 . 17 . 33 4 . 6 . 7 . 9 . 11 11 . 13 . 15 . 17 . 18 . 37 4 . 6 . 8 . 10 . 12 12 . 14 . 16 . 18 . 20 . 40 4 . 7 . 9 . 11 . 13 13 . 15 . 17 . 20 . 22 . 43 5 . 7 . 9 . 12 . 14 14 . 16 . 19 . 21 . 23 . 47 5 . 8 . 10 . 13 . 15 15 . 18 . 20 . 23 . 25 . 50 5 . 8 . 11 . 13 . 16 16 . 19 . 21 . 24 . 27 . 53 6 . 9 . 11 . 14 . 17 17 . 20 . 23 . 26 . 28 . 57 6 . 9 . 12 . 15 . 18 18 . 21 . 24 . 27 . 30 . 60 6 . 10 . 13 . 16 . 19 19 . 22 . 25 . 29 . 32 . 63 7 . 10 . 13 . 17 . 20 20 . 23 . 27 . 30 . 33 . G7 7 . 11 . 14 . 18 . 21 21 . 25 . 28 . 32 . 35 . 70 7 . 11 . 15 . 18 . 22 22 . 26 . 29 . 33 . 37 . 73 8 . 12 . 15 . 19 . 23 23 . 27 . 31 . 35 . 38 . 77 8 . 12 . 16 . 20 . 24 24 . 28 . 32 . 36 . 40 . 80 8 . 13 . 17 . 21 .25 25 . 29 . 33 . 38 . 42 . 83 9 . 13 . 17 . 22 . 26 26 . 30 . 35 . 39 . 43 . 87 9 . 14 . 18 . 23 < 27 27 . 32 . 36 . 41 . 45 . 90 9 . 14 . 19 . 23 . 28 28 . 33 . 37 . 42 . 47 . 93 10 . 15 . 19 . 24 . 29 29 . 34 . 39 . 44 . 48 . 97 10 . 15 . 20 . 25 . 30 30 . 35 . 40 . 45 . 50 1.00 11 . 17 . 22 . 28 . 33 33 . 39 . 44 . 50 . 55 1.10 11 . 17 . 23 . 28 . 34 34 . 40 . 45 . 51 . 57 1.13 20 . 30 . 40 . 50 . 60 60 . 70 . 80 . 90 1.00 2.00 21 . 32 . 42 . 53 . 63 63 . 74 . 84 . 95 1.05 2.10 21 . 32 . 43 . 53 . 64 64 . 75 . 85 . 96 1.07 2.13 30 . 45 . 60 . 75 . 90 90 1.05 1.20 1.35 1.50 3.00 31 . 47 . 62 . 78 . 93 93 1.09 1.24 1.40 1.55 3.10 31 . 47 . 63 . 78 . 94 94 1.10 1.25 1.41 1.57 3.13 Months. 40 . GO . 80 1.00 1.20 4 1.40 1.60 1.80 2.00 4.00 50 . 75 1.00 1.25 1.50 5 1.75 2.00 2.25 2.50 5.00 60 . 90 1.20 1.50 1.80 6 2.10 2.40 2.70 3.00 6.00 70 1.05 1.40 1.75 2.10 7 2.45 2.80 3.15 3.50 7.00 80 1.20 1.60 2.00 2.40 8 2.80 3.20 3.60 4.00 8.00 90 1.35 1.80 2.25 2.70 9 3.15 3.60 4.05 4.50 9.00 1.00 1.50 2.00 2.50 3.00 10 3.50 4.00 4.50 5.00 10.00 1.10 1.G5 2.20 2.75 3.30 11 3.85 4.40 4.95 5.50 11.00 1.20 1.80 2 40 3.00 3.60 12 4.20 4.80 5.40 6.00 12.00 2.40 3.GO 4.80 6.00 7.20 24 8.40 9.GO 10.80 12.00 24.00 3.GO 5.40 7.20 9.00 10.80 36 12.60 14.40 16.20 18.00 36.00 4.80 7.20 9.60 12.00 14.40 48 16.80 19.20 21.60 24.00 43.00 TABLES OF INTEREST AT SIX PEK CENT. $3OO $4OO $5OO $60O Days. $7OO $8OO $9OO $1OOO 5 . 7 . 8 . 10 1 . 12 . 13 . 15 . 17 10 . 13 . 17 . 20 2 . 23 . 27 . 30 . 33 15 . 20 . 25 . 30 3 . 35 . 40 . 45 . 50 20 . 27 . 33 . 40 4 . 47 . 53 . 60 . G7 25 . 33 . 42 . 50 5 . 58 . 67 . 75 . 83 30 . 40 . 50 . 60 6 . 70 . 80 . 90 1.00 35 . 47 . 58 . 70 7 . 82 . 93 1.05 1.17 40 . 53 . 67 . 80 8 . 93 1.07 1.20 1.33 45 . 60 . 75 . 90 9 1.05 1.20 1.35 1.50 50 . 67 . 83 1.00 10 1.17 1.33 1.50 1.67 55 . 73 . 92 1.10 11 1.28 1.47 1.65 1.83 60 . 80 1.00 1.20 12 1.40 1.60 1.80 2.00 65 . 87 1.08 1.30 13 1.52 1.73 1.95 2.17 70 . 93 1.17 1.40 14 1.63 1.87 2.10 2.33 75 1.00 1.25 1.50 15 1.75 2.00 2.25 2.50 80 1.07 1.33 1.60 16 1.87 2.13 2.40 2.67 85 1.13 1.42 1.70 17 1.98 2.27 2.55 2.83 ' 90 1.20 1.50 1.80 18 2.10 2.40 2.70 3.00 95 1.27 1.58 1.90 19 2.22 2.53 2.85 3.17 1.00 1.33 1.67 2.00 20 2.33 2.67 3.00 3.33 1.05 1.40 1.75 2.10 21 2.45 2.80 3.15 3.50 1.10 1.47 1.83 2.20 22 2.57 2.93 3.30 3.67 1.15 1.53 1.92 2.30 23 2.68 3.07 3.45 3.83 1.20 1.60 2.00 2.40 24 2.80 3.20 3.60 4.00 1.25 1.67 2.08 2.50 25 2.92 3.33 3.75 4.17 1.30 1.73 2.17 2.60 26 3.03 3.47 3.90 4.33 1.35 1.80 2.25 2.70 27 3.15 3.60 4.05 4.50 1.40 1.87 2.33 2.80 28 3.27 3.73 4.20 4.67 1.45 1.93 2.42 2.90 29 3.38 3.87 4.35 4.83 1.50 2.00 2.50 3.00 30 3.50 4.00 4.50 5.00 1.65 2 20 2.75 3.30 33 3.85 4.40 4.95 5.50 1.70 2.27 2.83 3.40 34 3.97 4.53 5.10 5.G7 3.00 4.00 5.00 6.00 60 7.00 8.00 9.00 10.00 3.15 4.20 5.25 6.30 63 7.35 8.40 9.45 10.50 3.20 4.27 5.33 6.40 64 7.47 8.53 9 60 10.67 4.50 6.00 7.50 9.00 90 10.50 12.00 13.50 15.00 4.65 6.20 7.75 9.30 93 10.85 12.40 13.95 15.50 4.70 627 7.83 9.40 94 10.97 12.53 14.10 15.67 Months. 6.00 8.00 10.00 12.00 4 14.00 16.00 18.00 20.00 7.50 10.00 12.50 15.00 5 17.50 20.00 22.50 25.00 9.00 12.00 15.00 18.00 6 21.00 24.00 27.00 30.00 10.50 14.00 17.50 21.00 7 24.50 28.00 31.50 35.00 12.00 16.00 20.00 24 00 8 28.00 32.00 36.00 40.00 13.50 18.00 22.50 27.00 9 31.50 36.00 40.50 45.00 15.00 20.00 25.00 30.00 10 35.00 40.00 45.00 50.00 16.50 22.00 27.50 33.00 11 38.50 44.00 49.50 55.00 18.00 24.00 30.00 36.00 12 42.00 48.00 54.00 60.00 36.00 48.00 60.00 72.00 24 84.00 96.00 108.00 120.00 54.00 72.00 90.00 108.00 36 126.00 144.00 162.00 180.00 72.00 96.00 120.00 144.00 48 168.00 192.00 216.00 240.00 TABLES OF INTEREST AT SEVEN PER CENT. DOLL'S. 1 2 3 4 5 G 7 S 9 10 11 It, 13 14 A. 1 15 H 17 Ib 19 20 21 22 23 24 2526 ! 27 2829 1.. (J ( f ( 1 1 1 1 2 ... ( (I ( 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 3.... 4.... 5.... ooo ooo ooo 000 1 1 (J 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 2 1 a 1 2 2 1 2 2 1 2 2 1 2 2 1 - [ 1 2 2 2 8 2 2 a 2 2 2 2 3 :, 6.... 7.... 8.... 9 oooc oooc 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 2 C tOt-"!-" 2 B 2 2 2 o 2 2 2 i \ 2 2 2 2 3 ;j (WOO COO 2 3 3 2 8 3 3 8 3 a 3 : : ii 3 3 4 a 4 8 8 4 4 6K 10.... 11.... 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 2 2 2 3 3 a a 3 3 3 a 3 a 4 4 t 4 4 4 B 5 5 5 5 5 G 5 G > 5 C G ( 12.... 1 ] 1 1 1 2 2 2 2 3 3 a 3 4 4 4 4 4 B B 5 B G G G G 7 7 13.... 1 1 1 1 2 2 2 2 3 3 8 8 4 4 4 4 5 5 5 5 G 6 ( C, 7 7 7 7 14.... 1 1 1 1 2 2 2 2 3 3 3 4 4 4 4 5 5 B B C G G 7 7 7 7 8 8 15.... 1 1 1 1 2 2 2 3 3 3 4 4 4 4 5 5 6 a G a G 7 7 7 8 s 8 8 16.... 1 1 1 2 2 2 2 8 3 3 4 4 4 5 5 5 G <; A 7 7 7 7 8 8 8 9 9 17.... 1 1 1 2 2 2 8 ;; 3 4 4 4 5 5 5 G 6 c, 7 7 7 s 8 8 9 910 18.... 1 1 1 2 2 2 3 3 4 4 4 5 5 B G C> G 7 7 7 B B 8 9 9 9 1010 19.... 1 1 1 2 2 3 8 3 4 4 4 5 5 G G G 7 7 7 8 8 8 9 9 10 10 1011 20.... 1 1 2 2 2 3 8 4 4 4 B S B G G 7 7 7 8 8 9 9 9 10 10 11 1111 21.... 1 1 2 2 2 8 3 4 4 4 5 5 G 6 7 7 7 8 S 9 9 9 10 10 11 11 1112 22.... 1 1 2 2 3 3 3 4 4 5 B G G G 7 7 8 B 9 9 9 10 10 11 11 12 1212 25.... 1 1 1 2 2 3 3 4 4 5 5 (i G 7 7 8 8 9 9 10 10 11 11 12 12 i:5 13 1414 30.... 1 1 2 2 3 4 4 5 5 6 G 7 8 8 9 9 10 11 11 12 12 13 13 14 15 15 Hi 1617 40.... 1 2 2 3 4 5 5 G 7 8 9 9 10 11 12 12 13 14 15 16 Hi 17 18 11 19 20 .'1 22 23 50.... 1 2 3 4 5 G 7 8 9 10 11 12 13 14 15 1 17 is is 19 20 21 22 23 24 25 2< i 60.... 1 2 4 5 6 7 8 9 11 12 L3 14 15 Hi is 11 20 21 22 .'3 25 -V. 27 '.-- 21 1 30 32 33 34 70.... 1 ;; 4 5 7 8 10 11 12 14 L5ll6 18 10 "JO 22 23 25 2G 27 29 "(1 31 3: 34 35 3tl 3839 80.... 2 3 5 G 8 9 11 12 14 1G L7J19 20 22 23 25 2G 2s 30 11 33 34 31/37 39 40 42 4445 90.... 2 4 5 7 9 11 12 14 1G 18 '.).'] 23 25'2G 28 30 32 33 55 37 39 40 42 14 4G 47 41' 51 100.... 2 4 G 8 10 12 14:16 18 19 3123 25 27 29 31 33 35 37 !9 41 ,43 45 4749 51 53 54 5! DOLL'S. 1 2 3 4 5 6 7 8 9 | 10 11 1.... 1 1 2 2 3 4 4 5 5 6 6 2.... 1 2 4 5 6 7 8 9 11 12 13 3.... 2 4 5 7 9 11 12 14 15 18 19 4.... 2 5 7 9 12 14 16 19 21 23 26 5.... 3 6 9 12 15 18 20 23 26 29 32 6.... 4 7 11 14 18 21 25 28 82 85 89 7.... 4 8 12 16 20 25 29 83 86 41 44 8.... 5 9 14 19 23 28 33 37 42 47 51 9.... 5 11 16 21 26 32 37 42 47 53 57 10.... 6 12 18 23 29 85 41 47 53 58 64 11.... 6 13 19 26 32 39 45 51 57 64 70 12.... 7 14 21 28 85 42 49 56 63 70 77 13.... 8 15 23 30 38 46 53 61 68 76 83 14.... 8 16 25 33 41 49 57 65 74 82 90 15.... 9 18 26 85 44 53 61 70 78 88 96 16.... 9 19 28 87 47 56 65 75 84 93 103 17.... 10 20 80 40 50 (50 69 79 89 99 109 18.... 11 21 32 42 53 63 74 84 95 105 1 Hi 19.... 11 22 83 44 55 67 78 89 99 111 1 21 20.... 12 23 85 47 58 70 S2 93 105 117 i U 21.... 12 25 87 49 61 74 86 98 110 123 i M 22 13 26 89 51 64 77 90 103 1 1G 128 1 41 as!!! 15 29 44 58 73 88 102 117 131 1 4G 1GO 30.... 18 85 53 70 88 105 123 140 158 1 75 1 93 40.... 23 47 70 93 117 140 168 187 210 283 2 57 50.... 29 58 88 117 146 175 201 283 321 CO... 85 70 105 140 175 210 2 45 280 315 850 885 70.... 41 n 123 103 204 2 45 2 SG 327 368 4 OS 449 80... 47 93 140 187 233 280 373 420 467 513 90.... 53 105 158 210 2 (53 815 368 420 4 72 577 100.... 58 117 175 238 292 350 408 467 525 583 643 AN ILLUSTRATED COMPRISING ITS ANTIQUITIES, BIOGRAPHY. GEOGRAPHY, AND NATURAL HISTORY, WITH NUMEROUS ILLUSTRATIONS AND MAPS, ALL ENGRAVED EXPRESS- LT FOR THIS WORK. EDITED BY WILLIAM SMITH, LL. D. CLASSICAL EXAMIXBR OT THE CSIVERSITY Or LONDOX This work is universally admitted, by all who are competent to form an enlightened opinion, to be the best Book of its kind in the English language, and to have no rival in importance for the elucida- tion of the scenes and facts of Scripture, and is so full, accurate and comprehensive, as to leave little to be desired in the department of which it treats. "With the multiplication of Commentaries, and Treatises, and Dis- coveries illustrative of the Bible, in modern times, there has been an unsupplied and increasing demand for a work which should embrace the fruits of the ripest and best Biblical Scholarship. This has been done for the first time, in the present work, which is now offered to the million of Bible readers and students of our land. The present work embraces the results of the most successful and approved Biblical labors and researches of scholars and travelers, in- cluding the latest of Layard, Eawlinson, and others, condensed for wide and common use, and constituting an indispensable aid to Teach- ers, Families, Sunday School Superintendents, and Bible Students, and Bible Readers generally. It contains every name in the Bible and Apocrypha of which any thing can be said. It gives an accurate account of every place and every name in the Scriptures of which explanation or illustration is required. It describes every animal, bird, and insect and reptile, every (2) plant and every mineral, every implement and domestic utensil men- tioned or alluded to in the Bible. It gives an account of the manners and customs, costumes, habitations, laws, civil and ecclesiastical an- tiquities of the Jews and surrounding nations. It also embraces ge- ographical descriptions of the Holy Land and other countries, according to the most recent and accurate surveys; and includes a history and analysis of each of the Books of the Bible ; biographical sketches of the Writers and of all other Scripture Characters ; while very many of the longer articles, being the results of the most finished scholar- ship, are complete treatises in themselves, and worthy of a separate publication. A reference to the list of Contributors, whose labors are herein em- bodied, combining an unexampled array of the most eminent Scholars in America and Great Britain, is sufficient proof of the thoroughness and completeness of its articles. All Dictionaries of the Bible, prepared before the recent great and important advances made in Biblical Science, and the numerous illustra- tions of the Sacred Volume brought to light by travelers and scholars in Bible lands, are necessarily incomplete and imperfect, and are many of them rendered comparatively useless. This work is indispensable to every Clergyman, and necessary to every Christian family. All who use a Family Bible should possess this most valuable Dictionary. The sale of no two Books ever published will furnish so pkasant, v!se- ful and profitable employment, to those possessing intelligence, energy and perseverance, as "The Devotional and Practical Family Bible" and " The Bible Dictionary." The Agent will find he can easily secure an order for the " Bible Dictionary " from those who already possess a Bible, and he will find the two are admirably adapted to go together. Canvassing for the "Bible" and "Bible Dictionary" is compara- tively a pleasant and satisfactory business. Address the Publishers. THE DEVOTIONAL AND PRACTICAL POLYGLOT! FAMILY BIBLE, CONTAINING THI OLD AND NEW TESTAMENTS, WITH THE MARGINAL READINGS, AND A FULL AND ORIGINAL SELECTION OF REFERENCES TO PARALLEL AND ILLUSTRATIVE PASSAGES, ARRANGED IN A MANNER HITHERTO UNATTEMPTED. Together with a Concordance : A Careful Index to the Bible, in which every Difficult Word is explained. ALSO, A FAMILY RECORD, MANY USEFUL TABLES AND VALUABLE TREATISES, DESIGNED TO PRO- MOTE AND FACILITATE THE DEVOTIONAL STUDY OF THE HOLY BCRIPTUKES. IT is the belief of the Publishers that the Devotional and Practical Family Bible embraces more valuable and practical helps to general readers and students of the Scriptures than any single volume yet issued from the press. Superintendents, Teachers, and Scholars in Sun- day Schools, will find this work a most convenient and satisfactory aid to an intelligent and critical study of the Scriptures. The text is accompanied by the most complete and simple system of references to marginal readings and parallel passages yet adopted. The numerous tables, treatises and explanatory writings which accom- pany it, and of which a list is found in the general contents, embody the results of the life-long labors of many eminent biblical students, and furnish almost an Encyclopedia of biblical knowledge. The work is, moreover, very highly approved, and recommended by influential divines and pastors of churches, and is greatly prized by all who possess it. It embraces I. The Preface. II. Order of the Books of the Old and New Testaments. III. A Critical Introduction to the Study of the Holy Scriptures, with General Observations on the Authority and History of the Books of the Pentateuch ; by Rev. Joseph A. Warne. IV. Treatises on the Correct Interpretation of the Writings in which the Revelations of God are contained ; by James M'Knight, D. D. Y. Table showing at one view which of the Patriarchs were cotemporary with each other, and consequently how easy it was to hand down from Adam to Isaac (a period of 2,158 years) the particu- lars of the Creation and Fall of Man. VI. A Chronological Harmony of the Scripture Histories, and of the Fulfillment of its Predictions. VII. Tables of the Measures, Weights, Moneys, and Times, men- tioned in Scripture, with an Appendix to the second table of Measures of Surface described by Moses. VIII. The contents of the Old and New Testaments arranged in a manner by which the Books, Chapters, &c., may be read as one con- nected History. IX. Chronological Tables of the Offices and Conditions of Men ; Chronological Tables of the New Testament; of St. Paul's Apostolic Journeys ; of the Evangelists, and exhibiting the Chronology of our Saviour's Life ; of the Important Events of Profane History during the Life of Christ, and the Chronological Order of the Discourses, Parables, and Miracles of Christ. X. Illustrations of Scripture with numerous Steel Engravings. XI. The Books of the Old Testament. XII. History of the Period included from the close of the Canon of the Old Testament, until the times of the New Testament. XIII. Four Discourses on the Evidences of Christianity, and the Genuineness of the New Testament ; by Philip Doddridge, D. D. XIY. An Introduction to the Study of the New Testament, ( with a History of the several Books. XV. The Books of the New Testament. XVI. A new Geographical and Historical Table, exhibiting at one view all that is interesting in the Geography and History in the Holy Scriptures, and forming a complete Bible Gazetteer.' XVII. A new and complete General Index of the Bible, in which the various Places, Persons, and Subjects mentioned in it are accurately referred to, and every difficult word briefly explained. XVIII. A Concordance of the Holy Scriptures of the Old and New Testaments, by which all of the principal texts of the Scrip- tures may be easily found out ; by Rev. John Brown. XIX. Table of Select Passages, arranged with a view to the De- votional Heading of the Bible, morning and evening, every day in the year. It will be readily seen, that no single edition of the Holy Scriptures has ever been given to the public accompanied by so many and such valuable aids to their practical and profitable reading and study as this. To Sabbath School Superintendents, Teachers and Scholars, this with the accompanying volume, is almost indispensable, and furnishes, in a convenient and practical form, nearly every requisite aid in their pursuits upon every subject and question which can arise. This work has been very highly commended by influential Divines and Pastors of Churches, and should be found in every household in the land ; while to aid in its sale will be both a useful and profitable work. Agents write that this work is highly satisfactory and sells readily. Descriptive Circulars will be forwarded to those desiring an agency. Address the Publishers. ZEIDITIOICsr. THE LIFE AND EPISTLES OF EMBRACING A Graphic and Eloquent Delineation of the Early Life, Education, Conversion, Teach- ings, Labors, Travels, Sufferings, Perils, Persecutions, and Missionary Career of St. Paul, thus constituting a Living Picture of the Great Apostle himselfj and of the circumstances by which he was surrounded. BT Rev. W. J. CONYBEARE, M. A., LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE, AND JRev, J. S. HOWSON, D. D. PRINCIPAL OF THE COLLEGIATE INSTITUTION, LIVERPOOL, With a Preliminary Dissertation by Rev. LEONARD BACON, D. D., PBOFESSOB OF EEVEALED THEOLOGY IN YALE COLLEGE. This work delineates the early life, education, conversion, teachings and labors of a man, whose writings are now engaging more thought, calling forth more learned discussion, and more powerfully impressing the mind and heart of the age, than those of any other author, ancient or modern, inspired or uninspired. Jesus said of Paul, " He is a chosen vessel unto me," and the Scripture biography before us shows the won- derful care which God took in preparing that vessel before He filled it with his grace and set it apart for the Master's special use in His great house. Grand intellectual powers, united with a pure and loving heart, and a life filled with strange, heroic, and self-sacrificing adventures, made St. Paul the most wonderful man of all the ages. No better sub ject could be found for a biography, nor any better men selected to pre- pare it. The work faithfully portrays, in a very fresh and life-like manner, the character and doings of one of earth's noblest heroes. This work contributes more to the correct understanding of St Paul's Epistles, and to a thorough apprehension of his unparalleled character of the communities upon which he labored, of the countries through which he traveled, of the chief characters whom he met, both friend and foe, of his personal hopes and fears, of his temporary failures (6) and permanent triumphs, than any other one volume. The scenes of his early youth ; the character of the school in which he was educated ; the habits of private life then prevalent; the principles which actuated him, and developed that intellectual character, and made him the fore- most reasoner of the world, are all represented in a style which lends a charm to the work, at once pleasing and instructive, and makes it truly a " People's Edition." It embodies more information concerning ancient and Eastern life ; carries the reader more agreeably and irresis- tably into the times and scenes of Paul's life ; and illustrates better that large part of the New Testament which he wrote than any other book in biblical literature. It brings more learning, and the results of more biblical, geographical, and ethnological research than any other work, to bear in making interesting the life, and elucidating the writings of him who was, not only the great Apostle to the Gentiles, but also the great Theologian of the whole Bible, whose name is second to no other human name in the history of the Church of God. It throws a flood of light on the character, travels, missionary labors and writings of the great Apostle, and throws open that wonderful period of the world's history as no other work has ever done. The reader is borne along by its clear and charming style, its picturesque and vivid descrip- tions of scenery, and its beautiful delineations of Apostolic characters and labors, and at every point is delighted and instructed. It is as fas- cinating as any story can be, and yet it is true to life and Bible History. The prodigious learning and power, and beauty of style, do not consti- tute its highest praise. This is found in its moral and religious spirit, in its pre-eminent Christian candor and impartiality, in its solemn ear- nestness for historic truth, and its manly and unvascillating faith in the doctrines proclaimed by the fearless subject of its biography. It is every way a masterly and unrivalled work, and so wholly worthy its subject in all the manner of its performance, that it is not saying too much to pronounce it a fitting tribute to the greatness of the Great Apostle. The preliminary dissertation by Dr. Bacon, gives it additional value, and helps further to understand the character of the great Apostle, and the scenes of the early triumphs of the Gospel. His abilities, studies and travel, eminently fit him for the service he thus renders. Send for our 16 page descriptive circular, giving full particulars, terms, and testimonials. Address the Publishers LAWS OF BUSINESS WITH Forms and Directions for all Transactions 5 CONTAINING CHAPTERS ON Commercial Law in General, on Infants or Minors, Married Women and their Rights. Sales, Guaranty, Payment Notes and Bills of Exchange, Agency, Partnership, Arbitration, Carriage of Goods and Passengers by Railroads and other Carriers, Patents, Copyrights, Statute of Limitations, In- terest and Usury, Bankruptcy, Shipping, Marine, Fire and Life Insurance, Deeds of Land, Mortgages of Land, Mortgages of Personal Property, Leases, Liens of Mechanics and Material Men, Pensions for Soldiers and Sailors, the Recovery of Debts, Wills, Executors and Administrators, Guardians, the Stamp Act, and other topics. By THEOPHILUS PARSONS, LL. D., Professor of Law in Harvard University, Cambridge, and Author of Treatises on the Law of Con- tracts, on Mercantile Law, on the Law of Partnership, on the Laws of Promissory Notes and BUls of Exchange, on the Law of Insurance, and on tlie Law of Shipping and Admiralty. The growing intelligence and mental activity of the American people, has, created a demand, almost universal, for correct information concerning their so- cial, civil, and business relations. Books heretofore published for this end have, generally, been characterized by incompetent authorship, fatal errors and omissions. But the " LAWS OP BUSI- NESS," by Professor Parsons, embodying the results of continuous labor for many] years in the study, practice, and teaching of the law, and the preparation of Law* Books, fully meets this demand, and, as a reliable and correct authority, will never be superseded. Of its completeness and excellence, the name of the distin- guished author is a sufficient guaranty. It embodies and presents in the clearest, plainest, and most precise manner, all those rules and principles which regulate social intercourse, and govern every kind of business, with full directions for every transaction. It explains the nature of every kind of contract, conveyance, and legal obli- gation. It givc3 directions to Magistrates, to Administrators and Executors, to Land- lords and Tenants, to Guardians and Wards, to Buyers and Sellers, Agents and Principals, Debtors and Creditors, to Trustees, Common Carriers, to Insolvents, to Insurers and Underwriters, to Inventors, Authors, Partners, Clerks, Corpora- tions, and Shareholders, and all who have any business to transact. It shows how to draw and perfect a Deed, to make an Agreement, an Assign- ment, a Lease, a Guaranty, a Note, a Check, an Order, a Due Bill, a "Will, a Codi- cil, a Bill of Exchange, a Protest, an Indorsement, a Bill of Bale, an Indenture, a Mortgage, a Warranty, a Petition, an Affidavit, a Release, a Power of Attorney, Patent Forms, and every kind of Legal Instrument. The FORMS have been prepared from an extensive collection made by the author from those most approved in all parts of the country, and which have been tested in courts of law ; and are so numerous as to meet almost every case that can arise. IS ESSENTIAL IT Every Farmer, Every Manufacturer, Every Contractor, Every Landlord, Every Executor, Every Guardian, Every Heir-at-Law, Every Apprentice, Every Partner, Every Auctioneer, Every Mechanic, Every Public Officer, Every Agent, Every Tenant, Every Administrator, Every Minor, Every Legatee, Every Mariner, Every Clerk, Every Broker, Every Notary, Every Justice of Peace, Every Constable, Every Sheriff, Every Assessor, Every Grand Juror, Every Married Woman, TO Every Trader, Every Employer, Every Citizen, Every Bank Officer, Every Consignor, Every Collector, Every Deputy Sheriff, Every Commissioner, Every Treasurer, Every Widow, Every Market-Man, Every Employee, Every Property Holder. In short, as a Compendium and Iland-Book, it is indispensable to all who desire to know their rights and duties, or to possess the means of transacting, unaided, and with correctness and safety, their own legal business. It is for everybody, the safest and cheapest Counsellor and Legal Adviser, ready at hand at all times to be consulted, often superseding delays and costly consultations, and essentially enabling every man to be his own ready lawyer. iSl?" The very many highly complimentary notices that this great work has received from eminent Lawyers, Jurists, and the Press, throughout the country, are sufficient to show the high esteem in which it is universally held by those most competent to judge of its merits. Send for Circulars, Terms, and Testimonials. Address the Publishers. The Oldest and the Newest Empire: CHINA UNITED STATES. Embracing a Geographical and Historical Description of the Empire of China and its Inhabitant*; a View of Chinese Immigration to the United States, and its Influence upon our National Interests and Public and Domestic Institutions. BY WILLIAM SPEER, D.D.,- Corresponding Secretary of the Presbyterian Board of Education ; formerly Missionary in China, and to the Chinese in California. THE recent remarkable events growing out of a change in the international policy of the government of China, and the constant emigration from that country to the United States, have created a universal demand for clear and authentic information regarding that remarkable people, and their relation to us. To meet this demand, no writer in America or abroad is better qualified than the author of the present volume. Having spent several years in China, Dr. SPEER afterwards, in 1852, estab- lished the first Christian Mission, and carried on many philanthropic labors for the benefit of the Chinese in this country, and M'as widely known on the Pacific coast as the " friend of the Chinese." He thereby became thoroughly acquainted with their language, literature and institutions, and especially with their char- acter and capacities as immigrants, and with the questions and problems which arise in connection with their residence here. The Oldest and the Newest Empire embodies the results of the author's study and observations during many years, and consequently abounds in the kind of information which every one requires. It graphically describes the geography and natural productions of China. It gives a view of the history, literature, arts and sciences, and manners and cus- toms of the inhabitants, and explains the origin, causes, and progress of the recent changes in the foreign and domestic policy of this remarkable race. The work is most timely in throwing light upon the important subject of Chinese labor in America ; exhibiting its adaptation to our wants, the capacity of the Chinese as laborers, domestic servants, factory operatives, miners and agriculturists, and their importance as a means of increasing the working power of the country, and of introducing products and manufactures unknown to our industry, and developing the almost unlimited wealth of our unoccupied ter- ritory. It is full of practical information upon the great political questions already rising to view, which grow out of their rights and obligations under our insti- tutions, and our reciprocal duties to them. The moral questions which result from the influence to be exerted by thia Pagan element upon our own population, and the facilities it will supply for the enlightenment and evangelizing of the most populous nation of the earth, are treated with great ability, and in a manner to command the attention and approbation of the Christian and the philanthropist. Circular*, giving terms and full particulars sent free on application to any one desiring an agency. ADDRESS THE PUBLISHERS. UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 921 782 9