UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 3UTH 
 DWAY 
 
 / 0<fl 
 
 / 
 
 >*£
 
 STUDIES 
 
 U* 
 
 AMERICAN 
 ELEMENTARY LAW 
 
 BY 
 
 JNO. C. TOWNES, LL. D. 
 
 Professor op Law, University of Texas 
 
 author of 
 
 "Towneb on Texas Pleading" 
 
 "Townes on Torts," etc. 
 
 SECOND EDITION 
 
 CHICAGO 
 T. H. FLOOD & CO. 
 
 1921
 
 
 Copyright, 1903 
 
 BY 
 
 Jno. C. Townes 
 
 Copyright, 1911 
 
 BY 
 
 Jno. C. Townes 

 
 TO 
 
 HON. B. 8. GOULD 
 
 THE CHRISTIAN GENTLEMAN 
 
 THE GOOD CITIZEN 
 
 THE ABLE LAWYER, THE JUST JUDGE 
 
 AND THE FAITHFUL TEACHER 
 
 THIS BOOK IS AFFECTIONATELY INSCRIBED
 
 PREFACE TO THE FIRST EDITION. 
 
 For a number of years I have been considering the matter of 
 Elementary Law, trying to solve three problems concerning it: 
 
 First. "Whether there is any such thing. 
 
 Second. If so, what is it? 
 
 Third. If there is, and it can be identified, how can it be 
 taught? 
 
 On the first point, I am thoroughly convinced. I no longer 
 doubt that there is matter which may properly be called Elemen- 
 tary Law, and that it is not an ideality only, but is of the most in- 
 tense interest and of the highest practical value. Indeed, so in- 
 teresting and far-reaching is it, that, in my judgment, nothing else 
 in the study or practice of the law is to be compared to it. 
 
 On the second point, I have changed my mind materially since 
 I began to give the matter thoughtful consideration. 
 
 On this question there are three lines of thought. The first 
 does not regard Elementary Law as a subject or matter distinct 
 in itself, but simply as a method of presenting to the student the 
 ordinary rules of law in nontechnical language, a process of sim- 
 plifying each rule by changing the terms in which it is usually ex- 
 pressed, and thus, without systematizing or co-ordinating the 
 body of rules in any way, to make each more easy of apprehension 
 by the student. 
 
 An adequate book prepared on this conception would comprise 
 a complete enumeration of all the authoritative rules of conduct 
 prescribed in the government whose laws it sought to represent, 
 stated simply, but arbitrarily, without showing any relations be- 
 tween them, or any of the reasons on which they are based. 
 
 The second line of thought gives more recognition to the idea of 
 the separateness of Elementary Law, yet does not admit this 
 fully; and it also deals with it more as a method of presenting the 
 established rules of law than as a distinct substantive matter. 
 The method employed is a much more thoughtful and helpful one 
 than that in the first school.
 
 VI PREFACE TO FIRST EDITION. 
 
 This view, put into practice in the preparation of a book, results 
 in a scientific treatment of the whole body of established rules of 
 conduct, and an arrangement of its several parts with reference to 
 each other, and to the whole, thus presenting the co-ordination of 
 these rules. 
 
 This is extremely useful. Many of the books thus made are of 
 great merit, and should be in every law library. They are very 
 helpful to the advanced student of the law. There is, however, at 
 least one serious objection to them as text-books, to be used at the 
 beginning of the course ; they necessarily presuppose, and an in- 
 telligent appreciation of them requires, considerable knowledge of 
 the rules which they seek to co-ordinate, of which the beginner is 
 absolutely ignorant. "When placed at the first of the course, they 
 tend to mystify and discourage, rather than to enlighten and stim- 
 ulate. 
 
 The third line of thought deals with the foundation principles 
 of law as independent, substantive truths, susceptible of apprecia- 
 tion and expression, and which exist distinct from the rules of 
 conduct prescribed in any particular government; and regards 
 these latter rules, not as arbitrary commands emanating from the 
 caprice of power, but as earnest and approximately successful ef- 
 forts at the embodiment and expression of the fundamental prin- 
 ciples; impelling the law-making power in their establishment. 
 
 In this view, there exist absolute principles of right and wrong, 
 which are universal, eternal, immutable, and inexorable; which 
 constitute the standards by which all human conduct is ultimately 
 to be judged ; which principles, with the patience attainable only 
 by the absolute, are gradually, yet constantly, revealing them- 
 selves to men and incorporating themselves in human thought and 
 activity. This view looks upon the actual system of law, main- 
 tained at any time among any people as but an approximation to 
 that people's conception and appreciation of these absolute prin- 
 ciples. 
 
 From this point of view, Elementary Law — or, perhaps, more 
 accurately, Elemental Law — consists of these absolute principles, 
 and their influence upon, and manifestation in, the actual rules of 
 conduct prescribed by the particular government whose law is be- 
 ing studied. 
 
 I am fully persuaded of the correctness of the view last pre- 
 sented.
 
 PREFACE TO FIRST EDITION. Vll 
 
 As to the third query: How can Elementary Law be taught? 
 Since I believe in the existence of absolute principles, and that the 
 law of any people is but a tentative expression of that people's 
 common judgment and conscience, as to what is required in con- 
 duct by these absolute principles, I am forced to believe that the 
 effective and logical way to teach the law is to begin with these 
 basic ideas and as thoroughly as possible familiarize the student 
 with them, and then to advance him gradually in their orderly 
 and systematic manifestation in the formulated rules of law. I 
 think it is better to teach the reason for the rule, and follow this 
 with the rule resulting therefrom, than it is to teach the rule and 
 then go back to the reason from which it resulted. The last taxes 
 the memory to retain an unappreciated formula and dulls interest 
 and hinders intelligent reasoning by a sense of arbitrariness; 
 while the first takes the student through a process similar to that 
 by which the rule was originally evolved, and by showing the rea- 
 son and necessity for it stimulates his mind to suggest it, or at 
 least to grasp it with avidity when presented as a solution of con- 
 ditions which he already understands. 
 
 From this point of view, an adequate treatment of Elementary 
 Law involves an enumeration and accurate statement of these un- 
 derlying principles, and a systematic and exhaustive, though 
 gradual, demonstration of their influence and application in each 
 of the actual rules of conduct, which exist in the legal system un- 
 der investigation. 
 
 This is a task which, in its fullness, is beyond human attain- 
 ment. Its inherent difficulty, perhaps, explains the paucity of 
 acknowledged effort in this field of endeavor. All that can ever 
 be accomplished will be but an approximation. Under conditions 
 as they now exist, very remote approximation is all that can rea- 
 sonably be expected. 
 
 Holding these views, I have acted upon them to the extent of 
 my ability and have endeavored to exemplify them in the follow- 
 ing pages. I have striven earnestly, and have given much time 
 and thought to the matter contained in them. From circum- 
 stances beyond my control, the preparation of the text for publi- 
 cation has been unduly hurried. 
 
 The work has all been done by me, except a few quotations, duly 
 noted; the only extensive ones being from the decisions of the 
 Supreme Court of the United States, two of which constitute
 
 Vlll PREFACE TO FIRST EDITION. 
 
 Chapter III, Part Two ; and also except Chapter IX, Part Three, 
 on Contracts, which was written by Mr. B. "W. Townes, and is 
 
 published by his permission. 
 
 I have not, in a single particular, realized my ideal. I do not 
 think that I have failed in the purpose of the book. I do not claim 
 that I have succeeded. If it shall prove suggestive and stimulate 
 thought and effort in the proper study and teaching of the law, I 
 shall be content. Invoking the sympathy of those who have 
 striven, and are striving, for the unattainable, I submit the result 
 to the candid judgment of those who think. 
 
 Jno. C. Townes. 
 
 University of Texas, November 14, 1903.
 
 PREFACE TO THE SECOND EDITION 
 
 In the preface to the First Edition published in 1903 I set out 
 briefly my ideas as to Elementary Law and the proper method of 
 teaching it. These ideas were then largely experimental. The 
 book was prepared to enable me to test their soundness and prac- 
 ticability in my own classes. Hence no attempt was then made 
 to extend its use. 
 
 I have used the book in my classes each year since its publica- 
 tion. The aggregate membership of these classes is fully one thou- 
 sand pupils, most of them men of good ability, eager to acquire 
 legal information and legal habits of thought. I have carefully 
 noted the effort made by these students to master the subject and 
 the practical results of these efforts, taking observations both dur- 
 ing the study of this subject and of the later topics in the cur- 
 riculum. I am now thoroughly convinced of the practicability 
 and value of the study of Elementary Principles as the introduc- 
 tory topic in the study of the law. Complete mastery of the fun- 
 damentals of the law has been acquired by very few, if any, even 
 of the world 's greatest jurists ; but the student of average ability 
 and training can get such an acquaintance with these basic prin- 
 ciples in the beginning of his legal studies as to be exceedingly 
 helpful to him in his subsequent courses. This acquaintance gives 
 an approach to after work which we had sought in vain in other 
 methods of teaching. It enables the student to realize that the 
 law is a connected and co-ordinated system, not a semi-accidental 
 collection of arbitrary rules, and that the differing rules which he 
 finds in the respective topics are the outgrowth and manifestation 
 of the same unchanging principles applied to the differing matters 
 with which the several topics deal. 
 
 This training of the student in power of legal thought and judg- 
 ment, makes the work of both teacher and pupil in each succeed- 
 ing subject easier and more interesting, and by tracing these fun- 
 damentals through each topic, each later subject becomes essen- 
 tially a review of each of those which have preceded it. 
 
 ix
 
 X PEEFACE TO SECOND EDITION. 
 
 Being thus assured of the value of the subject and the prac- 
 ticability of the manner of presenting it, I have carefully revised 
 the whole book, enlarging some portions and cutting down others 
 so as to give better proportion and greater symmetry, and have re- 
 written almost the entire text. In fundamenal conceptions, the 
 changes are few and inconsequential ; in details they are numerous 
 and important. 
 
 As stated, the First Edition was written with a view only to 
 experimental use in my own classes. This edition is prepared in 
 the hope of larger use and greater usefulness. The extent to 
 which these hopes are to be realized is "in the womb of the fu- 
 ture." Jno. C. Townes. 
 
 Austin, Texas, March 31, 1911.
 
 CONTENTS. 
 
 INTRODUCTION. 
 Chapter I. 
 
 PASE. 
 
 Introductory 1 
 
 Some General Principles of Law 3 
 
 Sovereignty 3 
 
 Government 4 
 
 Law 6 
 
 Persons 6 
 
 Things - 7 
 
 Conduct 7 
 
 Accident 8 
 
 Legal Rights and Duties 8 
 
 Creation, Modification, and Destruction of Legal Rights and 
 
 Duties 10 
 
 Consequences of Affirmative Conduct 11 
 
 Legal Duties, and Consequences of Failure to Discharge 13 
 
 Legal Causation 15 
 
 Remedy 15 
 
 Fixedness 16 
 
 Growth 16 
 
 Certitude 16 
 
 Presumptions 17 
 
 Legal Fiction* 17 
 
 PART L 
 Chapter I. 
 
 POLITICAL POWEB. 
 
 Political power— Definition 18 
 
 Sovereignty — General Discussion 18 
 
 Investiture of. 19 
 
 Governments 20 
 
 Taxing Power 23 
 
 Eminent Domain 23 
 
 Police Power 23 
 
 (xl)
 
 Ill CONTENTS. 
 
 Chapter II. 
 
 ORGANIZATION OF GOVERNMENTS IN THE TERRITORY OF THE UNITED STATES. 
 
 Government 25 
 
 Political organizations considered theoretically 25 
 
 Unitary States 25 
 
 Confederations 26 
 
 Federal States 26 
 
 Development of, in the United States 28 
 
 Confederation 30 
 
 Constitution of the United States 31 
 
 Construction of the Constitution 32 
 
 Minor Political Subdivisions 40 
 
 Counties 41 
 
 Cities and Towns 43 
 
 PART II. 
 
 THE UNITED STATES AND STATE GOVERNMENTS AND THEIR 
 RELATIONS TO EACH OTHER. 
 
 Chapter I. 
 
 THE UNITED STATES GOVERNMENT. 
 
 Creation of 46 
 
 Comparison of Federal and State Governments 46 
 
 Regulation of Suffrage 48 
 
 Legislative Department 49 
 
 Powers of Congress 51 
 
 Executive Department » 53 
 
 President 53 
 
 Manner of Election 54 
 
 Executive Departments 55 
 
 Pardons 56 
 
 Treaties 57 
 
 Appointing Power 57 
 
 Powers in Connection with Legislation 58 
 
 Intercourse with Foreign Nations 58 
 
 Judicial Department 69 
 
 Judicial Function 59 
 
 Judicial Powers 60 
 
 Federal Judicial System 63 
 
 District Courts 64 
 
 Circuit Courts 64 
 
 Circuit Court of Appeals 66 
 
 Supreme Court 67 
 
 Constitutional Limitations upon the Power of 70
 
 CONTENTS. Xlll 
 
 Chapter IL 
 
 STATE GOVERNMENTS. 
 
 State Governments 71 
 
 General Powers 72 
 
 Form of Government 73 
 
 Legislative Department 74 
 
 Executive Department 76 
 
 Judicial Department 78 
 
 Concurrent and Exclusive Jurisdiction of State and Federal 
 
 Governments 79 
 
 State Judicial Systems 80 
 
 Extraordinary Governmental Agencies 82 
 
 Guarantees in the Federal Constitution to the Several States 83 
 
 Limitations In Federal Constitution on Powers of the States 84 
 
 Chapteb III. 
 
 RELATIONS BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE 
 STATE GOVERNMENTS, AND BETWEEN THE SEVERAL STATE GOVERN- 
 MENTS. 
 
 Political Organizations In the United States 85 
 
 The States 85 
 
 The Confederation 87 
 
 Formation of the United States Government 88 
 
 Constitution of the United States 91 
 
 The Government of the United States 92 
 
 Legislative Powers largely Exclusive; Judicial largely Con- 
 current 93 
 
 Taxation 95 
 
 Relations hetween the States 96 
 
 Chapter IV. 
 
 BELATI0N8 BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE 
 STATE GOVERNMENTS, AND BETWEEN THE SEVERAL STATE GOVERN- 
 MENTS. (Cont'd.) 
 Extracts from decisions of the United States Supreme Court: - 
 
 Gibbons vs. Ogden, opinion in part 99 
 
 McCulloch vs. Maryland, opinion in part 101 
 
 Veazie vs. The Bank, opinion in part , ... 114 
 
 Buffington vs. Day, opinion in full 115 
 
 Kohl vs. United States, opinion in part 121 
 
 Munn vs. Illinois, opinion in part 123 
 
 b
 
 XIV CONTENTS. 
 
 PART in. 
 
 LAWS GOVERNING THE CONDUCT OP PERSONS. 
 Chapteb I. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTES. 
 
 Definitions of Law 124 
 
 Different Kinds of Law, Enumeration of 128 
 
 Unwritten or Common Law 128 
 
 Written Law 129 
 
 Substantive Law 132 
 
 Adjective Law 132 
 
 Public Law 133 
 
 Private Law 133 
 
 Common Law 133 
 
 Roman Law 133 
 
 Civil Law 134 
 
 Criminal Law 134 
 
 Equity 134 
 
 Contract Law 135 
 
 Non-Contract or Tort Law 136 
 
 Tbe Law Merchant 136 
 
 Ecclesiastical Law 136 
 
 Ex Post Facto Law 137 
 
 Retroactive Law 137 
 
 Military Law 138 
 
 Martial Law 138 
 
 Maritime Law 138 
 
 Purposes of Sovereignty in Making Law 139 
 
 Considerations Controlling Sovereignty In Making Laws 140 
 
 Legal Rights US 
 
 Chapter II. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTEB. (Cont'd.) 
 
 Subject Matter of Laws 146 
 
 Citizens, Subjects 146 
 
 Normal Persons 149 
 
 Abnormal Persons 150 
 
 Insane Persons 150 
 
 Persons under Duress 152 
 
 Drunken Persons 152 
 
 Married Women and Infants 152 
 
 Things 152 
 
 Conduct 154 
 
 Affirmative Wrong 156 
 
 Negative Wrong 156
 
 CONTENTS. XV 
 
 Chapter III. 
 
 MUNTCTFAL LAW AND ITS SUBJECT MATTER. (Cont'd.) 
 
 Mental Condition as Affecting Conduct 157 
 
 In Criminal Law 158 
 
 In Tort Law 159 
 
 In Contract Law 161 
 
 Standards of Mental Capacity 162 
 
 Ignorance and Mistake 163 
 
 Accidents 16* 
 
 Chapter IV. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. (Cont'd.) 
 
 To whose Conduct does the Law look in Awarding Benefits and 
 
 Fixing Liability 166 
 
 Primary Range of Right and Liability 166 
 
 Secondary Rrange of Right and Liability 166 
 
 Legal Identity 167 
 
 Substitution 168 
 
 Co-operation 170 
 
 Express Agreement 1 171 
 
 Non-assignability of Duty 171 
 
 Public Policy 173 
 
 Analogous Relations 173 
 
 To what Consequences of Conduct Legal Liability Extends 174 
 
 Chapter V. 
 
 MUNICH? AL LAW AND ITS SUBJECT MATTER. (Cont'd.) 
 
 Status as Affecting Legal Responsibility 176 
 
 Mental Unsoundness 176 
 
 Drunkenness 176 
 
 Duress 177 
 
 Infancy 177 
 
 Coverture 179 
 
 Relations to Sovereignty 181 
 
 Governmental Agencies 181 
 
 Direct Representatives of Sovereignty 181 
 
 Political Subdivisions, — Counties 183 
 
 Cities and Towns 183 
 
 Other Divisions 184 
 
 Officers 185 
 
 Chapter VI. 
 
 LEGAL BIGHTS AND THEIB CLASSIFICATION. 
 
 Definition 18S 
 
 Classification 188
 
 XVI CONTENTS. 
 
 Personal Rights 189 
 
 Bodily Security 189 
 
 Security to the Mind 191 
 
 Security to Morals 193 
 
 Freedom of Action 194 
 
 Chapter VII. 
 
 LEGAL EIGHTS AND THEIB CLASSIFICATION. (Cont'd.) 
 
 Right to Contract > 197 
 
 Essentials of Contract 199 
 
 Parties 199 
 
 Purpose 200 
 
 Consideration 201 
 
 Form , 202 
 
 Right to Acquire, Hold, and Dispose of Property'. 203 
 
 Right to Carry on Business .^ , . 204 
 
 Right to Form Special Relations 205 
 
 Freedom of Speech 205 
 
 Freedom of Thought 206 
 
 Freedom of Conscience 206 
 
 Right to Reputation 206 
 
 Chapter VIII. 
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. (Cont'd.) 
 
 Civil Rights 209 
 
 Equal Protection of Law 209 
 
 Due Process of Law 210 
 
 Political Rights 212 
 
 Suffrage 212 
 
 Office Holding 213 
 
 Right of Petition 213 
 
 Rights Against Particular Persons 213 
 
 Dependent on Contract 213 
 
 Not Dependent on Contract 214 
 
 Rights in Things ". 214 
 
 Ownership 215 
 
 Special Ownership 217 
 
 Rights in Persons 218 
 
 Remedial Rights 220 
 
 Self Help 220 
 
 Through Governmental Agencies 221 
 
 Effect of Locality on Remedial Rights 222 
 
 Crime 222 
 
 Tort 223 
 
 Contract 224
 
 CONTENTS. XVI 1 
 
 Chapter IX. 
 
 SPECIAL KIND OF CONDUCT AFFECTING LEGAL RIGHTS AND DUTIES. 
 
 Conduct, — General Discussion 225 
 
 Conduct Violative of Criminal Law 226 
 
 Conduct Affecting Private Rights 227 
 
 Contract 227 
 
 Executory 228 
 
 Executed 228 
 
 Express 229 
 
 Implied 230 
 
 Agreements not Resulting In Contract 231 
 
 Lacking Competent Parties 231 
 
 Lacking Consideration 234 
 
 Defective in Form 236 
 
 Lacking Legality of Purpose 238 
 
 Quasi-Contracts 239 
 
 Chapter X. 
 
 SPECIAL KIND OF CONDUCT AFFECTING LEGAL RIGHTS AND DUTIES. (Cont'd.) 
 
 Negligence 242 
 
 Fraud 245 
 
 General Conception 245 
 
 Legal Conception 246 
 
 Common Law Conception ; 247 
 
 Conception in Equity 248 
 
 Conduct Fraudulent per se 250 
 
 Matter as to which Deception must Exist 251 
 
 Means of Deception 253 
 
 Results of Deception 256 
 
 Parties Affected by 257 
 
 Classifications of Fraud 257 
 
 Frauds upon Persons not Parties to the Transaction 262 
 
 Chapter XL 
 
 SPECIAL KIND OF CONDUCT AFFECTING LEGAL RIGHTS AND DUTIES. (Cont'd.) 
 
 Estoppel 264 
 
 By Deed 264 
 
 In Pais 264 
 
 License 266 
 
 Definition 266 
 
 License by Law 266 
 
 License by Act of Parties 267 
 
 Waiver 269 
 
 Limitation 270
 
 XV1U CONTENTS. 
 
 Notice 272 
 
 Implications in Law 272 
 
 Implications in Fact 273 
 
 Death 274 
 
 Chapteb XII. 
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES. 
 
 Domestic Relations. 278 
 
 Marriage and the Family 278 
 
 Common Law Marriage 279 
 
 Statutes Regulating Marriage 279 
 
 Competency of Parties 281 
 
 Effects of Marriage 281 
 
 Liability of one Spouse for the Conduct of the Other 283 
 
 Divorce 284 
 
 Parent and Child 287 
 
 Illegitimate Children 289 
 
 Adoption 289 
 
 Guardian and Ward 291 
 
 Chapter XIII. 
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES. (Cont'd.) 
 
 Relations Involving Substitution 293 
 
 Master and Servant 293 
 
 Who May Be 295 
 
 Rights and Duties of 295 
 
 Ending of the Relation 302 
 
 Liability of Each for Wrong by the Other 302 
 
 Chapter XFV. 
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES. (Cont'd.) 
 
 Principal and Agent * 305 
 
 How Formed 305 
 
 By Agreement. 305 
 
 By Estoppel 308 
 
 By Law 809 
 
 Termination of Relation 810 
 
 Duties as between 811 
 
 Rights and Liabilities as to Third Parties 311 
 
 Chapter XV. 
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES. (Cont'd.) 
 
 Relations based on Co-operation and Community of Interest 312 
 
 Joint Actors 312 
 
 Employer and Independent Contractor 312 
 
 Partnerships 313
 
 CONTENTS. XIX 
 
 Chapter XVI. 
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS AND DUTIES. (Cont'd.) 
 
 Corporations 317 
 
 Definitions 317 
 
 Enumeration of Essentials and Powers 321 
 
 Essentials 322 
 
 Different Kinds 326 
 
 How Formed 327 
 
 Powers 330 
 
 Ultra Vires 331 
 
 Chapter XVII. 
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES. (Cont'd.) 
 
 Charter 334 
 
 Capital Stock 340 
 
 Membership 342 
 
 Internal Government 344 
 
 Corporate Funds 345 
 
 Corporations De Facto 347 
 
 Chapter XVIII. 
 
 property. 
 
 Ownership 351 
 
 General Conception 351 
 
 Elements of Ownership 352 
 
 Right of Possession 353 
 
 Right to Use 355 
 
 Right to Profits 355 
 
 Right to Modify 356 
 
 Right to Dispose of 356 
 
 Acquisition 356 
 
 Discovery 357 
 
 Conquest 358 
 
 Production 358 
 
 Increase 360 
 
 Legal Succession to the Rights of Another 360 
 
 By Act of Both Parties 361 
 
 By Act of the Transferee 362 
 
 By Act of the Transferor 363 
 
 By Operation of Law 364 
 
 By Act of Governmental Agencies 365
 
 XX CONTENTS. 
 
 Chapteb XIX. 
 peopeety. (Cont'd.) 
 
 Limitations on Property Rights 370 
 
 Eminent Domain 370 
 
 Taxation , 370 
 
 Police Power.. 370 
 
 For Protection of Individuals 371 
 
 General Ownership 373 
 
 Special Ownership . . . 373 
 
 Title "... 374 
 
 Subject Matter of Ownership 375 
 
 Things Permanent and Transitory 376 
 
 Things Movable and Immovable 376 
 
 Things Corporeal and Incorporeal 376 
 
 Things Real 377 
 
 Land 378 
 
 Fixtures .380 
 
 Easements 381 
 
 Tenures 384 
 
 Chapteb XX. 
 peopebty. (Cont'd.) 
 
 Estates 386 
 
 Enumeration of 386 
 
 Real and Personal Property 391 
 
 Real Estate 391 
 
 Personal Property 392 
 
 Licenses 392 
 
 By Law 394 
 
 Fences 395 
 
 Rights in Water 395 
 
 Subterranean 395 
 
 Surface 397 
 
 In Streams 397 
 
 Conveyances 399 
 
 Form 399 
 
 Registration 399 
 
 Innocent Purchasers 400 
 
 Violation of Rights in Land 401 
 
 Facts Proving Title 402 
 
 Chapteb XXI. 
 
 PEBSONAL PEOPEBTY. 
 
 Transfers of Title 406 
 
 Sales 405
 
 CONTENTS. XXI 
 
 Barter 407 
 
 Gifts 407 
 
 Bailments 407 
 
 Incorporeal Personal Property 408 
 
 Choses in Action 409 
 
 Patents .: ... 409 
 
 Copyrights 410 
 
 Good Will ." 411 
 
 Trade Marks 411 
 
 Transmission of Property on the Death of the Owner 413 
 
 Wills 414 
 
 Inheritance 414 
 
 Administration 415 , 
 
 Chapter XXII. 
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY APPLIED TO PUBLIC USES. 
 
 Matters Purely Public 416 
 
 Public Utilities 417 
 
 Extent of Governmental Control "418 
 
 Special Privileges. i 418 
 
 Duties due the Public . . . 419 
 
 Common Carriers 419 
 
 Duties and Liabilities . 420 
 
 Efficient Service 420 
 
 Prompt Service 421 
 
 Safe Service 422 
 
 No Unjust Discrimination 423 
 
 Reasonable Charges 425 
 
 Courtesy , 426 
 
 Right to Change Legal Duties by Contract 426 
 
 Telegraph and Telephone Companies 430 
 
 Other Public Utilities 434 
 
 Private Property Charged with Public Uses 434 
 
 PART IV. 
 
 PROCEDURE. 
 Chapter I. 
 
 LEGAL SANCTIONS. 
 
 Necessity For 437 
 
 Classification 438 
 
 Rewards 439 
 
 Penalties 439 
 
 Sanctions Applied by Individuals 440
 
 XX11 CONTENTS. 
 
 Sanctions Applied by Governmental Agencies 440 
 
 For the Protection of the Public 441 
 
 Remedies to Protect Private Rights 442 
 
 Preventative Remedies 443 
 
 Redressive Remedies 443 
 
 Damages 443 
 
 Chapteb IL 
 
 COURTS. 
 
 Nature and Organization 447 
 
 Definition 447 
 
 Judges 448 
 
 Jury 449 
 
 Clerks 450 
 
 Sheriffs or Marshals 450 
 
 Attorneys-at-Law 450 
 
 Different Kinds 451 
 
 Common Law 451 
 
 Equity 456 
 
 Of Blended Jurisdiction 459 
 
 Chapteb III. 
 
 HOW JURISDICTION OF A CASE IS ACQUIRED. 
 
 Parties 461 
 
 Things 462 
 
 Subject Matter 462 
 
 Issues 463 
 
 Jurisdiction 463 
 
 Kinds of Proceedings 464 
 
 Potential Jurisdiction 464 
 
 Active Jurisdiction 465 
 
 Chapter IV. 
 
 PLEADING. 
 
 Definition 469 
 
 Manner of Presenting and Joining Issues 470 
 
 Defensive Pleadings 471 
 
 Order of Pleadings 472 
 
 Number of Defenses 473 
 
 Amendments 473 
 
 Notice of Filing 473 
 
 Motions 474
 
 CONTENTS. XX111 
 
 Chapter V. 
 
 EVIDENCE. 
 
 Who Must Prove 475 
 
 What Must be Proven 477 
 
 Means of Proof 477 
 
 Witnesses 477 
 
 Written Instruments 479 
 
 Proof of Genuineness 481 
 
 Best Evidence Rules 482 
 
 Relaxations of Rule One . . 482 
 
 Exceptions to Rule Two 486 
 
 Demonstrative or Real Evidence 488 
 
 Chapteb VI. 
 
 evidence. (Cont'd.) 
 
 Nature of the Matters which may be Introduced In Evidence 
 
 Facts 490 
 
 Classifications of Evidence 491 
 
 Original and Hearsay 492 
 
 Primary and Secondary 493 
 
 Direct and Circumstantial 494 
 
 Contradictory and Corroborative 494 
 
 Independent and Cumulative 495 
 
 Res Ctestae 495 
 
 Dying Declarations 496 
 
 Statements Against Interest 496 
 
 Relation of Facts to the Matters in Controversy 498 
 
 Function of Judge and Jury 500 
 
 Credibility of Witnesses 502 
 
 Weight of Evidence 502 
 
 When Is Proof Sufficient 605 
 
 Chapter VII. 
 
 TRIALS. 
 
 How Conducted 507 
 
 Judgment 508 
 
 Revision of 508 
 
 Enforcement 510
 
 X30T CONTENTHL 
 
 PART V. 
 
 APPLICATION OF GENERAL RULES TO CRIMINAL, TORT, AND 
 CONTRACT LAW. 
 
 Chapter I. 
 
 CRIMINAL LAW. 
 
 Classification of Crimes 512 
 
 Defining Crimes a Legislative Function 614 
 
 Mental Capacity, Motive, and Intent in Crime 515 
 
 Evidences of Intent 519 
 
 Ignorance and Mistake 519 
 
 Duress 520 
 
 Who May Commit 521 
 
 Connection of Parties with Particular Crimes 522 
 
 Punishments 523 
 
 Different Classes of Offenses 524 
 
 Procedure 525 
 
 Juries 526 
 
 Pleadings by the State 526 
 
 Pleadings by the Defendant 527 
 
 Evidence 528 
 
 Argument of Counsel 528 
 
 Charge and Verdict » 528 
 
 Judgments 529 
 
 Constitutional Guarantees 529 
 
 United States Constitution 529 
 
 State Constitutions 530 
 
 Chapter II. 
 
 TORTS. 
 
 General Conception 533 
 
 Definition 534 
 
 Contrasted with Crimes and Breaches of Contract 535 
 
 How Committed 537 
 
 Status as Affecting Parties 539 
 
 Party Injured 539 
 
 Wrong-Doer 539 
 
 Sovereignty 539 
 
 Counties 539 
 
 Cities and Towns 540 
 
 Public Officers 540 
 
 Natural Persons 540 
 
 Combinations of Natural Persons 541 
 
 For Whose Tortious Conduct One is Responsible 542
 
 CONTENTS. XXV 
 
 Damages 543 
 
 For What Consequences of Conduct Liability Attaches 544 
 
 Discharge of Liability 544 
 
 Indemnity and Contribution 545 
 
 Chapteb III. 
 
 SOME NAMED TORTS. 
 
 Negligence 547 
 
 Definition 547 
 
 Negligence, Matter of Law or Fact 548 
 
 Contracting Against Liability for 549 
 
 Remote and Proximate Cause 551 
 
 Failure of Duty Necessary to 551 
 
 Contributory 552 
 
 • Imputed . 553 
 
 Remedies 554 
 
 Nuisance 554 
 
 Definition 554 
 
 Nature of Injury Necessary to -. 557 
 
 Natural Conditions 559 
 
 Must Interfere with Ordinary Person 559 
 
 Direct Results of Wrong 559 
 
 In Water, Light, and Air 560 
 
 Rights of Way 561 
 
 Torts Violative of Bodily Rights '. 562 
 
 Assault and Battery 562 
 
 False Imprisonment 562 
 
 Malicious Prosecution 563 
 
 Poisoning 564 
 
 Defamation 564 
 
 Definition 564 
 
 Publication ; 564 
 
 Nature of the Idea Conveyed 564 
 
 Falsity of the Idea 565 
 
 Concerning Another 566 
 
 Without Legal Excuse 566 
 
 Libel and Slander 566 
 
 Absolute Privilege 566 
 
 Conditional Privilege 567 
 
 Damages 567 
 
 Torts Affecting Property Rights 568 
 
 Trespass "... 568 
 
 Fraud 569 
 
 Torts Affecting Real Property Only 573 
 
 Waste 573
 
 XXTi CONTENTS. 
 
 Injuries to Easements 574 
 
 Cloud on and Slander of Title 574 
 
 Torts Affecting Personal Property Only 575 
 
 General Discussion 575 
 
 Interference under Process 576 
 
 Incorporeal Rights 577 
 
 Torts against Rights In Another 578 
 
 General Discussion 578 
 
 Injuries Resulting in Death 579 
 
 Chapteb IV. 
 
 OUTLT1CE OF THE LAW OF CONTRACTS. 
 
 Definition 582 
 
 Essentials 583 
 
 Offer and Acceptance 583 
 
 Capacity of Parties 584 
 
 Natural Persons 584 
 
 Aliens 585 
 
 Infants 585 
 
 Lunatics and Drunkards 586 
 
 Married Women 587 
 
 Corporations 587 
 
 Consideration 588 
 
 Necessity For 588 
 
 What is 589 
 
 Adequacy of 590 
 
 Legality of 590 
 
 Executed or Executory but not Past 590 
 
 In Negotiable Instruments 591 
 
 Form 591 
 
 Written or Parol 591 
 
 When Writing Required 591 
 
 Statute of Frauds 595 
 
 Effect of Non-Compliance 695 
 
 Chapteb V. 
 otnxrNE of the law of contracts. (Cont'd.) 
 
 Genuineness of Assent 696 
 
 Mistake 596 
 
 Of Law 596 
 
 Of Fact 597 
 
 Misrepresentation and Fraud 598 
 
 Elements of 599 
 
 Intent to Deceive and Deception 601 
 
 Action by the Deceived 601
 
 CONTENTS* XXvil 
 
 Duress 601 
 
 Definition 601 
 
 Duress of Imprisonment 602 
 
 Per Minos 602 
 
 Effect of 602 
 
 Undue Influence 603 
 
 Legality of Object 603 
 
 Rules of Construction 604 
 
 Effect of Illegality 605 
 
 Agreements wholly Executed 605 
 
 Agreements Performed by One Party 605 
 
 Agreements Growing out of Prior Illegal Agreement 607 
 
 In Hands of Assignee 607 
 
 Illegal In Part 608 
 
 Classification of Illegal Agreements 608 
 
 Chapter VI. 
 
 OOTXINE OF THE LAW OF CONTRACTS. (Cont'd.) 
 
 Different Kinds 610 
 
 Covenants and Conditions 610 
 
 Classifications 611 
 
 Express and Implied 611 
 
 Entire and Severable '612 
 
 Joint, Several, and Joint and Several 612 
 
 Negotiable and Non-Negotiable 612 
 
 Operation of 613 
 
 At Common Law 613 
 
 In Equity 615 
 
 Methods of Assignment 615 
 
 Effect of Assignment 616 
 
 Interpretation of 617 
 
 Rules of Evidence 617 
 
 Parol Contracts 617 
 
 Written Contracts 617 
 
 Existence of the Document 617 
 
 Evidence that It is a Contract 618 
 
 Evidence as to Terms 618 
 
 Construction of 619 
 
 Rules as to Whole Instrument 619 
 
 Rules as to Words and Phrases 620 
 
 Discharge of 621 
 
 By Agreement 622 
 
 By Performance 623 
 
 By Impossibility of Performance 624 
 
 By Operation of Law 624 
 
 By Breach 625
 
 STUDIES 
 
 IN 
 
 AMERICAN ELEMENTARY LAW 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 Our subject is Elementary Law in the United States. These 
 terms embrace the fundamental principles which are embodied in 
 and operate through our American governmental institutions, 
 the foundations on which the whole fabric of American juris- 
 prudence, government and law rests, and their influence and 
 manifestation in and through this fabric. Thus understood, few 
 subjects equal it in importance and interest, and none can more 
 worthily or profitably engage the time and effort of the student 
 of Law. 
 
 These principles are few, but their application to the almost 
 infinite variety and complexity of facts and conditions which go 
 to make up the sum of American life, public and private, is most 
 varied and exceedingly difficult. The attempt at this application 
 by the numerous States, legislatures, courts, and law writers at 
 widely different times, and under widely different circumstances, 
 has led to an almost infinite number of legal rules or formulae. The 
 body or aggregate of these rules, in the main consistent and just, 
 yet occasionally inconsistent and unjust, we are taught to look 
 upon as the law, and much of the time devoted to legal education 
 is given to classifying and assimilating these formulae and fixing 
 1
 
 2 AMERICAN ELEMENTARY LAW. 
 
 them in the mind of the student as the roles which are to control 
 in his future professional career. 
 
 This study of the formulated rules is good, but it is not the 
 best ; for, valuable as is the rule deduced from the principle, and 
 authoritative as is the expression of the rule in statute, or deci- 
 sion, or recognized text, still neither student nor lawyer nor judge 
 will ever see in the rule its highest merit or obtain from it the 
 safest guidance until he is familiar with the great principles 
 which secured its approval and led to its establishment. Let us, 
 then, give ungrudgingly our time and patience and energy and 
 mind in searching for these basic principles and tracing out their 
 influence and application. I ask your aid in this search ; for, sad 
 to say, notwithstanding the interest and importance of the un- 
 dertaking, I have been unable to find any one who has diligently 
 and successfully pursued it. 
 
 There are many books on Elementary Law, some good, some bad, 
 some indifferent. Some are fine treatises on jurisprudence ; some 
 are apparently efforts to state legal rules in simple and non-techni- 
 cal language ; some are fine analyses of our institutions and quite 
 scientific presentations of legal rules, but I have found in none of 
 them an attempted statement of the underlying principles on 
 which our institutions and rules of law are founded, nor an effort 
 to ascertain and point them out or show their influence in the de- 
 velopment of our American system. I appreciate the difficulty of 
 the task and acknowledge in advance my incapacity to discharge 
 it ; but if it is never attempted it will never be achieved, and if it 
 be attempted, there is at least the possibility of approximate suc- 
 cess; and even decided failure might still prompt to further and 
 more successful endeavor by others more capable. 
 
 This, then, will be the order of our work : to ascertain and state 
 as clearly as possible as many of the fundamental principles upon 
 which our government and law are founded as we may be able, 
 and then to develop their practical application and influence — 
 
 First — In the action of sovereignty in the organization and 
 maintenance of our governments ; 
 
 Second — In the operation and working of these governments ; 
 
 Third — -In the general rules regulating and governing the con- 
 duct of individuals ; 
 
 Fourth — In the law of procedure, and
 
 INTRODUCTORY. 8 
 
 Fifth — In a general but more specific manner in the three great 
 divisions of Criminal Law, Tort Law and Contract Law. 
 
 Many of the principles thus dealt with are applicable in all five 
 of these connections, and some in more than one but less than all, 
 and some in only one. It would consequently involve consider- 
 able repetition and loss of time to take each up separately and 
 show or attempt to show its effect throughout the whole body of 
 the law. To avoid this and to reduce the labor and liability to 
 confusion, the subject will be presented under the five general 
 subdivisions indicated above, and matters common to more than 
 one will be treated at some length in the most appropriate connec- 
 tion and be dealt with more briefly in others, \rith reference to 
 the fuller treatment. 
 
 SOME GENERAL PRINCIPLES OF LAW. 
 Sovereignty. 
 
 1. Political power embraces the rightful authority to organize 
 and operate a localized government, based upon physical force 
 and capable of maintaining itself against both external and in- 
 ternalfoes, and of exercising control over all persons and things 
 within its territorial limits. 
 
 2. The sum of these powers is sovereignty. The person or col- 
 lection of persons in whom these powers exist is sovereign. All 
 the persons subject to the same sovereign are a people. 
 
 3. "A State is a body of persons, living within a specified ter- 
 ritory, permanently organized for the purposes of government. ' ' 
 
 4. In our American institutions, all of these political powers 
 are not vested in any one collection of persons. They are divided ; 
 those which are usually denominated National are vested in a 
 designated portion of the people of the United States as a whole, 
 while those which are local or domestic are vested respectively in 
 designated portions of the people of the several States. 
 
 5. This division of political power results in two bases of gov- 
 ernmental authority, the first National or Federal, and the second 
 local or State. Of the first there is but one, the "people" of the 
 whole United States, whose jurisdiction extends over the whole 
 territory of the United States. Of the second there are many, con- 
 sisting severally of the ' ' people ' ' of each State, each distinct from 
 every other and having jurisdiction only in the territory of the
 
 4 AMERICAN ELEMENTARY LAW. 
 
 particular State. Each of these is supreme within the sphere of 
 its political activity. 
 
 6. Whether or not this division of subject matter over which 
 political power has ultimate jurisdiction destroys the sovereign 
 nature of the power as to the matters within its control is an aca- 
 demic question with which we have no concern further than to 
 guard ourselves against the erroneous doctrine that political 
 power can not thus be limited as to subject matter without waiv- 
 ing the supreme control over the matters to which it properly per- 
 tains. In our American Institutions the people of each state and 
 the people of the whole United States are each supreme in their 
 respective fields of political activity. In the academic sense of un- 
 limited political power, neither is sovereign. In the practical and 
 legal sense, each is sovereign within its own sphere of action. 
 
 7. The first duty of sovereignty is to perpetuate itself. 
 
 8. The second duty of sovereignty is to protect the whole people 
 subject to its jurisdiction in their collective or public capacity. 
 
 9. The third duty of sovereignty is to protect all the people sub- 
 ject to its jurisdiction in their just rights individually. 
 
 10. Sovereignty can not abdicate its functions nor grant them 
 irrevocably to its governmental agents. 
 
 11. Sovereignty may delegate the exercise of its powers to pub- 
 lic agents for public purposes. 
 
 12. A sovereign will not employ its agencies against itself, nor 
 give aid to persons engaged in the violation of its laws. 
 
 13. Political power has three phases or aspects: First, Deter- 
 minative; second, Applicatory, and third, Executive. 
 
 Government. 
 
 14. The system of agencies created and maintained by a sover- 
 eign through which to perpetuate itself and discharge its func- 
 tions, is a government. 
 
 In America governments are created and perpetuated by writ- 
 ten instruments called constitutions. 
 
 15. These constitutions necessarily have parts of four different 
 natures, viz ; creative, perpetuative, functional, and restrictive. 
 
 16. The creative parts are those providing for the institution 
 and organization of government. 
 
 17. The perpetuative are those providing for the renewal or 
 continuation of the government.
 
 INTRODUCTORY. 9 
 
 18. The functional are those which distribute power and duty 
 among the several agencies, and provide for the exercise of the 
 one and the discharge of the other. 
 
 19. The restrictive parts are those which reserve to the sover- 
 eign creating the government, to the people collectively or indivi- 
 dually, rights and privileges which the goverment can not inter- 
 fere with or take away ; or limit the exercise of power conferred 
 upon the governmental agencies. These restrictions are frequent- 
 ly, though not always, set out in a Bill of Rights. 
 
 20. In all American constitutions, the distinctions between de- 
 terminative, applicatory, and executive. powers are recognized, and 
 a different department of government is provided to exercise 
 each, called, respectively, the Legislative, Judicial, and Executive 
 Departments. 
 
 21. The division of the subject matter as to which the people of 
 the several states, and the people of the whole United States, re- 
 spectively are sovereign, results in the establishment of two gov- 
 ernments, each supreme within the sphere of political activity and 
 each without power as to matters exclusively within the jurisdic- 
 tion of the other, and each having some power over those matters 
 which are concurrently within the spheres of both. 
 
 22. The line of separation between these powers is drawn by the 
 Constitution of the United States, all powers conferred by that 
 instrument upon the Federal Government, pertaining to it, and 
 all powers not so conferred, remaining with the people and with 
 the states. 
 
 23. The United States Constitution should be construed fairly 
 according to the natural meaning and import of its language, al- 
 lowing to the Federal Government all those powers which pass to 
 it by such construction, and denying to it all powers which do not 
 so pass to it. 
 
 24. The powers delegated to governmental agencies are trusts 
 for the benefit of the sovereign and the people organizing the gov- 
 ernment, and are not for the benefit of those agencies, or persons 
 acting for them. Such agencies have only the authority conferred 
 upon them by the sovereign. 
 
 25. A person who is directly interested in the exercise or the 
 results of the exercise of governmental power can not act for the 
 sovereign in its exercise.
 
 6 AMERICAN ELEMENTARY LAW. 
 
 26. In the administration of government, the safety of the peo- 
 ple is the chief end. 
 
 27. The government should interfere with the individual only 
 so far as the public good requires. 
 
 28. The public good is best subserved by equality of right and 
 duty among all the individuals subject to the government. 
 
 This is correct in theory, but its practical application is ren- 
 dered impossible by the manifest inequality in merit and capacity 
 in individuals and the classes into which they are divided. 
 
 So that the actual present rule is equality in protection and as 
 near approach to equality in right and duty, privileges and bur- 
 den as the difference in individuals and their conditions will per- 
 mit consistently with the public good. 
 
 Law. 
 
 29. Law is an authoritative rule of being er conduct. A muni- 
 cipal law is a rule of being or conduct established by political 
 power capable of enforcing it. The law of any State or Nation is 
 the aggregate of such rules established and enforced by it. 
 
 30. The subject matter with which municipal law deals is per- 
 sons, things and conduct. 
 
 Persons. 
 
 31. A person is any being capable of sustaining legal relations, 
 that is, of having legal rights and owing legal duties. 
 
 32. Persons are natural and artificial. The first embraces all 
 human beings. The second, all legal entities created by sovereign 
 power for designated purposes, having such powers and rights, 
 and subject to such duties and obligations, as the creating power 
 prescribes. 
 
 33. A normal person is one who sustains the political status of 
 citizen or subject to the sovereign who is acting regarding him, 
 and whom the law regards as capable of determining his own con- 
 duct. 
 
 An abnormal person is one not a citizen or subject, or who is, 
 in reality, or by legal implication, regarded as incapable of self- 
 determination. The general rules of law are made for normal 
 persons. They are changed for the benefit of abnormal persons 
 as justice may require, and appropriate rules are provided as to 
 them. 
 
 34. The principal abnormal conditions recognized by law are
 
 INTRODUCTORY. 7 
 
 alienage, mental unsoundness, drunkenness, duress, infancy and 
 coverture, each of which is given such effect in dealing with per- 
 sons subject thereto as justice and public policy require. 
 
 Marriage. 
 
 35. The law recognizes the necessity of marriage and the de- 
 sirability of protecting the respective spouses in the rights inci- 
 dent to the married state. 
 
 The common law regards the husband and wife as one person, 
 the husband having the right of control. This is much modified 
 by statute in many States. 
 
 Family. 
 
 36. A family is a legal institution consisting of a number of 
 persons between and among whom there exists the duty to main- 
 tain and support on part of one of them and the right to be main- 
 tained and supported on part of the others, which rights and du- 
 ties result from status and not from contract. 
 
 Things. 
 
 37. A thing is any existence not a person. Corporeal things 
 are those discernible by the natural senses. Incorporeal things 
 are those not discernible by the natural senses. 
 
 Conduct. 
 
 38. Conduct is every manifestation a person makes of him- 
 self. The legal standard or unit by which conduct is measured 
 is the average man. 
 
 39. Conduct is affirmative, including all forms of human ac- 
 tivity, or negative, including all forms of failure or omission to 
 act when action is a duty. The same conduct may be affirmative 
 from one point of view and negative from another. 
 
 40. All affirmative conduct violative of the legal rights of an- 
 other, and all negative conduct in neglect or breach of legal duty 
 resting upon the person failing, is unlawful. 
 
 41. The law takes no cognizance of mental conditions or de- 
 signs not manifested in conduct either affirmative or negative. 
 
 42. The standard by which to determine the sanity of a person 
 as to any particular conduct is, Did the person at the time have 
 sufficient mental capacity to understand the legal nature of the 
 conduct and its probable results and consequences.
 
 8 AMERICAN ELEMENTARY LAW. 
 
 Motive is that which induces action. 
 
 Intending is the process through which the mind and will pass 
 in yielding to or rejecting motive. 
 
 Intent is the state of mind resulting from the process of in- 
 tending. 
 
 Purpose is the end to be attained. 
 
 43. The effect of design and motive upon conduct differs in 
 different branches of the law. In criminal law, mental capacity, 
 motive prompting conduct and intent are almost always taken 
 into account and are usually controlling in determining legal 
 liability; in tort law, mental capacity, motive and intent are 
 usually unimportant as regards liability for actual damages, 
 though in heinous cases they are taken into account in allowing 
 punitive or exemplary damages ; in contract law, mental capacity 
 is essential to the assumption of obligation, but mental capacity 
 and motive are of no consequence in determining the conse- 
 quences of breach of contract obligation once validly assumed. 
 
 Accident. 
 
 44. An accident is "the happening of an event without human 
 agency," or if through human agency, without the concurrence 
 of the will of him through whose agency it occurs. 
 
 45. An inevitable accident is one which occurs without any le- 
 gal wrong by any person. An inevitable accident never results 
 in legal liability except in cases of insurance. Accidents not in- 
 evitable, which result in hurt to him against whom the legal 
 wrong is committed always render the wrongdoer responsible. 
 
 Legal Rights and Duties. 
 
 46. Rightness, propriety, is conformity to authoritative stand- 
 ard. 
 
 47. Right and duty are correlative. 
 
 48. The sanction of law is necessary to the practical enjoyment 
 of legal right. 
 
 49. A legal right is a power, claim, interest, or advantage which 
 one or more persons enjoy under the protection of the law, se- 
 cured to him or them by the sovereign by giving to him or them 
 capacity to control by law the conduct of others with reference 
 thereto.
 
 INTRODUCTORY. » 
 
 50. Legal duty is subjection to a correlative legal right; that 
 is, the necessity laid on the person or persons owing the duty to 
 respect and leave inviolate the correlative legal right existing in 
 the person or persons to whom the legal duty is due. 
 
 51. Legal obligation results from the sovereign's recognition of 
 a legal right and its undertaking to protect the same by enforcing 
 the correlative legal duty. 
 
 52. The sovereign, as such, has rights and owes duties of a pub- 
 lic nature. These rights are protected by criminal law. The sov- 
 ereign may also have rights of a private nature, as rights of prop- 
 erty, rights under contract, etc. These are governed by the prin- 
 ciples of civil law, limited in their enforcement by the immunity 
 of the sovereign from suit except by its own consent. 
 
 53. Every man has legal rights in his own personality. Most of 
 these are inalienable. Some of them may be alienated. Many are 
 protected by constitutional provisions and bills of rights and are 
 beyond the power of government. These rights extend to and in- 
 clude capacities, advantages and privileges, secured by the pro- 
 tection of one 's body fully, of one 's reputation from all unlawful 
 interference, of one's mind partially, and of one's moral or spir- 
 itual natufe in a still more limited degree. 
 
 54. Every person may have and enjoy legal rights in things. 
 These are, in almost all instances, alienable, though the methods 
 by which this may be done are under governmental control. Some 
 of these rights are protected by constitutional provisions and are, 
 hence, beyond the power of the government to modify or interfere 
 with, except in the manner and to the extent permitted in the con- 
 stitution. 
 
 55. This right in things is called ownership or estate. In its 
 completeness, it consists of five elements, the right to possess, to 
 use, to derive benefit from, to modify or destroy and to transfer. 
 
 When all these combine, the estate is called general ownership. 
 When some of them less than all or all of them to a limited extent 
 exist, it is called special ownership. 
 
 56. Persons may have and enjoy legal rights in other persons. 
 Such rights are limited by the constitutional provisions against 
 slavery; and, it is sometimes claimed, are still further restricted 
 by the spirit and genius of our government. These rights are not 
 called ownership, but are in many respects analogous to it. They 
 consist in the right of one person to control, use or profit by an-
 
 10 AMERICAN ELEMENTARY LAW. 
 
 other in limited ways and for limited purposes. Such is the right 
 a parent has to control a child or to receive his wages, or the right 
 of a master to direct and appropriate benefits from the services of 
 his servant. 
 
 57. Every person may have legal rights against other persons. 
 These are limited by constitutional provisions forbidding impris- 
 onment for debt and exempting designated property from execu- 
 tion. These are specific claims one person has against another 
 designated person or persons. In a majority of instances they are 
 based upon contract. 
 
 58. In every government there must be some person or persons 
 who enjoy political rights or privileges. These are not inherent 
 in any particular individual as such, but are conferred by sover- 
 eignty upon such individuals and under such limitations as it sees 
 fit. In our American institutions some of these are protected by 
 constitutional provisions. 
 
 59. For the violation of every substantive right, the law pro- 
 vides a remedy. This right to remedy is called a remedial right. 
 
 The Creation, Modification and Termination of Legal Bights and 
 Duties. 
 
 60. The respective legal rights and duties of persons, as in- 
 volved in criminal and tort law, are fixed by the sovereign, irre- 
 spective of the consent of the persons immediately concerned; 
 that is, in these two branches of the law, certain legal rights and 
 duties are prescribed as incident to certain conditions or relations, 
 and all persons who come within these conditions or relations are 
 subject to the prescribed rules as to such rights and duties, with- 
 out reference to their assent to or disagreement from same. 
 
 61. The sovereign recognizes the right of persons in many re- 
 gards to modify existing rights and duties and to create new ones 
 by agreement. 
 
 62. Agreement is the meeting of two or more minds. There 
 must be a common understanding of the facts and the same will 
 concerning them. 
 
 63. In order for unperformed agreements to create, change, or 
 destroy legal rights, they must be genuine, between legally com- 
 petent parties, for lawful purpose, based upon valuable consider- 
 ation, and evidenced in proper form.
 
 INTRODUCTORY. 11 
 
 64. Agreements possessing the foregoing requisites are called 
 contracts, and the rules governing them constitute contract law. 
 
 65. Agreements non-en forcible in themselves, because they lack 
 some one or more of the elements of contract, but which have been 
 fully performed by both parties as originally contemplated, will 
 be recognized and upheld as sufficient basis for change of legal 
 rights always as between the parties to the agreement and usually 
 as against all persons. 
 
 66. Agreements not forbidden by good morals or law, but which 
 are defective simply by reason of want of capacity in one or more 
 of the parties thereto, will not be made the means of working in- 
 justice, and if they have been partially performed by either 
 party, the other will be compelled either to perform his part or 
 restore the performing party to his former condition. The state- 
 ment with reference to restitution must be qualified in case of in- 
 fants. If an infant has made an agreement and received advan- 
 tage under it and consumed that advantage during his minority, 
 his right to set aside the agreement can not be defeated by his fail- 
 ure to restore. 
 
 67. Agreements for the conveyance of real property having all 
 the other elements of contract, but defective in form, and which 
 have been fully performed by the purchaser and performed by 
 the seller to the extent of placing the purchaser in possession, will 
 be enforced against the seller if the purchaser has improved the 
 property. 
 
 68. Legal rights and duties may also be created, modified or lost 
 by conduct not constituting contract. Such conduct may be either 
 affirmative or negative. Before conduct can have such effect, this 
 effect must have been antecedently prescribed by some positive 
 rule of law, or the conduct must be such as to render it manifestly 
 unjust not to follow it with such consequences. 
 
 69. When one person has by conduct, affirmative or negative, 
 created in the mind of another a reasonable belief that a certain 
 fact or facts are true, and has thus induced the person deceived to 
 act on such belief in such way that it would work injury to him 
 to permit the other to deny his former representations or state- 
 ments, the latter is estopped from so doing and the rights of the 
 parties, as to this matter, must be determined as if the representa- 
 tions were true. 
 
 70. When a person having a right shall fail, for the length of
 
 12 AMERICAN ELEMENTARY LAW. 
 
 time prescribed by law, to assert the same against another who is 
 unlawfully depriving him of its benefits, his right to enforce 
 it against the party so holding adversely is lost. 
 
 71. If one person gives to another permission to do an act or a 
 series of acts otherwise invasive of the rights of the former, but 
 not contrary to law or good morals, such permission may be re- 
 voked at any time, but will still be good as a defense for conduct 
 committed under it. 
 
 72. Fraud is deception resulting in unfair disadvantage to the 
 deceived. 
 
 73. Fraud vitiates all transactions into which it enters, so far 
 as the defrauded party is concerned. The party guilty of the 
 fraud can not avail himself of it. 
 
 74. From a violation of the law no cause of action arises in be- 
 half of the wrongdoer. 
 
 75. From every violation of law resulting directly in injury to 
 the legal rights of another a cause of action arises in behalf of the 
 injured person against the wrongdoer. This is a remedial right. 
 
 76. Ignorance of the law excuses no one for its violation. 
 
 77. Misrepresentation of law, made with intent to deceive, will 
 be considered in behalf of the person deceived so far as the rights 
 of the deceiver are concerned, if the deceived had the right to look 
 to the deceiver for information. 
 
 78. In criminal law, ignorance of fact not due to negligence 
 excuses if the act under investigation be such that it would have 
 been lawful had the fact been as it was assumed to be. 
 
 79. Mutual mistake of fact as to- a material matter inducing 
 agreement will avoid the agreement. Unilaterial mistake of fact 
 will not of itself ordinarily prevent or avoid contract. 
 
 80. Mistake of fact will not usually excuse in tort law, but in 
 some instances it will. The line of separation is not clearly drawn 
 
 81. The law permits a transfer or assignment of rights which 
 do not grow out of or pertain to special or confidential relations. 
 Such assignments are effective without the consent of the person 
 owing the correlative duty. If the right grow out of or involve 
 special or confidential relation, it can not be assigned without the 
 consent of the person with whom such relation is sustained. If 
 the right involve public interest directly and appreciably, it can 
 not be assigned without the consent of the sovereign, obtained 
 through its proper representative.
 
 INTRODUCTORY. 13 
 
 82. The law permits a person to substitute another for himself 
 in the exercise of powers and rights not dependent on or growing 
 immediately out of special or confidential relations and which do 
 not materially affect public interests. In cases of confidential re- 
 lations, the consent of the person with whom the relation is sus- 
 tained must first be obtained, and in the case of public interest, if 
 substitution be permitted at all, the consent of the proper repre- 
 sentative of the public must first be obtained. 
 
 Legal Duties, and Consequence of Failure to Discharge. 
 
 83. The law does not permit the assignment of legal duties 
 without the consent of the person having the correlative right. 
 
 84. Where one person owes a duty to another and substitutes a 
 third person for himself in its discharge, the performance by the 
 substitute discharges the duty; failure to perform by the 
 substitute leaves the duty undischarged and binding upon him 
 who owed it. 
 
 85. We may sum up the last two statements by saying, legal 
 duties can not be assigned by the person obliged, but performance 
 may be delegated by him. 
 
 86. When a legal duty due to a third person rests on two or 
 more persons and one undertakes to discharge such duty and fails 
 and injury to the person having the correlative right directly re- 
 sults, both are responsible for such injury to the third person. As 
 between themselves, the one undertaking the duty is responsible. 
 
 87. When two or more persons owe an unconditional legal duty 
 to another, but one is bound primarily and the other secondarily, 
 failure to discharge the duty renders both liable to the person 
 having the correlative right. The one primarily bound, if he dis- 
 charge the duty, has no right of compensation from the one sec- 
 ondarily bound ; but if the one secondarily bound be compelled to 
 discharge the duty, he can compel compensation from the one pri- 
 marily bound. 
 
 88. Primary Range of conduct.— Every person is entitled to the 
 benefits arising to him from his own lawful conduct in his own be- 
 half. Every normal person is responsible to the public and to in- 
 dividuals injured for injuries resulting directly from his own 
 unlawful conduct. These benefits and responsibilities in the aggre- 
 gate constitute the primary range of right and liability. 
 
 89. Secondary Range of conduct. — The secondary range of con-
 
 14 AMERICAN ELEMENTARY LAW. 
 
 duct embraces all acts and omissions by one person, to the benefits 
 of which another person is entitled, or the liabilities for which at- 
 tach to another person. 
 
 There are six doctrines in law, from which such rights and lia- 
 bilities may arise, viz. Legal identity, Substitution, Co-operation, 
 Non-assignability of duty, Express Agreement, and in rare cases 
 Statutory Enactments, declaring such liability. 
 
 90. Identity. — Upon marriage at common law, the husband and 
 wife become one person in law, and the husband is legally respon- 
 sible in large measure for the conduct of the wife. The ancient 
 law on this subject is much modified by later statutes. 
 
 91. Substitution. — Where one person lawfully substitutes an- 
 other for himself in the exercise of any legal power or right, the 
 conduct of the substitute, within the limits of the substitution, is, 
 legally speaking, the conduct of the constituent, or one appointing 
 the substitute. 
 
 92. Co-operation. — Whenever persons act together in carrying 
 on a common lawful enterprise, their rights and duties as between 
 or among themselves are to be adjusted, in the absence of agree- 
 ment to the contrary, on the basis of equality. If a different rule 
 is to control, it must be shown to have been in contemplation of 
 the parties, or the circumstances must be such that justice 
 strongly requires a different settlement. 
 
 93. Whenever persons act together in carrying on a com- 
 mon lawful enterprise as against third persons, each is primarily 
 entitled to demand and receive all the advantages and each is pri- 
 marily responsible for all the injuries arising therefrom. These 
 settlements between each and third persons may be readjusted be- 
 tween the parties themselves according to the real intent of the 
 persons or, in the absence of such intent, the rules of justice and 
 right. 
 
 94. If persons act together in an unlawful manner, knowing it 
 to be such, each being equally guilty, no cause of action can arise 
 therefrom to either, either against his co-actor or against any 
 other person. 
 
 95. If persons act together in any matter not violative of the 
 criminal law or immoral in itself, but violative of the legal 
 rights of some other person, such actors honestly believing 
 they have the right to do as they are doing, each is responsible to 
 the party whose legal right has been violated for the full amount
 
 „ INTRODUCTOBT. 15 
 
 of the injury directly resulting to him ; subject, in rare cases, to 
 be offset by benefits actually received by him from such 
 action. In such cases, as between themselves, the parties are en- 
 titled to and subject to account and settlement as in lawful trans- 
 actions. 
 
 96. When persons participate in an unlawful act or enterprise, 
 one knowing the illegality and the other not having such informa- 
 tion, as to injured third parties, both are responsible. As between 
 themselves, the one having the guilty knowledge is responsible to 
 the other if he were the cause of the latter 's action. 
 
 97. Non-assignability of Duty. — As duties are non-assignable, 
 if a person who owes a duty delegates to another the performance 
 of the duty, this does not discharge the obligation. To effect such 
 discharge the substitute must perform the duty. 
 
 98. Express Agreement. — If one person expressly agrees to be 
 responsible for the conduct of another in proper way and for val- 
 uable consideration, the agreement is binding. 
 
 99. In a few instances, statutes declaring that one person shall 
 be responsible for what another does, or fails to do, have been sus- 
 stained, on grounds of public policy. 
 
 Legal Causation. 
 
 100. For an act or omission to be regarded in law as the cause 
 of a result, such result must either have been intended or must be 
 direct. A result is direct when a reasonably prudent person in 
 the situation of him whose conduct is being judged would have 
 contemplated such result as natural and probable. Consequences 
 neither intended nor direct are regarded as remote. For remote 
 consequences no legal liability attaches. 
 
 101. Where an independent responsible agency intervenes be- 
 tween the wrongful conduct of one person and the injury of an- 
 other, he who is guilty of the wrongful conduct is not responsible 
 for the damage unless he foresaw the intervention of such agency, 
 or should have foreseen such intervention by the exercise of ordi- 
 nary care and prudence. 
 
 Remedy. 
 
 102. Every member of a political community, by reason of his 
 membership therein, loses much of his right of self-help. The 
 right of reasonable protection of himself and others, and in some 
 cases, of his property, from unlawful violence is retained.
 
 16 AMERICAN ELEMENTARY LAW, 
 
 The right of redress by individual action for wrongs already in- 
 flicted is practically lost. 
 
 103. The individual being thus deprived of so great a share of 
 his right of self-help, it is incumbent on sovereignty to afford him 
 adequate remedy through its governmental agencies for all viola- 
 tion of his just rights. 
 
 104. In recognition of this obligation sovereignty organizes and 
 maintains a system of tribunals to investigate conduct and award 
 remedies. These tribunals are known as courts. 
 
 105. The final adjudication of legal rights and alleged viola- 
 tions of them and the denial or award of remedy is conclusive and 
 permanently binding on all. the parties to the litigation, and 
 those holding under them. This is the rule of res adjudicata. 
 
 Fixedness. 
 
 106. It is essential to the good order and well being of the com- 
 munity that the rules of conduct which are to be observed within 
 the community, and upon which legal rights and duties depend, 
 should be known and reasonably permanent. Frequent and un- 
 necessary change is hurtful, hence a statute once passed should 
 not be lightly set aside by subsequent legislation, and a rule, once 
 announced by the courts as a part of the Common Law, should be 
 firmly adhered to and followed until changed by the Legislature 
 or until it is demonstrable that it is in conflict with the present 
 development of the community. This latter rule is known as the 
 doctrine of stare decisis. 
 
 Growth. 
 
 107. Law is the authoritative expression of public opinion and 
 conscience. As the people progress, public opinion and conscience 
 change. This progress most frequently finds expression through 
 legislative enactments. It also expresses itself through the courts 
 by setting aside judicial precedents which are no longer applica- 
 ble to existing conditions. "The reason of the rule having failed, 
 the rule itself fails." 
 
 Certitude. 
 
 108. The forces that make for fixedness and those which make 
 for progress are in perpetual conflict, which must continue until 
 the established rules of conduct shall be absolutely based upon 
 truth, and law and justice shall become convertible terms.
 
 INTRODUCTORY. 17 
 
 Presumptions. 
 
 109. A presumption is an assumption of the truth of a fact or 
 facts which obviates the necessity of proof to sustain it. The law 
 makes many such assumptions. A few of these not only obviate 
 the necessity of proving the proposition assumed, but are pressed 
 to the extent that no controverting testimony can be received. 
 These are called conclusive presumptions and are binding on all 
 whether the fact assumed be in reality true or not. 
 
 Other presumptions simply relieve from the necessity of prov- 
 ing the assumed fact and deal with it as true until it is shown by 
 evidence to be erroneous. These are called rebuttable presump- 
 tions. 
 
 Legal Fictions. 
 
 110. A legal fiction is a conclusive presumption by the law that 
 a fact is true when it is known to be false. 
 
 Legal fictions are indulged in principally in matters of proced- 
 ure to offset the injustice or extreme inconvenience which would 
 result in particular cases from some arbitrary rule established by 
 law because conducive to justice in the great majority of instances 
 coming within its application. 
 S
 
 PART I. 
 
 POLITICAL POWER AND ORGANIZATION OF GOVERN- 
 MENTS. 
 
 CHAPTER L 
 
 POLITICAL POWEB. 
 
 Political power in its truest sense consists of the combination of 
 moral right and physical capacity to exercise general control over 
 the conduct of others by force. 
 
 The complete conception embraces both the moral right and the 
 physical capacity. Moral right without the physical capacity to 
 enforce itself would lack the mandatory element necessary in 
 power. Physical power without moral right would lack the ele- 
 ment of propriety which has come to be a part of the conception of 
 political power and would be but brute force. In the earlier stages 
 of the world's development, the moral element was little regarded 
 and the element of force had undue emphasis. The result was or- 
 ganization for the purpose of carrying out the will of the tyrant 
 or despot rather than for proper political purposes according to 
 present standards of government and governmental authority. 
 
 Whatever differences of opinion there may be regarding the 
 foregoing statements as to the ethical element in political power, 
 it is conceded on all hands that this power embraces the rightful 
 authority to organize and operate a government having a fixed lo- 
 cality, based upon physical force, capable of maintaining itself 
 against both external and internal foes and of exercising control 
 over all persons and things within its territories. 
 
 SOVEREIGNTY. 
 
 A certain amount of political power constitutes sovereignty. 
 In the technical use of the term it embraces all, or the aggregate, 
 of such powers, and it is customary to define sovereignty as su- 
 preme political power. This aggregate of powers certainly is
 
 POLITICAL POWER. 19 
 
 sovereignty ; but the question remains, may not some combination 
 
 of such powers less than all also be entitled to this designation? 
 Must the word supreme be stressed to mean the highest and ulti- 
 mate power in all departments of political activity, or may it be 
 limited to the highest and ultimate authority confined to certain 
 political activities ? To ask the question differently, May not po- 
 litical power be supreme within its sphere of operation although it 
 is limited as to the matters within its rightful control ? 
 
 All are familiar with territorial limits to sovereign power. No 
 government has ever extended over the whole world. This terri- 
 torial limitation in no wise interferes with our notions of sover- 
 eignty. Why is limitation as to the subject matter over which 
 power may be exercised any more inconsistent with the idea of 
 sovereignty than limitations as to territory ? 
 
 The student of American institutions must practically famil- 
 iarize himself with the use of the term in this second meaning and 
 recognize the idea of divided or dual sovereignty. In all National 
 and interstate matters, the highest political power is vested in the 
 people of the United States, and they have final and supreme 
 political jurisdiction over these matters ; in all local and domestic 
 matters, the highest political power is vested in the people of the 
 respective States in severalty, and they have original, final, and 
 supreme political jurisdiction over these matters. These are prac- 
 tical and not merely speculative matters. They must be dealt 
 with by the different officers of government and by others inter- 
 ested in them, and convenience demands that some term be ap- 
 plied to them ; and the great majority of legal writers employ the 
 words sovereignty and sovereign as indicating final, and ultimate 
 political authority over particular subject matter, either possessed 
 originally or delegated irrevocably. This is but following the 
 ordinary method of giving. to one word more than one meaning, 
 both having much in common, yet differing in some essential 
 ideas. We will use the word in both meanings as occasion may 
 require, trusting to the context to indicate the exact sense in each 
 instance. 
 
 Investiture of Sovereignty. 
 
 In no one thing do political communities -differ more than in 
 the investiture of sovereignty. In theory, at least, they vary from 
 the absolute monarchy on the one hand, where all power is con-
 
 20 AMERICAN ELEMENTARY LAW. 
 
 centrated without check or limit in one will, to pure democracy 
 on the other, where all persons subject to the government are 
 theoretically supposed to have an equal voice in its organization 
 and maintenance. In practice, it is extremely doubtful whether 
 either of these extreme types has ever existed. The governments 
 actually existing in the civilized world to-day are those in which 
 sovereignty is vested in some number of persons more than one 
 and less than all. 
 
 It is said that in our American institutions the governments 
 are of the people, for the people and by the people. This is 
 not technically nor literally true. Sovereign power in democ- 
 racies is exercised principally in the right of suffrage or of vot- 
 ing. ' Political power in America in this setose is vested in and 
 exercised by decidedly less than half of the persons subject to its 
 operation, and these alone, in a technical or literal sense, can be 
 called sovereign. In actual practice, however, the protections 
 afforded and rules of conduct prescribed are largely the same 
 as if all persons had a voice in the government. This results 
 from the wide distribution of political power and the indissoluble 
 bonds that bind together those person who possess it and those 
 who do not, their kinship and community of interest and the 
 similarity of their views of life. 
 
 Governments. 
 
 In political communities in which sovereignty is vested in a 
 large number of persons it is impracticable for them to act di- 
 rectly and personally in the exercise of their political powers. 
 It becomes necessary, therefore, for them to devise and organize 
 some system of agencies through which these powers may be put 
 forth and these functions performed. Such a system of agencies 
 is called a government. 
 
 Sovereignty in the institution and perpetuation of government 
 acts directly. But the government having been organized, the 
 ordinary exercise of political power is delegated to and per- 
 formed by the system of agencies constituting the government. 
 
 The two fundamental purposes of sovereignty in organizing 
 and maintaining government are the perpetuation of the sover- 
 eign itself and the just and proper protection of the people sub- 
 ject thereto. In order, therefore, for the government to be ef- 
 fective and accomplish the end of its creation the sovereign or-
 
 POLITICAL POWER. 21 
 
 ganizing it must keep in mind and provide for the permanent 
 continuation of its own existence and the perpetuation of the 
 governmental agencies through which it is to act. We, therefore, 
 find in all the schemes of government worthy of the name there 
 are fixed plans and rules by which the fundamental, sovereign 
 powers shall be exercised directly by the sovereign so far as this 
 is essential to its own existence and well being, and also by which 
 the governmental agencies shall be perpetuated and the bodies 
 or persons through whom their functions are discharged shall be 
 renewed from time to time. 
 
 The powers and duties of sovereignty must also be distributed 
 among the different governmental agencies and the manner in 
 which these powers and functions are to be exercised must be 
 outlined. 
 
 In those communities in which sovereignty is lodged in the 
 people it is customary for the people, in creating their govern- 
 ments, to prescribe fixed limits upon the powers conferred upon 
 their agents and upon the exercise of such powers in many im- 
 portant respects. 
 
 The organization of a popular government, therefore, involves 
 the ordaining of fundamental laws of four different classes: 
 
 (1) Creative, or those which call the government into being. 
 
 (2) Perpetuative, or those which provide for the perpetual 
 existence of the sovereign and of the governmental agencies cre- 
 ated by it. 
 
 (3) Functional, or those which prescribe the powers and du- 
 ties of each and all of the governmental agencies. 
 
 (4) Restrictive, or those which limit the powers delegated and 
 the manner of their exercise. 
 
 As the function of sovereignty is to exercise political control 
 and the governmental agencies organized are to enable it to dis- 
 charge these functions, and as control involves the exercise of 
 will by the dominant party and its enunciation in rules of con- 
 duct for the subject party, the application of these rules to such 
 conduct or the judging of such conduct by such rules and the 
 enforcement or execution of the dominant will, we find that both 
 in sovereignty and in organized government there are three 
 phases of power. 
 
 From the point of view of sovereignty these three phases of 
 power are:
 
 22 AMERICAN ELEMENTARY LAW. 
 
 (1) The determinative; that is, the power to will and to de- 
 clare the result for the control of those subject to the sovereign. 
 
 (2) Applicatory; that is, the power to apply the rules thus 
 established to the conduct of those subject thereto and to an- 
 nounce the results. 
 
 (3) Executive; that is, the power to carry into effect the will 
 of the sovereign as set out in the announced rules of conduct. 
 
 In governments these three phases of power are called re- 
 spectively : 
 
 (1) The legislative power; that is, the power to make and de- 
 clare laws. 
 
 (2) The judicial power; that is, the power to investigate the 
 conduct of individuals and apply the law thereto. 
 
 (3) The executive power; that is, the power to carry out and 
 enforce the law. 
 
 By the exercise of these powers singly or in combination sover- 
 eignty through government maintains itself and discharges all 
 its functions. Among these functions, the fundamental one is 
 self-preservation. Hence governments must be so organized as 
 to enable them to successfully defend themselves against attacks 
 from outside enemies and also to suppress internal disorders. 
 
 Each sovereign should also carry on friendly intercourse with 
 other sovereigns. Provision must be made for this in establish- 
 ing government. 
 
 Sovereignty must also be prepared to make laws for the gov- 
 ernment of those subject to it and to apply and execute these 
 laws, hence, in creating and maintaining the agencies through 
 which it acts, must provide for this also. 
 
 If the territory occupied by the sovereign is large it is obvious 
 that the public good and convenience will be promoted by sub- 
 dividing this territory for certain governmental purposes and 
 localizing the agencies through which sovereignty acts. This 
 must also be provided for. The practical exercise of this power 
 of subdivision results in the creation of counties, cities and towns, 
 and various political districts of different kinds. Such subdi- 
 vision is not a process of political disintegration by whieh sov- 
 ereignty loses control and ultimate power over these several dis- 
 tricts. It is only a method by which the sovereign power of the 
 whole political community may be exercised and applied in the
 
 POLITICAL POWER. 23 
 
 different localities throughout the territory of the sovereign more 
 conveniently, cheaply, and effectively by the use of local agencies. 
 
 Raising Revenue. 
 
 Governments can not be maintained without expense, and hence 
 in their organization provision must be made for raising revenue. 
 Ordinarily, this is done by taxes of different kinds and by import 
 duties. In times of war, in extreme emergencies, other and more 
 stringent methods are employed. It is a recognized rule of gov- 
 ernment that taxes should be as nearly uniform as can practically 
 be made, but no perfectly just scheme of taxation has ever been 
 devised. All property within the State government, except such 
 as may constitute directly or indirectly agencies by which the 
 Federal government seeks to maintain itself, is subject to taxa- 
 tion. The right to levy import duties is practically limited to the 
 Federal government. 
 
 Eminent Domain. 
 
 As the needs and safety of the public are paramount to those of 
 any member or members of it, sovereignty always reserves the 
 right to reclaim and apply to public use such property belonging 
 to individuals as it, the sovereign, shall deem necessary to use for 
 the public safety or welfare, limiting the exercise of such power 
 by its governmental agencies by such safeguards as, in its judg- 
 ment, are- proper. This power of reclaiming private property 
 and applying it to public use is called the power of eminent 
 domain. 
 
 Police Power. 
 
 The sovereign is also charged with the duty of caring for the 
 public safety, health and morals, and always reserves to itself 
 the right so to control and regulate the conduct and affairs of in- 
 dividuals as shall be necessary or expedient to prevent any seri- 
 ous injury to the public in either of these regards. This authority 
 is called the police power. 
 
 It is necessarily vague and difficult of definition or even of 
 description. It can not be parted with even by agreement made 
 by the people themselves, as in a constitutional provision, or 
 through their agents, as by some public officer; but the power re- 
 mains in the sovereign and may always be exercised when the
 
 24 AMERICAN ELEMENTARY LAW. 
 
 public good requires. It is in the exercise of this power that we 
 find the best index of the advance in public intelligence and 
 morals. Practices which, at one time, may be deemed proper, by 
 reason of advance in the thought and conscience of the people, 
 may subsequently be recognized as improper and subversive of 
 the public good. In such instances antecedent permission of the 
 unrecognized evil or even actual participation in it will not pre- 
 vent or estop the sovereign from its suppression when the ad- 
 vanced public opinion and conscience shall so demand. 
 
 This is most forcibly illustrated in the Mississippi lottery case. 
 For a consideration paid, the lottery company had procured a 
 charter to maintain its lottery within the State of Mississippi for 
 an unlimited period of time, the permission being given by stat- 
 ute passed in pursuance to a constitutional provision expressly 
 authorizing it. The company organized and conducted its busi- 
 ness strictly within the terms of the agreement and paid to the 
 State all that it promised to pay. Subsequently, the Legislature 
 repealed the law authorizing the company, and declared the busi- 
 ness unlawful. The company resisted its disorganization, on the 
 ground that the previous constitutional action and statute consti- 
 tuting its charter were contracts within the protection of the 
 Constitution of the United States. The case went to the Supreme 
 Court of the United States, and it was there held that, although 
 these several acts possessed every essential of contract so far as 
 form, parties, meeting of the minds and consideration" went, still 
 the agreement was not a contract, because its subject matter was 
 immoral and that it was beyond the power of the people of the 
 State or the Legislature of the State to bind themselves to submit 
 to immoral practices and the perpetration of immoral schemes. 
 The company was disorganized and compelled to quit business.
 
 CHAPTER IL 
 
 ORGANIZATION OP GOVERNMENTS IN THE TERRITORY OF THE UNITED 
 
 STATES. 
 
 Political Organizations Considered Theoretically. 
 
 As preliminary to the discussion of this subject practically it 
 is essential that we get in mind at least three kinds of political 
 organizations : 
 
 (1) Unitary States. 
 
 (2) Confederations. 
 
 (3) Federal States. 
 
 Unitary States. 
 
 These are States in which all sovereign power is vested in one 
 body of people and exercised through one government. In them 
 there is no division of sovereign power or of the matters or sub- 
 jects over which political power is exercised. There is one sov- 
 ereign, and one government through which the one sovereign ex- 
 ercises all of its functions. In it the same jurisdiction applies to 
 national and domestic affairs. The same power that in time of 
 peace sustains and carries on diplomatic relations with other na- 
 tions, and which when occasion arises, wages war, extends to and 
 controls the most minute and least important of all the domestic 
 affairs of the community and the private rights of individuals. 
 The sovereign power in such a State is necessarily undelegated 
 and the government is necessarily single. 
 
 If in such a State sovereignty be vested in the people, the gov- 
 ernment thus organized is the simplest form of representative 
 government. There could be no opportunity for conflict between 
 different sovereignties as to which had jurisdiction over any mat- 
 ter. The one sovereign would reign supreme through the whole 
 sphere of political activity. 
 
 Perhaps the Republic of Texas was the most complete and most 
 nearly perfect example of such a State and such a govern- 
 ment that ever existed within the territory now covered by the 
 United States. In 1836 the people of Texas asserted their pri-
 
 26 AMERICAN ELEMENTARY LAW. 
 
 mary right of sovereignty and declared Texas a free and inde- 
 pendent nation, absolved from allegiance to any other political 
 power. They made this declaration good on the battlefield and 
 shortly thereafter adopted a written constitution creating the 
 government known as the Republic of Texas. This constitution 
 provided for and organized a government fully equipped to deal 
 with all political and legal questions from the least to the great- 
 est. A careful study of this constitution will give a thorough and 
 satisfactory idea of a Unitary State in all its various aspects. 
 
 Confederations. 
 
 Confederations are leagues for specified purposes entered 
 into by then existing sovereigns and governments. They 
 are in sharp contrast with Unitary States. They have no 
 inherent or primary power. They do not result from the action 
 of any one sovereign nor exist by reason of any single sovereign 
 will. They are created by the mutual agreement of a number of 
 sovereigns, each coming into the compact of its own will and each 
 having the power to withdraw therefrom at pleasure. The com- 
 pact in which the confederation originates is, to all intents and 
 purposes a treaty among sovereign contracting powers. Morally 
 it may be binding, but as each member to it is sovereign there is 
 no common arbiter who can enforce its terms or compel the ob- 
 servance of its obligations. 
 
 If the plan of confederation contemplates a tribunal for the ex- 
 ercise of so-called legislative powers such an assembly would be a 
 conclave of ambassadors from separate sovereignties whose action 
 must ultimately be referred to and accepted by such sovereigns, 
 rather than a body of legislators coming from and representing 
 the people of different portions of one sovereignty whose action 
 would be directly binding throughout the whole territory. 
 
 A confederation does not deal directly with the individual cit- 
 izens of the several States composing it. It has no direct power 
 over them. Its authority and action are limited to the States en- 
 tering into the league. It deals directly with them and its action 
 affects the individual only indirectly through the State to which 
 he owes allegiance. 
 
 Federal States. 
 
 A Federal State resembles each of the foregoing in some 
 respects and differs from each in other respects. Unlike a uni-
 
 ORGANIZATION OF GOVERNMENT. 27 
 
 tary State, its power is not primary and inherent, but is delegated 
 by and received from pre-existing unitary States. In this it re- 
 sembles a confederation. 
 
 It differs sharply from the confederation in the nature and ex- 
 tent of the giving over of the sovereign powers delegated to it. In 
 a Federal State this delegation of power is absolute and irrevoca- 
 ble. In a Confederation each member of the league has the power 
 to withdraw at will and in this way to rehabilitate itself in the 
 exercise of all of its powers of sovereignty. In a Federal State 
 this is not true. The delegation once made, the State making the 
 delegation is permanently divested of the sovereign powers dele- 
 gated by it and cannot thereafter reclaim them. The distinction 
 is this: In forming a Confederation, the several Unitary States 
 entering into the compact delegate to the Confederation, not their 
 sovereign powers or any of them, but simply the right to exercise 
 certain of these powers for specified purposes, while in creating a 
 Federal State, the several Unitary States give over to the Federal 
 State specified prerogatives and attributes of sovereignty, thus 
 passing, not simply the power of exercise, but the specified sover- 
 eign power itself. Strictly speaking, a Confederation has no sov- 
 ereign power. A Federal State does have sovereign power to 
 the extent, but only to the extent that such power has been dele- 
 gated and given over to it by the several Unitary States forming 
 the Federal Government. 
 
 In creating a Federal State or government, the Unitary States 
 entering into it do not part with all of their sovereign preroga- 
 tives but only with those given over to the Federal State by the 
 instrument creating it. As to all powers not so delegated the sev- 
 eral Unitary States retain unimpaired sovereignty unlimited in 
 any way except by the grant of power made to the Federal State 
 by the agreement of the several contracting sovereigns. 
 
 It is true that if any particular Federal State be granted large 
 sovereign prerogatives and shall become strong in the exercise of 
 its powers, it may thus acquire physical force superior to that of 
 any one of the States entering into its organization, and this being 
 true from the point of view of physical force, the Federal State 
 might be superior to, that is, stronger than, any one of its mem- 
 bers. But ethical notions have largely entered into the modern 
 idea of government and, these notions impose binding limitations 
 upon the exercise of physical force. So we must say that the
 
 28 AMERICAN ELEMENTARY LAW. 
 
 Federal State might become physically and practically able 
 to disregard the compact among the several States which gave it 
 being, but that morally it is bound not to do so, and legally should 
 not do so. 
 
 "Within the sphere of its political authority a Federal State acts 
 directly upon its citizens as individuals and not indirectly 
 through the States. This is in sharp contrast with the impotency 
 of a Confederation in this respect. 
 
 As a Federal State is invested with sovereign power as to cer- 
 tain matters, and is practically the chosen representative of all of 
 the several States creating it, the responsibility of preserving and 
 exercising these sovereign prerogatives rests upon it and it must 
 protect them to the extent of its ability from attacks ,by other 
 nations and against encroachments and withdrawals iby the sev- 
 eral States. By entering into being and entering upon thesis- 
 charge of the functions assigned it, it becomes the agent of all the 
 States constituting it to carry out the will of all as expressed and 
 embodied in the creative act, and ! it is its solemn duty to meet this 
 responsibility. 
 
 It is apparent that the conception of a Federal State carries 
 with it of necessity the idea of dual sovereignty, that is, of two 
 sovereign powers, each operating within • the same territory and 
 upon the same people but each restricted as to the political and 
 legal matters over which it has jurisdiction. To deny this con- 
 ception is to deny the possibility of the existence of a Federal 
 State. Where the line of separation between the two jurisdictions 
 shall be depends, necessarily, upon the original agreement of the 
 Unitary States entering into the Federation. So much of sover- 
 eign power and prerogative as is conferred upon the Federal 
 State is to be determined by a fair and honest interpretation of 
 the instrument evidencing the agreement by which it was created; 
 or, speaking in the terms of American law, by the proper con- 
 struction of the constitution creating the Federal Government. 
 
 Another important matter necessarily arising is who shall in- 
 terpret this agreement. This in turn depends upon the agree- 
 ment itself. 
 
 Government in the United States. 
 
 Passing from the theoretical to the practical we find that in the 
 United States the method of founding or organizing governments
 
 ORGANIZATION OF GOVERNMENT. 29 
 
 is by written instalments called constitutions. When each of the 
 original colonies was founded in America, it had some sort of a 
 written charter from the English King and parliament confer- 
 ring upon the founders such governmental authority as tbey saw 
 fit. These differed widely in their details and appreciably in 
 some matters of more importance ; but they had this in common : 
 they were written instruments emanating from the sovereign, 
 conferring political power and authorizing the maintenance 
 of government. 
 
 Under these several instruments the respective colonies began 
 their political life. Each was separate from each and all the 
 others, though they had much in common. The people sprang 
 from the same stock, came from the same country, spoke the same 
 tongue, and had years of common experience and tradition. Be- 
 sides they found in the new world the same enemies, difficulties, 
 and dangers. These gave them community of need and sympa- 
 thies, and as time passed on these devedoped into a community of 
 strength. When they found themselves confronted with a com- 
 mon oppressor, menacing them with a common danger, they made 
 common cause against him and overthrew him for the com- 
 mon good. 
 
 In declaring independence they acted together, yet each for 
 itself. The declaration is that "These United Colonies are, and 
 of a right ought to be, free and independent States; that they are 
 absolved from all allegiance to the British Crown and that 
 all political connection between the States and Great Britain is 
 and ought to be totally dissolved ; and that, as free and independ- 
 ent States, they have full power to levy war, conclude peace, con- 
 tract alliances, establish commerce, and do all other acts and 
 things which independent States may of right do." 
 
 Before the adoption of this declaration several of the States 
 changed their charters into constitutions, or rather, had substi- 
 tuted constitutions adopted by themselves for the charters there 
 tofore granted by the King and Parliament. The Second Conti 
 nental Congress advised such action and a large majority of the 
 States had either amended their charters radically so as to make 
 them practically constitutions or had substituted constitutions 
 for the charters before the adoption of the Articles of Confedera- 
 tion. It is thus apparent that historically, as well as naturally 
 and logically, the political autonomy and sovereignty of the States
 
 30 AMERICAN ELEMENTARY LAW. 
 
 existed and was recognized before any action was taken to bring 
 the States into any sort of political combination. 
 
 The Confederation. 
 
 The first effort at political union among the States resulted in 
 the adoption by the Second Continental Congress, on the 15th of 
 November, 1777, of the "Articles of Confederation and Perpetual 
 Union between the States. ' ' This congress recognized that it had 
 no power whatever to bind the several States by its action in the 
 premises. It therefore proposed that these Articles be adopted by 
 each of the States separately and should become operative only 
 after such adoption by all. The several States took up the matter 
 and passed favorably upon it from time to time. It was ratified by 
 the last State, Maryland, on March 1st, 1781. 
 
 The government resulting from this action, if the combination 
 was strong enough to be called a government, was in the nature 
 of a Confederation or League between independent sovereignties. 
 It lacked efficiency and was incapable of any decisive action. It 
 had not sufficient inherent strength to hold its several members 
 together. So long as the Revolutionary War continued the pres- 
 sure from external foes compelled the several States to observe in 
 some manner the action of the Confederation. As soon as the war 
 was over and this outside pressure thus withdrawn, the tendency 
 in each State was to emphasize and cultivate its local interests, 
 although this might involve injury to some other State or to the 
 country at large. It soon became apparent that the Confederation 
 was too weak to meet the demands of the situation. 
 
 United States. 
 
 This confederacy thus proving weak and unsatisfactory, the 
 perpetual union created by the articles referred to was super- 
 seded by the government under the present Constitution of the 
 United States. This Constitution was prepared and signed by the 
 delegates from twelve States on September 17, 1787, and submit- 
 ted to the several States for ratification, with the provision that 
 "the ratification of the conventions of nine States shall be suffi- 
 cient for the establishment of this Constitution between the States 
 so ratifying. ' ' This Constitution having been ratified by the re- 
 quisite number of States, went into effect on the first "Wednesday, 
 fourth day of March, 1789. By it the present government was 
 created and established.
 
 ORGANIZATION OF GOVERNMENT. 31 
 
 The purpose of its creation, as recited in the Preamble to the 
 Constitution, was "to form a more perfect union, establish jus- 
 tice, insure domestic tranquillity, provide for the common de- 
 fense, promote the general welfare, and secure the blessings of 
 liberty." 
 
 In order to accomplish these purposes, the framers of the Con- 
 stitution and those who adopted it committed to the government 
 thus created all national and interstate matters and conferred 
 upon it such powers as, in their judgment, were proper and neces- 
 sary to enable it effectively to meet the ends of its creation. All 
 powers not delegated expressly, or by proper implication from 
 those expressed and the purposes designed to be accomplished, 
 were reserved to the States by the people. The grant of these 
 powers to the Federal government was, ipso facto, a surrender of 
 them by the several States, so that we have a division of political 
 matters between the Federal and State governments. Neither 
 sovereign and neither government is unlimited. "We find, there- 
 fore, that the Constitution of the United States deals only with 
 national and interstate affairs, and the constitutions of the several 
 States only with internal or domestic affairs. 
 
 Constitutions. . 
 
 It is provided in the Federal Constitution that that Constitu- 
 tion, and treaties made in pursuance thereof, and acts of Congress 
 thereunder, are the supreme law of the land. The constitutions 
 of the several States, within their spheres are likewise supreme. 
 We therefore have this condition : that all persons, whether offi- 
 cers of the Federal or State governments, or private individuals, 
 are bound to obey and support the Constitution of the United 
 States and the treaties and acts of Congress that conform thereto, 
 and also all State laws within the sphere of State action. That in 
 case of conflict between the Constitution of any State or its stat- 
 utes and the Federal Constitution, the latter will prevail, and all 
 State action in conflict therewith is void. That the actions of all 
 State officers, executive, legislative, and judicial, must also con- 
 form to and be governed by the Constitution of their State ; and 
 if such action violates this Constitution, it is void and of no effect ; 
 and that the officers of each government are bound to respect and 
 uphold the constitutions and laws of both, within their respective 
 jurisdictions.
 
 32 AMERICAN ELEMENTARY LAW. 
 
 Constitutions, being the direct acts of sovereignty, control all 
 acts of legislation by the same government contrary thereto; and 
 the Constitution of the United States renders nugatory and void 
 any attempted State legislation repugnant to it. 
 
 Constitutions are delegations of power by the people ordaining 
 them to the several agencies created by them and to the several 
 officers provided for in them. This statement seems to be correct 
 although it contradicts expressions found in numerous books, to 
 the effect that, as to the legislative department, State constitu- 
 tions are limitations of power. The truth seems to be this : no one 
 is authorized to exercise legislative power except the sovereign it- 
 self, or those to whom it has delegated such authority ; but a gen- 
 eral grant of such power carries with it the right to legislate on 
 any subject matter within the jurisdiction of the sovereign mak- 
 ing the delegation; and if power to legislate on any particular 
 matter within such jurisdiction is desired to be withheld, this in- 
 tent must be specified in the constitution. 
 
 As the United States government has only such powers as are 
 conferred upon it by the Constitution, the subjects upon which 
 Congress may legislate must be set out in the Constitution 
 expressly or by proper implication. As the States have all pow- 
 ers not conferred upon the Federal government, a general grant 
 of legislative power to a State legislature carries with it the right 
 to legislate on all subjects within State jurisdiction not withheld 
 from them. 
 
 Construction of Constitutions. 
 
 As, in the American system, constitutions are the supreme law 
 of the land, binding on all governmental agencies created there- 
 by, all officers acting thereunder and upon private citizens, it 
 necessarily follows that most important questions as to the proper 
 construction and application of these constitutions in their practi- 
 cal working effect, and as to the respective powers and duties of 
 the several departments of government created by them, must 
 arise. In some instances it is expressly stated by whom the nature 
 and extent of the powers conferred are to be determined; but 
 these constitute the exceptions and not the rule. 
 
 In the actual administration of the government, the powers 
 conferred upon each department must necessarily be determined 
 primarily by it and its officers ; otherwise, they could take no ae-
 
 ORGANIZATION OP GOVERNMENT. 33 
 
 tion, as they would have no intelligent guide as to their powers 
 and duty. Serious questions often arise as to whether or not the 
 construction thus placed upon the instrument and upon statutes 
 passed under it is conclusive upon all other departments of gov- 
 ernment. The answer, in most instances, must be determined by 
 the general spirit and scope of duty imposed upon each depart- 
 ment and officer, rather than by technical rules or literal and ex- 
 press provisions. 
 
 These questions presented practically a new phase of govern- 
 mental or political difficulty. In England, there is no written 
 constitution and no division, express or exclusive, of the powers 
 of government among different departments. Parliament is prac- 
 tically supreme, and no question as to the constitutionality and 
 validity of its action could actually arise. If it did, it would be 
 decided by itself; for, under the English system, the House of 
 Lords is the court of last resort, so that Parliament has combined 
 within itself the ultimate legislative and judicial power. 
 
 Under the Constitution of the United States, the question, as 
 an original proposition, was not free from difficulty. All legisla- 
 tive power is granted to Congress, and it is required to observe 
 the Constitution in the exercise of this power. This necessarily 
 devolves upon Congress and its several members the responsibil- 
 ity of passing upon the constitutionalty of any proposed meas- 
 ure, and makes it the duty of each member to oppose and of the 
 collective body to reject it if it does not conform to the Federal 
 Constitution. No bill, therefore, can become a law unless, in the 
 judgment of Congress, it conforms to the Constitution. Again, 
 all bills, after being passed by Congress before becoming laws are 
 required to be presented to the President, as the chief executive, 
 and, in the event of his disapproval, he is authorized to veto the 
 proposed law ; so that, having passed the scrutiny of the legisla- 
 tive department, the bill is again submitted to the executive de- 
 partment before it can be promulgated as a law of the land. 
 
 After the measure has gone through both processes and is- de- 
 clared operative, rights, or supposed rights, arise under it and are 
 asserted in the courts; and the question then arises: Does the en- 
 actment conform to or contradict the Constitution? The courts 
 and judges are also sworn to observe the Constitution and enforce 
 it. Can this oath be kept if the judgment of the legislative and 
 executive departments was erroneous and that which they had 
 8
 
 34 AMERICAN ELEMENTARY LAW. 
 
 promulgated as in conformity with the Constitution is, in fact, 
 violative of it, unless the judiciary have the power to review the 
 question and determine for itself the constitutionality of the 
 measure? These questions necessarily arose early in the history 
 of the government. 
 
 One of the clearest and most interesting discussions of the sub- 
 ject and enunciations by the Supreme Court of the United States 
 with reference thereto is found in the case of Marbury v. Madison 
 (1 Cranch, 137, decided in 1803), in which the Court, speaking 
 through the Chief Justice, used the following language : 
 
 "The question, whether an act repugnant to the Constitution 
 can become the law of the land, is a question deeply interesting to 
 the United States ; but, happily, not of intricacy proportioned to 
 its interest. It seems only necessary to recognize certain prin- 
 ciples, supposed to have been long and well established, to decide 
 it. 
 
 That the people have an original right to establish, for their 
 future government, such principles as, in their opinion, shall 
 most conduce to their happiness, is the basis on which the whole 
 American fabric has been erected. The exercise of this original 
 right is a very great exertion ; nor can it, nor ought it, to be fre- 
 quently repeated. The principles, therefore, so established, are 
 deemed fundamental ; and, as the authority from which they pro- 
 ceed is supreme, and can seldom act, they are designed to be per- 
 manent. This original and supreme will organizes the govern- 
 ment, and assigns to different departments their respective pow- 
 ers. It may either stop here, or establish certain limits not to be 
 transcended by those departments. 
 
 The government of the United States is of the latter descrip- 
 tion. The powers of the legislature are defined and limited ; and 
 that those limits may not be mistaken, or forgotten, the Constitu- 
 tion is written. To what purpose are powers limited, and to what 
 purpose is that limitation committed to writing, if these limits 
 may, at any time, be passed by those intended to be restrained? 
 The distinction between a government of limited and unlimited 
 powers is abolished, if those limits do not confine the persons on 
 whom they are imposed, and if acts prohibited and acts allowed 
 are of equal obligation. It is a proposition too plain to be con- 
 tested, that the Constitution controls any legislative act repug-
 
 ORGANIZATION OP GOVERNMENT. 35 
 
 nant to it; or that the legislature may alter the Constitution by 
 an ordinary act. 
 
 Between these alternatives there is no middle ground. The 
 Constitution is either a paramount law, unchangeable by ordi- 
 nary means, or it is on a level with ordinary legislative acts, and, 
 like other acts, is alterable when the legislature shall please to 
 alter it. 
 
 If the former part of the alternative be true, then a legislative 
 act contrary to the Constitution is not law; if the latter part be 
 true, then written constitutions are absurd attempts, on the part 
 of the people, to limit a power in its own nature illimitable. 
 
 Certainly all those who have framed written constitutions con- 
 template them as forming the fundamental and paramount law of 
 the nation; and, consequently, the theory of every such govern- 
 ment must be that an act of the legislature, repugnant to the Con- 
 stitution, is void. 
 
 This theory is essentially attached to a written constitution, and 
 is consequently to be considered by this court as one of the funda- 
 mental principles of our society. It is not, therefore, to be lost 
 sight of in the further consideration of this subject. 
 
 If an act of the legislature, repugnant to the Constitution, is 
 void, does it, notwithstanding its invalidity, bind the courts and 
 oblige them to give it effect, Or, in other words, though it be not 
 law, does it constitute a rule as operative as if it was a law ? This 
 would be to overthrow, in fact, what was established in theory ; 
 and would seem, at first view, an absurdity too gross to be in- 
 sisted upon. It shall, however, receive a more attentive consider- 
 ation. 
 
 It is emphatically the province and duty of the judicial depart- 
 ment to say what the law is. Those who apply the rule to partic- 
 ular cases must, of necessity, expound and interpret that rule. If 
 two laws conflict with each other, the courts must decide on the 
 operation of each. 
 
 So, if a law be in opposition to the Constitution, if both the law 
 and the Constitution apply to a particular case so that the court 
 must decide that ease conformably to the law, disregarding the 
 Constitution, or conformably to the Constitution, disregarding 
 the law, the court must determine which of these conflicting rules 
 governs the case. This is of very essence of judicial duty.
 
 36 AMERICAN ELEMENTARY LAW. 
 
 If, then, the courts are to regard the Constitution, and the Con- 
 stitution is superior to any ordinary act of the legislature, the con- 
 stitution, and not such ordinary act, must govern the case to 
 which they both apply. 
 
 Those, then, who controvert the principle that the Constitution 
 is to be considered, in court, as a paramount law, are reduced to 
 the necessity of maintaining that courts must close their eyes on 
 the Constitution, and see only the law. 
 
 This doctrine would subvert the very foundation of all written 
 constitutions. It would declare that an act which, according to 
 the principles and theory of our government, is entirely void, is 
 yet, in practice, completely obligatory. It would declare that, if 
 the legislature shall do what is expressly forbidden, such act, 
 notwithstanding such express prohibition, is in reality effectual. 
 It would be giving to the legislature a practical and real omnipo- 
 tence, with the same breath which professes to restrict their pow- 
 ers within narrow limits. It is prescribing limits, and declaring 
 that those limits may be passed at pleasure. 
 
 That it thus reduces to nothing what we have deemed the great- 
 est improvement on political institutions, a written constitution, 
 would of itself be sufficient, in America, where written constitu- 
 tions have been viewed with so much reverence, for rejecting the 
 construction. But the peculiar expressions of the Constitution of 
 the United States furnish additional arguments in favor of its re- 
 jection. 
 
 The judicial power of the United States is extended to all cases 
 arising under the Constitution. 
 
 Could it be the intention of those who gave this power to say 
 that, in using it, the Constitution should not be looked into? 
 That a ease arising under the Constitution should be decided 
 without examining the instrument under which it arises? 
 
 This is too extravagent to be maintained. 
 
 In some cases, then, the Constitution must be looked into by the 
 judges. And, if they can open it at all, what part of it are they 
 forbidden to read or to obey ? 
 
 There are many other parts of the Constitution which serve to 
 illustrate this subject. 
 
 It is declared that "no tax or duty shall be laid on articles ex- 
 ported from any State." Suppose a duty on the export of cot-
 
 ORGANIZATION OF GOVERNMENT. 37 
 
 ton, of tobacco, or of flour; and a suit instituted to recover it. 
 Ought judgment to be rendered in such a case? Ought the judges 
 to close their eyes on the Constitution, and only see the law? 
 
 The Constitution declares "that no bill of attainder or ex post 
 facto law shall be passed." 
 
 If, however, such a bill should be passed, and a person should be 
 prosecuted under it, must the court condemn to death those vic- 
 tims whom the Constitution endeavors to preserve ? 
 
 "No person," says the Constitution, "shall be convicted of 
 treason unless on the testimony of two witnesses to the same overt 
 act, or on confession in open court." 
 
 Here the language of the Constitution is addressed especially 
 to the courts. It prescribes, directly for them, a rule of evidence 
 not to be departed from. If the legislature should change that 
 rule, and declare one witness, or a confession out of court, suffi- 
 eient for conviction, must . the constitutional principle yield to 
 the legislative act ? 
 
 From these, and many other selections which might be made, it 
 is apparent that the framers of the Constitution contemplated 
 that instrument as a rule for the government of courts as well as 
 of the legislature. 
 
 Why, otherwise, does it direct the judges to take an oath to sup- 
 port it? This oath certainly applies in an especial manner 
 to their conduct in their official character. How immoral to im- 
 pose it on them, if they were to be used as the instruments, and 
 the knowing instruments, for violating what they were sworn to 
 support ? 
 
 The oath of office, too, imposed by the legislature, is completely 
 demonstrative of the legislative opinion on this subject. It is in 
 these words: "I do solemnly swear that I will administer justice 
 without respect to persons, and do equal right to the poor and to 
 the rich ; and that I will faithfully and impartially discharge all 
 the duties incumbent on me as * * * , according to the best of 
 my abilities and understanding, agreeably to the Constitution and 
 laws of the United States." 
 
 "Why does a judge swear to discharge his duties agreeably to 
 the Constitution of the United States, if that Constitution forms 
 no rule for his government ; if it is closed upon him, and can not 
 be inspected by him ? 
 
 If such be the real state of things, this is worse than solemn
 
 38 AMERICAN ELEMENTARY LAW. 
 
 mockery. To prescribe, or to take this oath, becomes equally a 
 erime. 
 
 It is also not entirely unworthy of observation that, in declar- 
 ing what shall be the supreme law of the land, the Constitution is 
 itself first mentioned ; and not the laws of the United States gen- 
 erally, but those only which shall be made in pursuance of the 
 Constitution, have that rank. 
 
 Thus the particular phraseology of the Constitution of the 
 United States confirms and strengthens the principle, supposed to 
 be essential to all written constitutions, that a law repugnant to 
 the Constitution is void ; and that courts, as well as other depart- 
 ments, are bound by that instrument." 
 
 The doctrine thus announced has never since been seriously 
 questioned with regard to the Federal Supreme Court and its 
 power to pacs on the acts of Congress. The duty and power, how- 
 ever, are not limited to that court. They extend to every court. 
 State or Federal and to the State constitutions and State statutes. 
 All courts are alike charged with the duty of enforcing the law 
 within the limits of the jurisdiction respectively delegated to 
 them, and in doing so it is necessary that they shall determine 
 what the law is and distinguish between it and its semblance, how- 
 ever plausible and pretentious may be the claims of the latter. 
 Hence, every judge or court before whom a case is tried must hear 
 and determine questions affecting the validity of such acts of 
 Congress or of State legislatures as are directly and pertinently 
 involved in the case before it. If the question be one arising upon 
 the Constitution of the United States, and rights claimed under 
 that instrument are denied, the point can be carried up by proper 
 appellate proceeding to the Supreme Court of the United States 
 for its ultimate decision ; or, if the point pertain to the State Con- 
 stitution, it can be carried to the highest State Court having ju- 
 risdiction over the questions involved ; but in this process of exer- 
 cising original and appellate jurisdiction each court before whom 
 the question is pending must, in determining its own course of 
 conduct, pass on and adjudicate whether or not the statute is con- 
 stitutional. This practically puts in the power of the judiciary 
 the right of determining ultimately the proper construction of 
 the Constitution, and the validity of all legislative action taken 
 or attempted to be taken thereunder. When the doctrine was 
 first announced, serious apprehensions were entertained in some
 
 ORGANIZATION OP GOVERNMENT. 39 
 
 quarters that it would give to the judicial department of the gov- 
 ernment undue prominence and power and thus, for political con- 
 siderations, the policy was by some persons regarded as bad. As 
 a legal proposition, however, it has remained impregnable, and 
 is now a settled rule of law, if precedent can settle a rule of law, 
 in our system of government. 
 
 Application of the Doctrine. 
 
 While the general doctrines above announced remain unques- 
 tioned, there are still points of difficulty frequently arising as to 
 their application. It not infrequently occurs that the power of 
 the legislative or executive department of the government to act 
 upon certain matters or in a certain way is made dependent upon 
 the existence of specified facts. In such cases, should the power 
 of the judiciary extend to a revision of the finding by the legisla- 
 tive or executive department as to the existence of such facts and 
 consequent authority by such department to act 1 The question is 
 important, and the answer is not uniform. 
 
 As a typical case, we may take constitutional provisions deny- 
 ing to the legislature the right to pass special laws except after 
 notice has been given in a designated way and for a designated 
 time. Suppose the legislature, acting under such a constitution, 
 shall pass a special act without the notice having, in fact, been 
 given as required in the constitutional provision. The act, 
 in every other respect, is passed formally and regularly, is ap- 
 proved by the executive, and published as law. Can the courts go 
 behind this record, inquire into the facts as to notice, ascertair 
 that no notice had been given, and thus declare that tht 
 attempted act was passed without authority and is, therefore, 
 void? There is a difference in the decisions, but the decided 
 weight of authority answers in the negative. 
 
 The doctrine is this: If the action taken by the legislative de- 
 partment is such that it might, under the existence of designated 
 facts, lawfully have been taken, the fact that the legislature has 
 so acted is a conclusive adjudication that the facts prerequisite 
 to the exercise of its power were inquired into and found to exist, 
 and no other department of the government can reopen the ques- 
 tion and set up its judgment or conclusion in opposition to that 
 of the legislature. The distinction between this question and an 
 inquiry into the constitutionality of the subject matter of an act 
 lies in this: If the subject matter of a proposed enactment be con-
 
 40 AMERICAN ELEMENTARY LAW. 
 
 trary to the constitution, then under no state of facts could the 
 legislature enact it into law ; there is an entire absence of power, 
 and nothing short of an amendment to the constitution could 
 Confer it. Whereas, in the other case, the power to do the act 
 is conferred, but its exercise is made to depend upon certain con- 
 ditions of fact, and the determination of these conditions, being 
 necessarily involved in the exercise of the power, a mistake in the 
 determination would be, not the usurpation of undelegated author- 
 ity, but a mistake in the exercise of constitutional right. If this be 
 the true conception of the subject, it is but another application of 
 the ever-recognized distinction between the attempted exercise 
 of the power not possessed, which is always void, and the mis- 
 taken or erroneous exercise of power actually conferred, which is 
 never void, though in many instances it may be avoided by re- 
 visory proceedings. 
 
 Minor Political Organizations. 
 
 In governments charged with the regulation of internal affairs, 
 it is essential that the territory under the general jurisdiction be 
 subdivided into smaller districts or portions, so as to give better 
 opportunity to attend, first to matters of general concern, and 
 second to local needs and interests. 
 
 As the United States Government deals only with national mat- 
 ters it is not necessary for it to have any organized political sub- 
 divisions. Its territory is divided into judicial and collection 
 districts, but these are mere matters of convenience in adminis- 
 tering the law. 
 
 Subdivisions of the State. 
 
 The State is the political unit in American institutions. Com- 
 bined under the Federal Constitution they form the United 
 States; divided they give the various minor political subdivi- 
 sions. These are known as districts, counties or parishes, pre- 
 cincts, townships, cities and towns, and possibly by other names. 
 
 Those designated as districts are usually very loose in their 
 organization, and are created principally for convenience in 
 dividing the people for election, taxation and educational and 
 judicial purposes. They rarely have any governmental agencies 
 or machinery provided specially for them except returning offi- 
 cers of election, school trustees, and other similar boards. The
 
 ORGANIZATION OP GOVERNMENT. 41 
 
 creation of these districts is generaly by statute, and the extent 
 and nature of their organization and their powers and duties are 
 set out in the creative acts. 
 
 Counties. 
 
 The most important among the minor divisions are counties. 
 These are political subdivisions of the State occupying designated 
 portions of the territory of the State. They possess, to a limited 
 degree, political autonomy. Each has a designated place within 
 its territory known as the county seat, or county site, at which 
 all public business pertaining to the county is attended to, where 
 all county officers are required to keep their offices, and where the 
 more important courts are held. They have a number of local 
 officers, consisting usually of a judge, who presides over the local 
 county court; a sheriff, who is the chief executive officer of the 
 county; a treasurer, a clerk, various taxing officers, school offi- 
 cers, etc., who are usually elected by the qualified voters living 
 in the county. 
 
 Counties are usually the units by which liability to jury serv- 
 ice is determined and by which venue in more important courts 
 is fixed. That is, in determining in what court one may be sued, 
 the court is always designated and frequently selected by refer- 
 ence to county boundaries; and liability to jury service is deter- 
 mined in the same way, no one in a State court being subject to 
 jury service outside the county of his residence. 
 
 The county financial and business matters are conducted by 
 local boards or officers designed differently in different States. 
 The principal business of these boards is to regulate taxation, 
 establish and maintain public highways, court houses and jails, 
 provide for the care of the poor and take charge of and manage 
 all property belonging to their respective counties. In this way, 
 the general sovereignty of the State distributes its duties and 
 brings the actual control of local affairs and the operations of 
 the government with reference to them close to the whole people, 
 thus localizing and lessening the burdens of many public duties 
 and facilitating the actual administration of public affairs. 
 
 From these considerations, counties are regarded as both local 
 and general in their nature and functions; but as many of the 
 duties discharged by them pertain directly to and very greatly
 
 42 AMERICAN ELEMENTARY LAW. 
 
 affect the general interests of the State and the administration 
 of the general law, they are usually considered as maintained for 
 general governmental purposes rather than for local benefit, and 
 consequently are regarded as very largely, if not entirely, under 
 the direct control of the State. 
 
 Counties are usually, if not always, organized under general 
 laws which confer all their powers and rights and fix their duties. 
 These general rules are rarely changed by any special law or 
 legislative action as to particular counties, so that the legal status 
 of all the counties in a State is ordinarily the same. Sometimes, 
 under peculiar conditions, some special enactment will be passed 
 changing some of the general provisions of the law or, it may 
 be, limiting their operation as to some designated county for a 
 limited time for limited purposes. These special actions, how- 
 ever, are exceptional. 
 
 Counties are regarded as public corporations having legal exist- 
 ence and as possessing legal rights and owing limited legal duties. 
 These rights and duties are of two general kinds, governmental 
 and business. As to the first, counties are not subject to suit at 
 the hands of individuals unless they have assumed or undertaken 
 obligation by legally authorized contract. As to their business 
 functions, there is a slightly larger range of liability, but even in 
 these regards their legal obligation to individuals is very limited. 
 
 Counties may acquire, own and dispose of property and make 
 contracts to enable them to discharge their public duties and may 
 maintain suits in their own name against any one violating these 
 rights, or any of them. Their capacity to sue as plaintiffs is not 
 limited, but is the same as that of an ordinary individual. On the 
 other hand, their liability to suit is limited. Wherever they are 
 authorized to make contracts and do so, and then violate the con- 
 tract, they may be sued. They are not liable to suit for torts ex- 
 cept in those cases in which some constitutional or statutory pro- 
 vision creates such liability; that is, at common law the county 
 can not be sued for a tort, and if such suit can be maintained, it 
 must be by reason of some written law. 
 
 Counties are created by the state and have no inherent or 
 original powers or prerogatives. All their powers are derived 
 from the state in which they exist and are subject to be taken 
 from them whenever the state so desires. 
 
 Counties are in turn divided into subdivisions called sometimes
 
 ORGANIZATION OP GOVERNMENT. 43 
 
 precincts, sometimes townships. These are made for the still 
 greater convenience of the people in matters still more local. 
 The New England township is said to he the best example of local 
 self-government that is to be found. As such direct representa- 
 tive of sovereignty, the sovereign's immunity to suit, except by 
 its own consent, was, in a large measure, accorded to the town- 
 ship in the beginning of our government, and from this, as an 
 historical basis, has grown up to a large extent the doctrine of 
 non-liability of counties for conduct otherwise tortious. 
 
 Cities and Towns. 
 
 Experience demonstrates that, for both business and social pur- 
 poses, people will congregate in large numbers within small 
 spaces. This massing of population creates the necessity for bet- 
 ter and special means of protecting private rights and supplying 
 public needs. Better highways, better sanitation and better pro- 
 tection against fire and against crime, larger and better facilities 
 for water and light and transportation, and many other matters 
 equally important and yet local in their nature, require additional 
 organization of the community in which these needs exist. Such 
 organization is secured by the incorporation of these thickly- 
 settled districts into new political units, known as cities or towns. 
 
 These corporations, while public and governmental, are still 
 more for local than for general purposes, and tend more to the 
 special convenience, advantage and protection of the inhabitants 
 of the designated territory than of the State at large, and the 
 powers conferred and duties and liabilities imposed are made to 
 correspond to these conditions. As a rule, but a small share of 
 the general powers or of the general duties of government are 
 conferred on these local corporations, and as those which are 
 conferred are for local benefit and the advantages accruing are 
 limited in a great measure to residents in the particular territory, 
 immunity from responsibility is not recognized in behalf of the 
 corporation, and it will, ordinarily, be held liable on all author- 
 ized contracts and on all torts committed in carrying on its local 
 concerns, in the same way and to the same extent that a private 
 corporation would be. 
 
 They are, however, not responsible for wrongs committed by 
 their officers in the exercise of their general governmental func- 
 tions. As to those they are immune from suit.
 
 44 AMERICAN ELEMENTARY LAW. 
 
 There are two general methods of creating such corporations: 
 First, by the passage of general laws providing for their creation, 
 specifying how the corporation shall be effected, the powers to be 
 possessed by it and the duties and liabilities to which it is subject, 
 and authorizing the inhabitants of any district or locality having 
 the legal requirements as set out in the act to combine themselves 
 into such corporation. The second method is by direct or special 
 act of the legislature creating the particular town or city. In 
 whichever way any town or city may be created, it has such pow- 
 ers and is subject to such responsibilities as its creative act or 
 charter, whether general or special, interpreted and construed ac- 
 cording to legal rules, shall specify. 
 
 The scheme of government for such corporations is usually local 
 the officers consisting generally of a chief executive, known as a 
 mayor, taxing officers, officers charged with the duty of keeping 
 public records, and officers charged with the duty of keeping pub- 
 lic funds, a city board, known as councilmen or aldermen, some 
 officer or officers having local judicial authority, and police officers 
 and commissioners for various purposes, but whose duties usually 
 relate to some public utility. The general legislative power of the 
 corporation, so far as it is invested with such power, is conferred 
 upon its board of aldermen or council. These powers are, of ' 
 course, local, and are supplementary to the general regulations or 
 laws of the State. The judicial officers of the city are usually re- 
 stricted in their jurisdiction to the enforcement of city ordinances 
 and State laws against petty misdemeanors. 
 
 The selection of the several officers is usually entrusted to the 
 people of the city directly, by election, or indirectly, by the elec- 
 tion of certain of their officers and the appointment by them of 
 the remainder. Whether this right of local self-government may 
 be regulated, modified or taken away by the legislature of the 
 State, either in original acts of incorporation or in amendments to 
 charters and, if so, in what way and to what extent, are quite in- 
 teresting and unsettled questions. The courts of different States 
 have differed with regard to them. In Texas, the question has 
 recently been raised as to the power of the legislature to au- 
 thorize the governor to appoint commissioners to exercise many 
 of the most important powers of the government of the city of 
 Galveston. The two courts of last resort have come to directly 
 opposite conclusions on the subject; the Court of Criminal Ap-
 
 ORGANIZATION OF GOVERNMENT. 45 
 
 peals holding that criminal ordinances passed by such commis- 
 sioners or by a board or council of which they were members, were 
 void, and the Supreme Court holding that civil ordinances, or 
 action taken in civil matters, by the same board with the same 
 constituents, are valid* (See Ex Parte Lewis, Court of Criminal 
 Appeals 73 S. "W. 811, and Brown et al. V. City of Galveston, Su- 
 preme Court, 75 S. W. 488.)
 
 PART II. 
 
 THE UNITED STATES AND STATE GOVERNMENTS AND 
 THEIR RELATIONS TO EACH OTHER. - 
 
 CHAPTER I. 
 
 THE UNITED STATES GOVERNMENT. 
 
 Having considered political power in the abstract and Ameri- 
 can governments in a general way, we come now to deal with 
 them in the concrete, as manifested and organized in the govern- 
 ment of the United States and the several States of the Union. 
 As the latter are so numerous, it is impracticable and would only 
 lead to confusion to attempt to take up each and consider it in all 
 its details. We will therefore present those matters which are 
 common to them all, seeking thus to show the genius and spirit of 
 our State institutions. 
 
 COMPARISONS OP THE TWO GOVERNMENTS. 
 
 The people of the several States of the Union live under two 
 governments, each having jurisdiction over certain matters as to 
 which it is supreme. Each is based upon the consent of those gov- 
 erned and is republican in form. 
 
 The State governments are formed by the people of the respec- 
 tive States, acting directly. The Federal government was formed 
 by the people of the United States, acting indirectly through their 
 State organizations. 
 
 The States, being formed by the direct act of the people, are the 
 direct and primary representatives of sovereignty and have all the 
 political power not expressly or impliedly conferred upon the 
 Federal government. The Federal government, being a govern- 
 ment of delegated authority, has no power or jurisdiction except 
 that conferred by the Constitution creating it.
 
 THE UNITED STATES GOVERNMENT. 47 
 
 The State governments are supreme in their domestic affairs, 
 but they have surrendered their control over national and interna- 
 tional affairs. The Federal government is supreme in national 
 and international, and in most interstate affairs, but has no juris- 
 diction over the domestic or internal affairs of the State. 
 
 The several States were originally unitary States. They dele- 
 gated certain of their sovereign prerogatives to the United States. 
 It is now settled that this delegation was irrevocable and the 
 powers thus conferred cannot be withdrawn. The United States 
 Government is, therefore, federal and not confederate in its na- 
 ture. The result is "An indissoluble Union of indestructible 
 States." 
 
 The systems of agencies which constitute these two govern- 
 ments are separate and distinct. In most of the States, the 
 same persons are forbidden to hold office under the two Govern- 
 ments at the same time. The general scheme of the two is the 
 same. Each is based upon the idea of the sovereignty of the 
 people; each has a written constitution; and each has division of 
 the powers of government into legislative, judicial, and execu- 
 tive, and provides for the exercise of these several powers by sep- 
 arate bodies of officers; each is largely based upon the English 
 Common Law ideas and conceptions of law and legal rights and 
 duties. The constitution of neither can be understood except by 
 resorting to the common law as a means of interpretation and 
 construction. 
 
 In matters of legislation, the powers of the two governments are 
 usually exclusive, though in a small and diminishing class of cases 
 they are concurrent. 
 
 In the matter of judicial enforcement of rights under the laws 
 of either, their powers are frequently concurrent, and in all cases 
 the judicial officers of each must observe and enforce the laws of 
 both so far as these laws affect substantive rights. 
 
 "When a particular subject matter is of such nature that its reg- 
 ulation will affect both National and State matters, the govern- 
 ment having direct and immediate jurisdiction is authorized to 
 regulate it, and the indirect consequences must be borne by the 
 other. Thus the chartering of railroads in the several States is 
 within the jurisdiction of the several States, although the exist- 
 ence or non-existence of such roads of necessity affects interstate 
 commerce ; on the other hand, fixing freight charges upon inter-
 
 48 AMERICAN ELEMENTARY LAW. 
 
 state commerce is in the jurisdiction of the Federal government 
 although these charges affect very seriously the maintenance of 
 the railroads as domestic carriers. 
 
 Suffrage and Its Regulation. 
 
 As we have seen, in our American institutions sovereignty in- 
 heres in the people collectively and not in each citizen individu- 
 ally. The exercise of sovereign power is necessarily in the control 
 of the sovereign. Voting is an exercise of sovereign power. Suf- 
 frage, therefore, is not a right inherent in the individual citizen, 
 but is in the body of citizens collectively, consequently no one has 
 a right to vote except those upon whom the sovereign power con- 
 fers the privilege. It is for this reason that the people in their con- 
 stitutions may prescribe qualifications without which persons can- 
 not vote legally, and may also, by constitutional provision, author- 
 ize the Legislature to prescribe such qualifications. The only limi- 
 tation on this power is that contained in the Fourteenth Amend- 
 ment to the Constitution of the United States forbidding the dis- 
 franchisement of any person on account of race, color, or previous 
 condition of servitude. Subject to only this limitation, the people 
 of each State determine who may vote therein. 
 
 Under the Constitution of the United States the people of the 
 several States determine also who, within their respective juris- 
 dictions, shall vote for Federal officers. This, of course, is sub- 
 ject to the limitations imposed by the Fourteenth Amendment 
 just referred to. No Federal officers, except members of the 
 House of Representatives in Congress are elected by a direct vote 
 of the people. The President and Vice-President of the United 
 States are elected indirectly by the people by means of an electoral 
 college in each State. The Federal Constitution provides that all 
 persons entitled to vote for members of the largest house of the 
 State Legislature in each State may vote for representatives in 
 Congress and for members of the electoral college in that State. 
 United States Senators are elected by the Legislatures of the re- 
 spective States, the members of which are, of course, elected by the 
 qualified voters from the respective districts in each State. All 
 other Federal officers are appointed. Thus it is seen that each 
 State, by the exercise of its sovereign power, limited only by the 
 Fourteenth Amendment to the Constitution, determines who, 
 within its borders, is qualified to vote for State and Federal offi-
 
 THE UNITED STATES GOVERNMENT. 49 
 
 cers. The State also fixes the qualifications of electors for local 
 officers. 
 
 The right to vote is limited in all the States, the disfranchised 
 classes differing somewhat in each State from every other. The 
 rule is that adult males, that is, males over 21 years of age, not 
 subject to disqualification by reason of unsoundness of mind or 
 previous conviction of crime, are permitted to vote. In some 
 States there are property qualifications, in some educational, and 
 in some a combination of the two. In others, the payment of des- 
 ignated taxes is a condition precedent to the right to vote. In a 
 few States, women possessing the qualifications prescribed for 
 men are permitted to vote. As before stated, the enfranchised 
 classes are fewer in the aggregate than the disfranchised, so that 
 the government is really entrusted to a minority of those who are 
 subject to its laws. 
 
 LEGISLATIVE DEPARTMENT. 
 
 The legislative powers of the United States government are 
 vested in the Congress of the United States. This body consists 
 of two branches, the Senate and the House of Representatives. 
 The Senate is composed of two senators from each State, elected 
 by the legislature thereof. Each senator has one vote, and holds 
 office for six years. Vacancies occurring during recess of the leg- 
 islature are filled by appointment by the governor of the State. 
 Such appointee holds until the legislature at its next session shall 
 choose his successor and such successor shall qualify. To be 
 eligible to the Senate, one must be at least 30 years of age, an in- 
 habitant of the State by which he is elected, and must have been a 
 citizen of the United States for nine years. The time and manner 
 of electing senators is primarily with the legislatures of the sev- 
 eral States, though Congress has the power of changing these reg- 
 ulations, except as to the place of holding the election. 
 
 The number of the senators is the same from each State, with- 
 out reference to its territorial extent, the number of its inhabit- 
 ants, its wealth, or other considerations. This is a recognition of 
 the political autonomy and local sovereignty of the several States. 
 On the floor of the United States Senate, each senator is the equal 
 of every other, and the State which he represents has equal voice 
 and right in that body. As no bill can become a law without the 
 4
 
 50 AMERICAN ELEMENTARY LAW. 
 
 concurrence of the Senate, the power of each State and the pro- 
 tection thus afforded to it is great. 
 
 The Senate, when in session, is presided over by the Vice-Presi- 
 dent of the United States, and when, by reason of the death of the 
 President or Vice-President there is no Vice-President, the body 
 provides its own presiding officer by election from among its own 
 members. The Vice-President has no vote, except in case of a tie ; 
 but the member elected president pro tempore does not lose his 
 membership in the body, and is allowed to vote upon all questions. 
 
 On the other hand, the members of the House of Representa- 
 tives are chosen by popular election by the qualified voters in each 
 State. These members are apportioned among the States accord- 
 ing to the number of their inhabitants, ascertained by the last pre- 
 ceding United States census, and excluding Indians not taxed 
 provided that each State shall have at least one representative. 
 The basis of representation is, however, subject to be cut down in 
 any State in which the male inhabitants, citizens of the United 
 States and 21 years of age, are disfranchised for any cause except 
 for crime or participating in rebellion, in such proportion as the 
 number thus disfranchised bears to the whole number. 
 
 Members of the House hold office for two years. If a vacancy 
 occurs at any time, it is filled by special election ordered by the 
 governor of the State. 
 
 In providing for the election of representatives, the legislature 
 of the State may divide the State into separate districts, and 
 may have a representative from each district elected by the voters 
 thereof, or it may have them all elected by the voters of the State 
 at large ; or they may divide the State into a number of districts, 
 less than the whole number of representatives to be elected within 
 the State, and have one elected from each of the districts and the 
 others from the State at large. 
 
 By making this branch of Congress elective and apportioning its 
 members according to population and limiting the term of office to 
 two years, it was designed to give to the people direct and respon- 
 sible representation, and as the concurrence of the houses is essen- 
 tial to the passage of a bill, laws contrary to current popular sen- 
 timent can not easily be enacted. To be eligible as a representa- 
 tive, one must be 25 years of age and an inhabitant of the State 
 in which he is chosen, and must have been a citizen of the United
 
 THE UNITED STATES GOVERNMENT. 51 
 
 States for seven years. The House chooses its own presiding offi- 
 cer, called the Speaker of the House. He has a vote upon all 
 questions. 
 
 Each house is the exclusive judge of the qualifications of its 
 members, makes its own rules of procedure, and may, by a two- 
 thirds vote, expel a member. A majority of the members of each 
 house is a quorum. Journals of their proceedings are required to 
 be kept. All bills raising revenue must originate in the House, 
 but the Senate may propose or concur in amendments to such 
 bills. Both houses must concur in the passage of a bill before it 
 becomes a law. 
 
 Bills which have passed both houses are presented to the Presi- 
 dent for his action. If he approves a bill he signs it and files it 
 with the Secretary of State ; if he disapproves it, he returns it to 
 the house in which it originated with his objections ; it may then 
 be reconsidered, and if it shall be passed by two-thirds vote in each 
 house, it becomes a law, notwithstanding the President's objec- 
 tion. Failure by the President to act upon a bill in ten days is 
 equivalent to approval by him. This power in the President to 
 disapprove of proposed legislation is called the veto power. It 
 extends not only to bills or proposed statutes, but also to every 
 order, resolution, or vote of Congress which requires the concur- 
 rence of both houses. 
 
 This power was used rather sparingly in the early history of 
 the government, but its use has grown more frequent in later 
 years. 
 
 Express Powers of Congress. 
 
 1. To lay and collect taxes, duties, imposts and excises ; to pay 
 the debts and provide for the common defense and general wel- 
 fare of the United States; but all duties, imposts, and excises 
 shall be uniform throughout the United States and direct taxes 
 must be apportioned among the States in accordance with popu- 
 lation. 
 
 2. To borrow money on the credit of the United States. 
 
 3. To regulate commerce with foreign nations, and among the 
 several States, and with the Indian tribes. 
 
 4. To establish a uniform rule of naturalization, and uniform 
 laws on the subject of bankruptcies throughout the United States
 
 52 AMERICAN ELEMENTARY LAW. 
 
 5. To coin money, regulate the value thereof, and of foreign 
 coin, and fix the standard of weights and measures. 
 
 6. To provide for the punishment of counterfeiting the securi- 
 ties and current coin of the United States. 
 
 7. To establish postoffices and post roads. 
 
 8. To promote the progress of science and the useful arts, by 
 securing, for limited times, to authors and inventors the exclusive 
 right to their respective writings and discoveries. 
 
 9. To constitute tribunals inferior to the Supreme Court. 
 
 10. To define and punish piracies and felonies committed on 
 the high seas, and offenses against the law of nations. 
 
 11. To declare war, grant letters of marque and reprisal, and 
 make rules concerning captures on land and water. 
 
 12. To raise and support armies, but no appropriation of money 
 to that use shall be for a longer term than two years. 
 
 13. To provide and maintain a navy. 
 
 14. To make rules for the government and regulation of the 
 land and naval forces. 
 
 15. To provide for calling forth the militia to execute the laws 
 of the Union, suppress insurrections and repel invasions. 
 
 16. To provide for organizing, arming, and disciplining the 
 militia, and for governing such part of them as may be employed 
 in the service of the United States, reserving to the States respec- 
 tively the appointment of the officers and the authority of train- 
 ing the militia according to the discipline prescribed by Congress. 
 
 17. To exercise exclusive legislation in all cases whatsoever, 
 over such district (not exceeding ten miles square) as may, by 
 cession of particular States, and the acceptance of Congress, be- 
 come the seat of the government of the United States, and to 
 exercise like authority over all places purchased by the consent 
 of the legislature of the State in which the same shall be, for the 
 erection of forts, magazines, arsenals, dock-yards, and other need- 
 ful buildings. 
 
 18. To make all laws which shall be necessary for carrying into 
 execution the foregoing powers, and all other powers vested by 
 this Constitution in the government of the United States, or any 
 department or officer thereof. (Article I, Section 8.) 
 
 19. To impeach Federal officers, the charges being made by
 
 THB UNITED STATES GOVERNMENT. 53 
 
 the House and heard and determined by the Senate. (Article I, 
 Section 3, clauses 6 and 7.) 
 
 20. To fix times of choosing presidential electors. (Article 
 II, Section 1, clause 4.) 
 
 21. To change time, places and manner of choosing United 
 States senators and congressmen, except as to places of choosing 
 senators. (Article I, Section 4, clause 1.) 
 
 22. To regulate the succession in office of President, when no 
 President or Vice-President (Article II, Section 2, clause 6.) 
 
 23. To prevent slavery in the United States. (13th Amend- 
 ment.) 
 
 24. To protect citizens of the United States and of the several 
 States against unlawful abridgment of their privileges and im- 
 munities, and against deprivation of legal rights except by due 
 process of law. (14th Amendment.) 
 
 25. To reduce representation of each State in Congress and 
 the Electoral College, whenever male inhabitants of 21 years of 
 age are disfranchised for any cause except for crime or participa- 
 tion in rebellion. (14th Amendment.) 
 
 26. To prevent disfranchisement of citizens on account of race, 
 color, or previous condition of servitude. (15th Amendment.) 
 
 EXECUTIVE DEPARTMENT. 
 President. 
 
 It is apparent that when the Constitution was adopted, the 
 President was the only executive officer peculiarly in the minds 
 of the people. The plan for his selection is elaborate. Security 
 against vacancy of the presidential office by the death, inability, 
 or resignation of the person elected was provided for by the estab- 
 lishment of the office of Vice-President. This was as far as the 
 scheme of succession was worked out in detail. But still it was 
 foreseen that two vacancies might occur in the course of four 
 years, and Congress was given power to provide for this by de- 
 claring what "officer shall then act as President." Congress 
 has exercised this power, and it is now the law that the following 
 cabinet officers in the order named, if they possess the necessary 
 qualifications under the Constitution and have been appointed 
 by the President and confirmed by the Senate and are not under 
 impeachment, shall act as President in case of death, removal, 
 resignation, or inability of both the President and Vice-Presi-
 
 54 AMERICAN ELEMENTARY LAW. 
 
 dent, viz. : Secretary of State, Secretary of the Treasury, Secre- 
 tary of War, Attorney-General, Postmaster-General, Secretary 
 of the Navy, and Secretary of the Interior. The person so in 
 stalled shall continue therein until the disability of the Presi- 
 dent or Vice-President is removed. Congress has also provided 
 for a special election for President, under the conditions stated 
 above. 
 
 Manner of Election. 
 
 The President and the Vice-President are not elected by direct 
 vote of the people, but by a number of electors, selected in each 
 State as its legislature may determine, and equal to the whole 
 representation of that State in Congress. These electors meet 
 in their respective States, and each votes by ballot for one candi- 
 date for President and one for Vice-President. A list of these 
 ballots is then made up, certified, sealed and transmitted by mes- 
 senger to the capital of the United States, directed to the Presi- 
 dent of the Senate. This officer opens the lists and counts the bal- 
 lots in the presence of both houses of Congress, and announces the 
 result. If any person has secured a majority of the votes cast 
 by the electors for President, he is declared elected to that office. 
 If any has secured a majority of the votes cast for Vice-President, 
 he is declared elected to that office. If no one receives a majority 
 of all the votes for President, there is no election to that office, 
 and the House of Representatives proceeds at once to choose a 
 President by ballot from the three candidates having the highest 
 number of votes. In such election the representatives vote by 
 State, the representatives from each State having in the aggregate 
 one vote. Two-thirds of the States must participate, and a 
 majority of all the States is necessary to an election. If there is 
 no election of a Vice-President by the Electoral College, that fact 
 is announced, and the Senate proceeds to elect that officer, choos- 
 ing between the two candidates having the largest vote. The 
 senators vote individually and not by States. Two-thirds con- 
 stitute a quorum, and a majority of the whole Senate is necessary 
 to a choice. 
 
 It follows, from the above provisions, that a majority of the 
 votes cast for the electors by the people is not necessary to an 
 election of a President or Vice-President; in fact, it has several 
 times occurred that the man elected President had received a
 
 THE UNITED STATES GOVERNMENT. 55 
 
 minority of the popular vote. The several political parties nomi- 
 nate their respective candidates. These parties may be about 
 equally divided in one State, and one of them carries it by a thou- 
 sand majority and elects all of the electors of the State from 
 that party. This, of course, gives the whole vote of that State 
 to the candidate of the successful party. In another State, 
 equally populous and having the same number of electoral votes, 
 the two parties are not equally divided, but practically all the 
 votes belong to the party which was defeated in the other State. 
 The candidate of this party gets almost all the popular votes of 
 that State, but in the Electoral College he only gets the electoral 
 vote of that State, which, in the supposed case, is the same as that 
 given the opposing candidate by the first State. As between 
 these States there would be a tie in the vote, and no election ; but 
 a third State selects electors favorable to the candidate who was 
 successful in the first State; they put their vote with the votes 
 of the first State and make an election. The majority of the suc- 
 cessful candidate in the third State may have been small, and the 
 total popular vote secured by the successful candidate in States 
 one and three may not equal the majority of the unsuccessful 
 one in the second State, yet the one getting the majority of the 
 electoral vote gets the office, to the exclusion of the one who has 
 the majority of the popular vote. 
 
 Executive Departments. 
 
 The duties of the President are very great. He is charged 
 with general enforcement of the law. He is the head of all the 
 several departments of the executive branch of the government, 
 and upon him rests the ultimate responsibility as to each. These 
 departments are now nine in number, viz. : Department of State, 
 of the Treasury, of War, of Justice, of the Postoffice, of the Navy, 
 of the Interior, of Agriculture, and of Commerce and Labor. 
 The first of these historically antedates the office of president it- 
 self. Those of the Treasury, of "War, of Justice, of the Postoffice. 
 and of the Navy were created practically upon the organization 
 of the government. The Department of the Interior was created 
 in 1849, of Agriculture in 1889, and of Commerce and Labor in 
 1902. 
 
 Each of these departments is in charge of a chief, or head 
 called secretary of the particular department, except in the case
 
 56 AMERICAN ELEMENTARY LAW. 
 
 of the Department of Justice, in which he is called the attorney- 
 general, and in the Postoffice, in which he is called the postmaster- 
 general. In the departments there are thousands of subordinate 
 officers, each of whom is responsible to his chief, and whose official 
 action, in its ultimate results, affects the President either for 
 good or bad. 
 
 The several heads of these departments constitute the Presi- 
 dent's Cabinet. They have two meetings each week. Their pur- 
 pose is to keep the President fully informed upon all matters of 
 importance, mutually to advise and counsel one another and the 
 President and to receive instructions from him. The President 
 is the real authority, and has the final decision of all questions in 
 his hands. He gets the best information and advice he can and 
 then determines the large matters of policy himself, leaving the 
 details and administrative part of the scheme to the head and 
 subordinates of the department to which the matter pertains. 
 
 It is a singular fact that there is no reference in the Constitu- 
 tion to any of these departments, as such, except in general terms. 
 In stating the duties of the President, it is said that he "may 
 require the opinion in writing of the principal officer in each of 
 the executive departments upon any subject relating to the duties 
 of their respective offices." This does not seem to foreshadow 
 Cabinet meetings of the kind now in vogue. There is nothing 
 in the Constitution indicating the number of the departments, nor 
 the manner of their establishment or organization; hence the 
 whole matter is left with Congress and the President. The pres- 
 ent arrangement has grown up under their joint action, and is 
 very effective; it has the advantage of flexibility and ease of 
 adaptation to varying conditions, as the governmental needs may 
 suggest or require. 
 
 Pardons. 
 
 The pardoning power is also vested in the President. It is one 
 of extreme importance and delicacy. Errors are constantly made 
 in the administration of the criminal law, and in many instances 
 change of conditions subsequent to the trial make it proper to 
 relieve from penalties, justly and legally imposed at the time 
 the judgments were entered. These nice balancings between 
 justice and mercy, determinations as to upholding the adjudica- 
 tions of the courts, and setting them aside in proper cases, taxes
 
 THE UNITED STATES GOVERNMENT. 57 
 
 to the utmost both the brain and sympathy of the most capable. 
 This all falls upon the President 
 
 Treaties. 
 
 The next duty imposed upon the President is to make treaties 
 with foreign nations. In this he acts in conjunction with the Sen- 
 ate, but the initative is with him. Usually the terms of the agree- 
 ment are passed upon and arranged with the foreign power, and 
 the matter in its final form is presented to the Senate for its judg- 
 ment. Occasionally the President asks the judgment and advice 
 of the Senate before arranging the final terms with the other 
 nation. 
 
 A treaty is an agreement between two or more independent 
 States, and not a legislative act. But, under the Constitution of 
 the United States, treaties made with other nations are declared to 
 be a part of the law of the land, and, in this sense, they are bind- 
 ing upon all the persons subject to the governments entering into 
 them, and must be obeyed both by the officers in their public 
 actions and by the citizens in their private capacities. 
 
 Appointing Power. 
 
 The President appoints all ambassadors and other public minis- 
 ters, consuls, and judges of the Supreme Court and all other 
 officers of the United States except Senators and Kepresentatives, 
 unless there be express law authorizing some one else to appoint. 
 In all important offices, this appointment must be concurred in 
 by two-thirds of the Senate. In case of such inferior officers as 
 Congress may designate, the appointment does not need confirma- 
 tion by the Senate. Congress can lodge the power of appoint- 
 ment to inferior positions with the courts or the heads of depart- 
 ments. All Federal offices of consequence are appointed by the 
 President. The highest he selects for himself, usually in con- 
 ference with the leaders of the political party by which he was 
 elected. The less important are filled on recommendation of 
 members of Congress from the district in which the office is to 
 be filled, or by political influence or standing. 
 
 This power of appointment, extending, as it does, throughout 
 the whole United States, and to many officers to foreign place? 
 gives a patronage which is dangerous in the extreme to the purity 
 and efficiency of the public service j but no better scheme has been
 
 58 AMERICAN ELEMENTARY LAW. 
 
 devised, and as trust must be reposed somewhere, the present plan 
 will likely continue, modified by the doctrines and methods in- 
 volved in the Civil Service and similar laws. 
 
 There are a great many Federal offices the term of which is 
 not fixed by law or expressly made to depend upon good behavior. 
 In such cases it seems that the power to appoint carries the power 
 to remove, and this gives still further power to the party in con- 
 trol of the government. 
 
 Powers in Connection with Legislation. 
 
 It is the duty of the President, from time to time, to give infor- 
 mation to Congress as to the state of the Union, and make recom- 
 mendations as to needed legislation. This duty he discharges by 
 sending to Congress messages at various times. Usually the most 
 important of these are those sent in at the meeting of each session 
 of Congress. They are state papers of great value and impor- 
 tance, indicating the policy of the administration and its attitude 
 toward all public questions. 
 
 The President may, when necessary, convene both or either 
 house of Congress, and if they can not agree as to adjournment, 
 he may adjourn them to such a time as he may see fit 
 
 He has the veto power, which more closely identifies him with 
 the legislative department, and, in reality, gives to him a larger 
 share in determining what the law shall be than to any other one 
 person. His right to send messages and to make official sugges- 
 tions to Congress gives him a very appreciable share in initiating 
 measures of which he approves, and the veto power gives a very 
 large opportunity to prevent the enactment of measures of which 
 he does not approve. 
 
 Intercourse with Foreign Nations. 
 
 The President is also the officer designated to receive ambassa- 
 dors and other public ministers. This, and his power to nominate 
 the representatives of this government in foreign States, makes 
 him practically the medium of communication between the United 
 States and all other governments and peoples. 
 
 In addition to the duties enumerated, he is charged with the 
 responsibility of enforcing the laws generally. So his time is 
 fully occupied with matters great and important enough to sat- 
 isfy the cravings of the most ambitious.
 
 THE UNITED STATES GOVERNMENT. 59 
 
 JUDICIAL DEPARTMENT. 
 Judicial Function. 
 
 In order that the will of the sovereign, as announced by the 
 proper agencies, may be practically effective, it is essential that 
 there be some sanction attached; that is, there must be either 
 reward for conformity to the established rule or penalty for de- 
 parture from it. These would sometimes be useless unless there 
 were some method provided for applying them to individual con- 
 duct. This application, to be just, involves investigation as to 
 the particular conduct under consideration, and ascertaining the 
 truth concerning it. "When this truth is ascertained, the conduct, 
 as it is found to exist, must be compared with the announced legal 
 standards, and the sanctions antecedently provided for such 
 conduct, whether of approval or disapproval, must be authorita- 
 tively applied and the result announced. Then this result must 
 be enforced. This process involves essentially different powers 
 and functions from those involved in making laws. In our gov- 
 ernment they are exercised by a separate department. These 
 powers are designated the judicial function, and the department 
 exercising them is the Judicial Department. This department 
 consists of tribunals created by the sovereign, and known as 
 courts. The duty of these tribunals is to investigate and deter- 
 mine the nature of individual conduct and to determine its con- 
 formity or non-conformity to the law, and to apply to it the 
 sanctions of the law and authoritatively announce the conclusion 
 thus arrived at; and, finally, to set in motion and superintend 
 the executive agents of the government in enforcing such de- 
 cision. 
 
 Thus it is seen that the judicial function of the government 
 deals with the particular conduct of particular persons, and acts 
 directly upon such persons, or their conduct, or both, and thai 
 in doing this it exercises three distinct powers: 
 
 (1) The power to hear and investigate; 
 
 (2) the power to determine the truth of the matter and to 
 apply to it the sanctions of the law ; and 
 
 (3) the power to have the conclusion thus arrived at enforced 
 through the proper agencies. 
 
 In our governments, both State and Federal, there are numer- 
 ous classes of courts, each class having power to exercise the judi-
 
 60 AMERICAN ELEMENTARY LAW. 
 
 cial function as to designated cases. This authority of each class 
 of courts to act for and to represent the sovereign in the exer- 
 cise of judicial functions in the designated cases is the jurisdic- 
 tion of that class of courts. The sovereign creating each court 
 determines how much and what judicial power it shall have. 
 "Within the power thus delegated the court is the duly authorized 
 agent of the sovereign, and all the power of the government is 
 pledged to uphold and maintain it. Beyond these limits the court 
 is without authority, and its action is void. 
 
 Jurisdiction is classified in different ways, according to the 
 basis of separation. Of these, the two following classifications 
 are most important to us now : First, into original and appellate ; 
 second, into exclusive and concurrent. 
 
 Original jurisdiction is the power to hear and determine a case 
 in the first instance, to originally entertain and dispose of the 
 suit. Appellate jurisdiction is the power vested in a superior 
 court to rehear a case which has been tried in some inferior tri- 
 bunal and correct any errors which may have occurred in its 
 progress. Exclusive jurisdiction is the exclusive power to hear 
 cases of certain kinds ; no other court but the one under consider- 
 ation, or the class of courts to which it belongs, having such power. 
 Concurrent jurisdiction exists when courts of different classes 
 have the right to hear and determine the same case or cases. 
 
 Judicial Power of the United States Government. 
 
 As all the powers possessed by the United States Government 
 are conferred upon it by the Federal Constitution and its Amend- 
 ments it follows that it has no judicial power except such as 
 is thus granted. Within the scope of this delegated authority 
 Congress may create courts and confer jurisdiction upon them. 
 Beyond that it cannot go. 
 
 That we may get the extent of this power properly in mind 
 we will give the provisions of the original constitution and the 
 several amendments with reference to judicial authority and 
 then summarize these. 
 
 Article HI, Constitution of the United States. 
 
 "Section 1. The judicial power of the United States shall be 
 vested in one Supreme Court and in such inferior courts as Con- 
 gress may, from time to time, ordain and establish. The judges,
 
 THE UNITED STATES GOVERNMENT. 61 
 
 both of the supreme and inferior courts, shall hold their offices 
 during good behavior, and shall, at stated times, receive for their 
 services a compensation, which shall not be diminished during 
 their continuance in office. 
 
 Section 2. The judicial power shall extend to all cases in law 
 and equity, arising under this Constitution; the laws of the 
 United States and treaties made, or which shall be made, under 
 their authority; to all cases affecting ambassadors, other public 
 ministers, and consuls; to all cases of admiralty and maritime 
 jurisdiction ; to controversies to which the United States shall be 
 a party; to controversies between two or more States; between 
 a State and citizens of another State; between citizens of differ- 
 ent States, between citizens of the same State claiming land under 
 grants of different States, and between a State, or the citizens 
 thereof, and foreign States, citizens, or subjects. 
 
 In all cases affecting ambassadors, other public ministers, and 
 consuls, and those in which a State shall be a party, the Supreme 
 Court shall have original jurisdiction. In all the other cases be- 
 fore mentioned, the Supreme Court shall have appellate juris- 
 diction, both as to law and ftict, with such exceptions and under 
 such regulations as Congress shall make. 
 
 The trial of all crimes, except in cases of impeachment, shall 
 be by jury ; and such trial shall be held in the State where said 
 crimes shall have been committed ; but when not committed within 
 any State, the trial shall be at such place or places as Congress 
 may by law have directed." 
 
 The foregoing is the judiciary article of the Constitution, as 
 originally adopted omitting only the sections as to treason. 
 
 It was objected that there were not restrictions enough around 
 the judiciary, and several amendments to cure these defects were 
 proposed and adopted, as follows: 
 
 Amendment IV. The right of the people to be secured in their 
 persons, houses, papers, and effects, against unreasonable searches 
 and seizures, shall not be violated, and no warrants shall issue 
 but upon probable cause, supported by oath or affirmation, and 
 particularly describing the place to be searched, and the persons 
 or things to be seized. 
 
 Amendment V. No person shall be held to answer for a capital, 
 or otherwise infamous, crime, unless on a presentment or indict-
 
 62 . AMERICAN ELEMENTARY LAW. 
 
 ment of a grand jury, except in cases arising in the land or naval 
 forces, or in the militia, when in the actual service in time of war 
 or public danger; nor shall any person be subject for the same 
 offense to be twice put in jeopardy of life or limb ; nor shall he 
 be compelled, in any criminal case, to be a witness against himself, 
 nor be deprived of life, liberty or property without due process 
 of law ; nor shall private property be taken for public use without 
 just compensation. 
 
 Amendment VI. In all criminal prosecutions, the accused shall 
 enjoy the right of a speedy and public trial, by an impartial jury 
 of the State and district wherein the crime shall have been com- 
 mitted, which district shall have been previously ascertained by 
 law, and to be informed of the nature and cause of the accusa- 
 tion; to be confronted with the witnesses against him; to have 
 compulsory process for obtaining witnesses in his favor, and to 
 have the assistance of counsel for his defense. 
 
 Amendment VII. In suits at common law, where the value in 
 controversy shall exceed twenty dollars, the right of trial by jury 
 shall be preserved, and no fact tried by a jury shall be otherwise 
 re-examined, in any court of the Ufiited States, than according 
 to the rules of the common law. 
 
 Amendment XI. The judicial power of the United States shall 
 not be construed to extend to any suit in law or equity, com- 
 menced or prosecuted against one of the United States by citizens 
 of another State, or by citizens or subjects of any foreign State. 
 
 These constitutional provisions and acts of Congress, passed in 
 pursuance thereof, constitute the plan made by the people of the 
 United States for exercising their judicial functions. 
 
 Summarizing these we find that the Judicial Power of the 
 United States Government includes and is limited to the following 
 matters : 
 
 (1.) To all cases in law or in equity arising under the Consti- 
 tution and laws of the United States and treaties made, or which 
 shall be made, under its authority. 
 
 (2.) To all cases affecting ambassadors and other public minis- 
 ters and consuls. 
 
 (3.) To all cases of Admiralty and Maritime jurisdiction. 
 
 (4.) To controversies to which the United States shall be a 
 party.
 
 THE UNITED STATES GOVERNMENT. 63 
 
 (5.) To controversies between two or more States. 
 
 (6.) Between a State and citizens of another State. 
 
 (7.) Between citizens of different States. 
 
 (8.) Between citizens of the same State claiming lands under 
 grants of different States. 
 
 (9.) Between a State, or citizens thereof, and foreign States, 
 citizens, or subjects. 
 
 Federal Judicial System. 
 
 The judicial power belonging to the Federal Government is 
 divided among a number of different classes of courts which, 
 taken collectively, constitute the Federal Judicial System. 
 
 It is noticeable that only one court is provided for by name in 
 the Constitution, and the number or qualifications of judges for 
 that court are not given, and only two classes of cases are placed 
 within its jurisdiction : those in which ambassadors, ministers, or 
 consuls are to be affected, or in which a State is a party. As to 
 all other matters. Congress is left free to provide. This gives great 
 elasticity to the system, and enables Congress to provide such 
 courts and to give them such jurisdiction within the limits of the 
 powers of the Federal government as the development of the 
 country shall require. 
 
 While this freedom exists as to the power to be conferred upon 
 the different courts, there are several provisions in the Constitu- 
 tion which are quite restrictive as to the methods of procedure 
 in these courts when created. Thus, the differences between Law 
 and Equity are recognized, and it is held that this recognition 
 requires the continuance of the distinction ; and that the refer- 
 ences to trial by jury mean a jury of twelve men according to 
 the course of the common law, etc. 
 
 Congress has passed several judiciary acts since the foundation 
 of the government, each providing such inferior courts as the in- 
 terests of the country seemed to demand. The system now exist- 
 ing consists of the Supreme Court, provided by the Constitution, 
 nine Circuit Courts of Appeal, a large number of Circuit Courts, 
 a still larger number of District Courts, United States Commis- 
 sioners, and a number of Courts of Claims of different designa 
 tions, and courts for the District of Columbia. 
 
 Each class of courts thus created has certain classes of cases
 
 64 AMERICAN ELEMENTARY LAW. 
 
 which it may try and determine, and has no power over other 
 cases or controversies not embraced in such classes. 
 
 Jurisdiction of Federal Courts. 
 
 In considering this matter we will limit our discussion to those 
 tribunals which constitute the Federal Judicial System proper 
 and in dealing with these we will begin with the lowest and pro- 
 ceed to the highest. 
 
 District C&urts. — These courts have original jurisdiction over 
 the following matters: 
 
 (1.) Of all criminal cases under Federal laws which do not 
 receive capital punishment. 
 
 (2.) Of all suits under the Federal laws for penalties and for- 
 feitures. 
 
 (3.) Of all common law actions by the United States, or their 
 officers in their official capacity. 
 
 (4.) Of all cases under the postal laws. 
 
 (5.) Of all equitable proceedings to collect United States reve- 
 nue from the land of the delinquent. 
 
 (6.) Of all Admiralty and Prize cases. 
 
 (7.) Of all suits of aliens for "torts," when in violation of the 
 law of nations. 
 
 (8.) Of proceedings under the "Civil Rights" laws. 
 
 (9.) Of Bankruptcy proceedings. 
 
 There are some other unimportant matters. 
 
 Circuit Courts. — The Federal courts having the largest original 
 jurisdiction are the circuit courts. Of these are a great number, 
 distributed throughout the Union and sitting at such places as 
 provided by law. They may be held by Justices of the Supreme 
 Court, by circuit, or by district judges. Usually they are held 
 by the latter. 
 
 The jurisdiction of -these courts is extensive and important. In 
 some cases, as those arising under the patent and copyright laws, 
 it is exclusive of both the State courts and other Federal courts, 
 and this without reference to the amount in controversy; that, 
 is, all litigation regarding patent rights and copyrights must 
 be begun in a circuit court of the United States, and can not be 
 tried in any other. In some cases it is exclusive as to State 
 courts, but concurrent with Federal district courts, as in some 
 proceedings for penalties and forfeitures under Federal laws,
 
 THE UNITED STATES GOVERNMENT. 65 
 
 and some arising under the "Civil Rights" acts. In some cases 
 it is concurrent with the State courts, but exclusive as to all other 
 Federal courts, as in suits between citizens of different States 
 involving two thousand dollars or more. Sometimes the juris- 
 diction depends upon the citizenship and residence of the parties, 
 and sometimes upon the nature of the controversy. "We can not 
 go into matters in detail, or even with technical accuracy; but, 
 in general terms, the jurisdiction of these courts, Federal Circuit 
 Courts, is as follows : 
 
 (1.) Cases in which the United States are plaintiffs or peti- 
 tioners. 
 
 (2.) Cases "between citizens of the same State claiming land 
 under grants of different States. ' ' In neither of these classes of 
 cases is the amount in controversy considered in determining 
 jurisdiction. 
 
 (3.) Cases "arising under the Constitution or laws of the 
 United States, or treaties made, or which shall be made, under 
 their authority, ' ' which involve $2,000 or over. 
 
 (4.) Cases "in which there is a controversy between citizens 
 of different States," which involve $2,000 or over. 
 
 (5.) Cases "between citizens of a State and foreign States, 
 citizens or subjects," which involve $2,000 or over. 
 
 (6.) "All crimes and offenses cognizable under authority of 
 the United States, except as otherwise provided by law, and con- 
 current jurisdiction with the district courts of the crimes ancjl 
 offenses cognizable by them." 
 
 (7.) Cases arising under the patent and copyright laws of the 
 United States. 
 
 The jurisdiction, in the cases mentioned in the classes 3, 4 and 
 5, is dependent upon the amount in controversy, which must, in 
 every instance, be two thousand dollars or over, exclusive of 
 costs. In all these cases, that is, in classes 3, 4 and 5, the juris- 
 diction of these Federal courts is concurrent with the courts of 
 the several States having jurisdiction from the States to try sim- 
 ilar matters. If the complainant shall go into the Federal court, 
 his complaint may be tried there ; if into the proper State court, 
 his complaint may be tried there. 
 
 "While this last statement is correct, and the State court may 
 try it, still it is in the power of the defendant, by taking the 
 5
 
 66 AMERICAN ELEMENTARY LAW. 
 
 proper steps at the proper time, to remove a case of either of the 
 kinds now under consideration from a State court into the Fed- 
 eral circuit court of that district. The details of this proceeding 
 do not concern us. When the Federal statute is complied with, 
 it destroys the jurisdiction of the State court, and transfers the 
 case to the Federal court for further action. 
 
 The Circuit Courts also have some special powers as to penal- 
 ties, which need not be considered. They have appellate jurisdic- 
 tion in Bankruptcy matters. 
 
 Circuit Court of Appeals. — These are the next highest courts 
 in the Federal judicial system. There are nine of them, one in 
 each of the several circuits assigned to the judges of the Supreme 
 Court. Theoretically, each of these courts is composed of the 
 Supreme Court Justice in whose circuit it is held and two circuit 
 judges of that circuit ; but, in reality, the members of the Supreme 
 Court are fully employed with their duties in that court, and do 
 not sit in these courts. The statute creating the courts provides 
 that they may be held without the presence of the Supreme 
 Gourt Justice, either by three circuit judges, or by two circuit 
 judges and a district judge, or by one circuit judge and two dis- 
 trict judges, and the courts are composed in this way. 
 
 Circuit judges are judges appointed by the President and con- 
 firmed by the Senate, whose primary duty it is to hold Circuit 
 Courts, and district judges are appointed in the same way to hold 
 district courts ; but the statutes confer upon both circuit and dis- 
 trict judges the power to sit upon the Circuit Court of Appeals 
 when called upon to do so, and to hold circuit courts and district 
 courts. So, there is great elasticity in the system, so far as the 
 constituent members of the respective courts are concerned. 
 
 Circuit Courts of Appeal have no original jurisdiction. All 
 their power is to revise cases tried in the circuit and district 
 courts. This appellate jurisdiction extends to all cases tried in 
 either of said courts in which the appeal does not go directly to 
 the Supreme Court, as set out hereafter. This jurisdiction is 
 said to be final in all cases which are brought into the Federal 
 courts by reason of the diverse citizenship or alienage of the par- 
 ties, in all patent cases, in all cases arising under the revenue 
 laws, in all criminal cases not imposing a death penalty, and in 
 Admiralty cases. As hereafter explained, this so-called final
 
 THE UNITED STATES GOVERNMENT. 67 
 
 jurisdiction is, in fact, subject to review by the Supreme Court. 
 All other eases decided by this court may be carried to the Su- 
 preme Court for revision under express provisions of the statute 
 provided they involve one thousand dollars or over. 
 
 Supreme Court. — The Supreme Court holds its sessions at 
 Washington City and consists of nine members, one called the 
 Chief Justice, who is its presiding judge, and eight Associate 
 Justices. These are appointed by the President, subject to the 
 approval of the Senate. They hold for life, or during good be- 
 havior. This is the highest court in the United States, if not in 
 the world. It has both original and appellate jurisdiction. 
 
 Its original jurisdiction includes all cases affecting ambassadors, 
 other public ministers, and consuls, and those in which a State is 
 a party. As to ambassadors, this jurisdiction is not only original, 
 but it is also exclusive, in the strictest sense. No other court, 
 either Federal or State, can entertain such suits. As to suits* in 
 which a state is a party, the jurisdiction is exclusive so far as 
 the Federal courts are concerned, no such court having the power 
 to entertain and try such suits unless there be other grounds of 
 jurisdiction, such as the involving of a Federal question. » 
 
 Its appellate jurisdiction is quite extensive. It is of three 
 kinds: 
 
 (1) Over cases brought to this court directly from Federal 
 courts of original jurisdiction, that is, from district and circuit 
 courts. 
 
 (2) Over cases that have gone from Federal courts of original 
 jurisdiction to the Circuit Courts of Appeal, and which may go 
 from there to the Supreme Court. 
 
 (3) Over cases tried in State courts and involving what are 
 technically known as Federal questions. 
 
 Taking them in order, the first, that is, cases brought to this 
 court directly from Federal courts of original jurisdiction, covers 
 the following cases: 
 
 1. Those in which the jurisdiction of the trial court is in ques- 
 tion. In these cases, the question of jurisdiction is raised in the 
 lower court, and the case is finally tried there ; then the aggrieved 
 party either takes the case to the Supreme Court on the question 
 of jurisdiction alone, or to the Circuit Court of Appeals upon the 
 whole case.
 
 63 AMERICAN ELEMENTARY LAW. 
 
 2. Prize cases. 
 
 3. Criminal cases in which the death penalty is assessed. 
 
 4. Cases involving the construction and application of the Fed- 
 eral Constitution. 
 
 5. Cases calling in question the validity of any act of Congress, 
 or the validity or construction of any treaty of the United States. 
 
 6. Cases in which a State statute or constitution is attacked as 
 being contrary to the Federal Constitution. 
 
 Jurisdiction of the second of these classes of cases extends to all 
 cases over which the Circuit Court of Appeals has jurisdiction 
 which involve as much as one thousand dollars. 
 
 This jurisdiction is, however, exercised differently in different 
 cases. There are certain classes of cases, which have been given 
 in connection with Circuit Courts of Appeals, in which it is said 
 the jurisdiction of these courts is ' ' final. ' ' But it is further pro- 
 vided "that in any case pending in the Circuit Court of Appeals, 
 that court may certify to the Supreme Court any questions 
 or propositions of law arising in the case, concerning which it de- 
 sires the instructions of the Supreme Court;" and further, that 
 the Supreme Court may, in its discretion, require the Circuit 
 Court of Appeals to certify to the Supreme Court, ' ' for its review 
 and determination," any case pending or decided by the Circuit 
 Court of Appeals in which the decision would be otherwise final. 
 So, it is possible for the Supreme Court, in this way, to revise any 
 decision or determination arrived at in the Circuit Court of Ap- 
 peals, which is called final. 
 
 All cases tried by the Circuit Courts of Appeals, and which do 
 not fall into the class above considered, may be revised by the Su- 
 preme Court, provided the matter in controversy exceeds one 
 thousand dollars, exclusive of costs. 
 
 Jurisdiction of the third of these classes of cases includes the 
 power to review "the final judgment or decree in any suit in the 
 highest court of a State in which a decision can be had, in each of 
 the following cases: 
 
 1. When the validity of a treaty or statute of the United States 
 is questioned in the State court, and the decision is against such 
 validity.
 
 THE UNITED STATES GOVERNMENT. 69 
 
 2. When any authority that is claimed under the United States 
 government is called in question in a State court, and the exist- 
 ence of the authority is denied. 
 
 3. Where a State statute is attacked in a State court as being 
 contrary to the Federal Constitution, or the treaties and acts of 
 Congress, and the statute is sustained. 
 
 4. Where authority exercised under a State is attacked in a 
 State court as contrary to the Federal Constitution, treaties, or 
 laws, and the authority is sustained. 
 
 All these cases raise " Federal questions," and the right of final 
 decision of all such questions is in the Supreme Court of the 
 United States. It is immaterial whether such a question arise in 
 a criminal or civil case, in a high or low court. When it has been 
 passed upon by the last State court to which the case can be car- 
 ried, and has been decided there adversely to the power of the 
 Federal government, the case can, by proper proceeding, be taken 
 directly to the Supreme Court of the United States for final deci- 
 sion. 
 
 Federal Practice. — The practice in the Federal courts is accord- 
 ing to the recognized rules of the common law and equity courts, 
 as it existed at the time of the organization of the Federal govern- 
 ment, with some statutory modifications. The most important 
 modification is that, in the Common Law cases, the rules of plead- 
 ing and practice shall conform to the law of the particular State 
 in which the court is being held, so far as may be. The extent of 
 this conformity is left largely to the discretion of the Federal 
 judge trying the case. This rule of practice does not apply to 
 Equity cases. 
 
 The foregoing pages present, in very general outline, the plan 
 of the Federal government and its several powers. They show, 
 to some extent, recreative, perpetuative, and functional parts of 
 the Federal Constitution. 
 
 Its remaining parts are, in the main, restrictive, consisting 
 principally of express limitations upon the powers of the Federal 
 and State governments, and guarantees to the latter and to the 
 citizens of each. The express limitations upon the powers of the 
 general government will be enumerated here, and those portions
 
 70 AMERICAN ELEMENTARY LAW. 
 
 relating directly to the States and citizens will be postponed until 
 we have taken up the State governments proper, and will then be 
 treated as the concluding portion of this general division of our 
 subject. 
 
 Express Limitations in the United States Constitution upon the Pow- 
 ers of the Federal Government. 
 
 1. On regulating suffrage. (Fifteenth Amendment, Section 1.) 
 
 2. On requiring tests for office. (Article VI, Section 3.) 
 
 3. On granting titles of nobility. (Article I, Section 9.) 
 
 4. As to religious matters. (First Amendment.) 
 
 5. As to freedom of the press. (Idem.) 
 
 6. As to assembling of the people. (Idem.) 
 
 7. As to petitions for redress. (Idem.) 
 
 8. As to the bearing of arms by the people. (Second Amend- 
 ment.) 
 
 9. As to suspension of writ of habeas corpus. (Article I, Sec- 
 tion 9.) 
 
 10. As to bills of attainder and ex post facto laws. (Article 
 I, Section 9.) 
 
 11. As to quartering soldiers in private houses. (Third 
 Amendment.) 
 
 12. As to denial of due process of law. (Fifth Amendment.) 
 
 13. As to taking private property for public use. (Fifth 
 Amendment.) 
 
 14. As to seizures and searches. (Fourth Amendment.) 
 
 15. As to taxation. (Article I, Section 9, No. 5.) 
 
 16. As to expenditures of public money. (Article I, Section 
 9, No. 7.) 
 
 17. As to slavery. (Thirteenth Amendment.) 
 
 18. As to procedure in criminal cases. (Fourth, Fifth, Sixth, 
 and Eighth Amendments.) 
 
 19. As to civil procedure. (Seventh Amendment.) 
 
 By act of Congress passed since the preparation of this text, 
 and which goes into effect Jan. 1, 1912, the jurisdiction of sev- 
 eral of the Federal Courts has been greatly changed. This act 
 is given in the appendix.
 
 CHAPTER IL 
 
 STATE GOVERNMENTS. 
 The State Governments. 
 
 The several States have inherent in them all the powers that 
 pertain to independent sovereignties which are not given over to 
 the Federal government or denied to or withheld from them by 
 the Federal Constitution. (Constitution of the United States, 
 Articles IX and X.) 
 
 The original thirteen States, located along the Atlantic sea- 
 board, were primarily separate and distinct colonies, planted by 
 the English Government at different times and under different 
 charters. At their inception they were dependent upon the 
 mother country alike for protection and support. As they in- 
 creased in population and developed their resources, it was 
 natural that their isolation and necessary dependence upon them- 
 selves for many things should beget in them a general spirit of in- 
 dependence in governmental affairs. 
 
 This natural law of growth asserted itself toward the close of 
 the eighteenth century; and, moved by a common impulse, they 
 refused longer to submit to British political supremacy, and by 
 the success of their united efforts demonstrated that the war was 
 a revolution, and not a rebellion, that they were patriots, and not 
 rebels. Having thus, by making common cause, established that 
 they were independent of the English throne, they undertook to 
 guarantee further security against foreign foes by entering into 
 a compact or confederacy. This proving unsatisfactory, they 
 "formed a more perfect union," under the Federal Constitution. 
 This instrument, and the government created by.it, we have 
 already briefly considered. 
 
 In forming this union the States did not surrender their poli- 
 tical autonomy nor all of their sovereign prerogatives. Each re- 
 mained a State having large powers and high responsibilities, and 
 the general government is one of united States, not an amalgama- 
 tion of States. This was distinctly understood when the Consti-
 
 72 AMERICAN ELEMENTARY LAW. 
 
 tution was formed and adopted, but fearing that there might be a 
 mistake or misconception on the subject, the tenth amendment to 
 the Constitution was submitted and adopted. So that since that 
 time, in the Constitution itself, it is expressly provided that ' ' the 
 powers not delegated to the United States, by the Constitution nor 
 prohibited by it to the states, are reserved to the states respect- 
 ively, or to the people." 
 
 As we have seen, all of the powers delegated to the Federal gov- 
 ernment are national in their character. That government has no 
 jurisdiction over local or domestic affairs. It is therefore imper- 
 ative that each State, or, more properly, the people in each State, 
 shall organize and maintain a system of government fully 
 equipped and adequate to meet efficiently all demands made upon 
 sovereignty in the control of local matters. These domestic or in- 
 ternal affairs are of incalculable importance, and their neglect 
 would mean local anarchy and inevitable disaster. "While it is 
 true that the several States could not successfully meet the re- 
 sponsibilities resting on the National government and discharge 
 its functions, it is equally true that the National government, as 
 constituted in and created by the Constitution, could not exist 
 unless supplemented and maintained by the several State organ- 
 izations. Their conditions of dependence and advantage, while 
 differing in kind, are essentially mutual. Neither could maintain 
 itself without the other. 
 
 The Federal Constitution guarantees to each State a republican 
 form of State government. It also guarantees that it shall not 
 be divided into more than one State, or combined with any other 
 State without its consent. It also undertakes to protect each 
 against invasion by any enemy, and, upon proper application of 
 its officers, against domestic violence. Other guarantees will be 
 considered later. 
 
 Since the formation of the United States government, it has ac- 
 quired, by different methods, large accessions of territory, and, 
 under the authority of the constitution, numerous States have 
 been formed therein and have been admitted into the Union. The 
 Republic of Texas came in by mutual agreement of the sovereigns; 
 the Texans on the one hand, and the people of the United States 
 on the other. It is an accepted constitutional rule that as these 
 States come into the Union they take just the same position
 
 STATE GOVERNMENTS. 73 
 
 toward the Federal government, have just the same privileges and 
 powers, and owe just the same duties as did the original States 
 upon the formation of the Union. So that, in our discussion, we 
 need make no special reference to one class as distinct from the 
 other. 
 
 "We will now proceed to discuss generally the plan and func- 
 tions of the State governments in the Union. 
 
 Form of Government in the Several States. 
 
 In form, these several governments are republican. The Fed- 
 eral Constitution guarantees to them this form. Just what is a 
 republican form of government has never been authoritatively 
 decided. It would seem, however, to carry with it the substantial 
 characteristics and qualities of the governments existing in the 
 several States at the time the Constitution was adopted. "What 
 modifications of this form or departures from it would make the 
 respective State governments unrepublican can not be stated with 
 accuracy. This much may, however, be assumed with certainty, 
 that no government could be republican which does not recognize 
 sovereignty as vested in the people to be governed, and in which 
 they do not substantially control and rule in all governmental af- 
 fairs, either by direct vote or through representatives selected by 
 themselves; and which does not provide for the reasonably-effi- 
 cient exercise of the three great political functions of legislating, 
 adjudging and applying legal sanctions, and executing the laws. 
 "When we speak of sovereignty as vested in the people, we must 
 not be understood as meaning in each and every person subject to 
 the government, but in a portion of them sufficiently large and 
 representative to insure that the government will, in fact, repre- 
 sent the popular will and subserve the public interests as distin- 
 guished from the will and interest of a minority. 
 
 The government existing in each State at the organization of 
 the Union possessed these characteristics, and each that has en- 
 tered the Union since has also had them. 
 
 State Constitutions. 
 
 Each of the State governments is based upon a written consti- 
 tution, adopted by the qualified voters in the State. These instru- 
 ments are subordinate to the Federal Constitution, laws and 
 treaties ; but, with that limitation, each is the supreme law of the
 
 74 AMERICAN ELEMENTARY LAW. 
 
 State ordaining it. By them all State governmental agencies are 
 created, and they constitute at once the source and limits of their 
 respective powers. We find in these constitutions creative, per- 
 petuative, functional, and restrictive provisions. They call the 
 State government into being, provide for its perpetual existence, 
 declare the powers and duties of its several departments and offi- 
 cers, and limit governmental action along designated lines by ex- 
 press reservations of rights and powers in the people and by ex- 
 press denials of power to the government. They all provide for 
 legislative, judicial, and executive departments, and give, with 
 more or less detail, the powers and duties of the respective offices 
 created in each. The general nature of these several departments 
 and their respective functions have been considered in connection 
 with the Federal government, and need not now be dealt with 
 further. 
 
 LEGISLATIVE DEPARTMENTS. 
 
 The legislative functions of the States are performed through 
 representative bodies known as legislatures. These consist of two 
 houses, one called the senate and the other called the assembly, or 
 house of representatives. The senate is the smaller body, and 
 usually its members hold for longer terms than members of the 
 house. The members of both houses are elected by the persons 
 residing in their respective districts and possessing the qualifica- 
 tions prescribed by the laws of the State. Each is the judge of the 
 qualification and election of its own members. The senate is pre- 
 sided over by the lieutenant-governor, and the house by a speaker 
 elected by the members from among their own number. Each 
 body has such clerks and other subordinate officers as it shall pro- 
 vide. In passing laws, the houses act separately. A majority vote 
 is necessary to pass any measure, and, in some instances, it is pro- 
 vided by law that a larger vote shall be necessary. Bills for" rais- 
 ing revenue, in most, if not all, of the States, must originate in the 
 house, but must be concurred in by the senate before becoming 
 laws. Bills of all other kinds may be introduced in either house 
 by any member thereof. 
 
 Before becoming a law, many, if not all, of the constitutions 
 require that a bill must be read and voted upon favorably in each 
 house on three separate days, and it must then be engrossed and 
 signed by the presiding officer of each house in open session.
 
 STATE GOVERNMENTS. 75 
 
 Pending measures are open for discussion, subject to the general 
 rules of parliamentary bodies, or the special rules adopted by the 
 house in which the matter is being considered. 
 
 Bills, after being legally passed, must be submitted to the gov- 
 ernor of the State for his action. If he approves the act, and files 
 it with the secretary of state, or if he fails to act upon it within a 
 limited time, it becomes a law. If he disapproves it, he endorses 
 this fact upon it, giving his reasons, and returns it, with his objec- 
 tions, to the house in which the bill originated ; and, unless it is 
 taken up and passed by both houses by a vote of two-thirds or over 
 in each, it is defeated; if it is passed by such vote it becomes a 
 law, notwithstanding the veto. 
 
 State legislatures deal with those matters not given over or del- 
 egated to the Federal government. As to the latter, they can not 
 legislate. The extent of their power would be to memorialize Con- 
 gress upon the subject, and thus seek to influence its action. As 
 to certain matters in the scope of the Federal authority, it has 
 been held that the State legislatures could act until Congress had 
 actually taken jurisdiction and exercised its powers. As the gov- 
 ernment grows ®lder, this doctrine is becoming of less practical 
 importance; for Congress is gradually extending its notice to 
 every interest or matter within its jurisdiction, and it would now 
 be difficult to find a subject upon which it may rightfully legis- 
 late which has not been acted upon by it. So that this is, even 
 now, rather a theoretical or speculative subject than one of serious 
 practical importance, though one phase of it will remain for con- 
 sideration so long as the government lasts. This is: What power 
 has a State legislature over a matter which is within the jurisdic- 
 tion of Congress, and upon which it has once acted and has sub- 
 sequently repealed or annulled its laws? It depends somewhat 
 upon the nature of the matter. Take the subject of Bankruptcy : 
 The Constitution confers upon the Federal government the power 
 to establish a uniform system of bankruptcy throughout the 
 Union. Congress has done so. While this congressional legisla- 
 tion stands, the State legislatures can not deal with the matter. 
 If the National bankrupt law shall hereafter be repealed, can the 
 State legislature re-enact insolvent laws operative within their 
 own territories ? It seems, as to this matter, they can.
 
 76 AMERICAN ELEMENTARY LAW. 
 
 EXECUTIVE DEPARTMENTS. 
 
 The chief executive officer of the several State governments is 
 called the Governor. He is chosen by the direct vote of the quali- 
 fied electors of the State. His general duty is the execution of all 
 the laws in force in the State. A common constitutional expres- 
 sion on this subject is "He shall cause the laws to be faithfully 
 executed. ' ' He is commander-in-chief of the State militia and, as 
 such, has control over that body, except in times of war, when its 
 members are mustered into the service of the United States. 
 
 He usually has the appointment of such State and district offi- 
 cers as are not elective, but his appointments are subject to con- 
 firmation or rejection by the senate. 
 
 He has the pardoning power. In many States this power is 
 vested in the governor absolutely. In others he acts upon the ad- 
 vice of or in connection with a pardoning board. 
 
 As the chief executive, he is usually free from any direct inter- 
 ference with his official action by any other department or officer 
 of the government, or by any individual. He can not be compelled 
 to do his duty, nor be held personally responsible for any damage 
 resulting from his official action or failure to act. In his indi- 
 vidual capacity, he is subject to suit or to criminal prosecution for 
 his personal wrongs ; but officially he is exempt from responsibil- 
 ity before the courts. His only liability to punishment for official 
 wrongs is by impeachment, before the senate, or by defeat, if he 
 should be a candidate for re-election. 
 
 The qualifications for this office, the terms, and compensation 
 differ in different States. 
 
 Lieutenant Governor. 
 
 The next executive officer is the lieutenant-governor. His 
 duties are to act as governor in the absence, disqualification, ina- 
 bility, removal or death of the governor. In most States he is also 
 the presiding officer of the senate. 
 
 Divisions of the Executive Department. 
 
 There are several divisions of the executive department in the 
 several States, some having more than others, and the titles of the 
 several heads of the same division differing in different States. 
 They usually embrace the following : 
 
 (1.) A department of state, the head of which is usually desig-
 
 STATE GOVERNMENTS. 77 
 
 nated as the secretary of state. He is the keeper of the official 
 seal of the State and of the State records proper, that is, of the 
 records of the legislative department and of the governor's office. 
 He issues all commissions to officers and all proclamations by the 
 governor. 
 
 (2.) A treasury, the head of which is designated the State 
 treasurer. He keeps and pays out all State money. 
 
 (3.) A department of public accounts, presided over by an offi- 
 cer sometimes called the State comptroller, sometimes the State 
 auditor. In this department are kept all accounts of indebtedness 
 to and by the State. Through it all vouchers or drafts on the 
 treasurer are issued for money due by the State. All records as 
 to State taxes and moneys due the State are kept here. In short, 
 it is in this department that the general bookkeeping of the State 
 is done, where its financial budgets are made out and all financial 
 information is kept. The several officers handling State funds are 
 required to keep strict account of everything connected therewith, 
 but these finally find their way into the comptroller's department, 
 by various systems of reports, and the general results are sum- 
 marized and shown there. 
 
 (4.) A department analogous to that in the Federal govern- 
 ment known as the department of justice. There is no general or 
 uniform designation of this department in the several States. Its 
 head is the attorney-general, who is chief legal adviser of the gov- 
 ernor and all the heads of the other departments. He also repre- 
 sents the State in the more important litigation to which it is a 
 party. The prosecution of criminal cases in courts of original 
 jurisdiction is usually left to local officers, appointed or elected 
 for that purpose, known as district or county attorney or com- 
 monwealth attorney, and by numerous other appropriate designa- 
 tions. These, in theory at least, act under the general supervision 
 and subject to the advice of the attorney-general of the State. 
 
 (5.) A department of public education, which has direct charge 
 of public educational matters within the State, so far as the com- 
 mon schools are involved. 
 
 (6.) A department to deal with fire, life, and other forms of 
 insurance. The purpose of this department is to investigate as to 
 the solvency and business methods of different insurance com- 
 panies doing or seeking to do business within the State, and to
 
 78 AMERICAN ELEMENTARY LAW. 
 
 advise the governor and legislature concerning them and to make 
 suggestions as to their proper regulation, and to take active su- 
 pervision of them and see that the laws as passed are obeyed by 
 the companies. 
 
 (7.) A land department. This, of course, exists only in those 
 States which own and have granted public lands. Its purpose is 
 to keep proper records and information as to these lands, to inves- 
 tigate the claims of all persons desiring to acquire any parts of 
 them, whether the whole title or a less estate, and to prepare and 
 execute, or have executed, the proper conveyances for the land 
 when it is to be disposed of by the State. 
 
 Doubtless there are other departments in some of the States, but 
 these are the most frequent. 
 
 The manner of selecting the heads of these several departments, 
 and the degree of their subordination to the governor or chief 
 executive, differ in the different States. In some they are elected 
 by the people, in some appointed by the governor, and in others 
 some are appointed and some are elected. 
 
 Besides these State offices, there are a great many lower offices 
 belonging to the executive department. The most important of 
 these are sheriffs. One sheriff is elected in each county, and is the 
 chief executive of the county. To him all the commands of the 
 governor, as to the execution of the law in his county, ordinarily 
 come. To him all legal process to be executed in his county is di- 
 rected, and it is his duty to carry out the commands thus received. 
 He is the executive officer who attends the higher courts held in 
 his county and carries out their lawful orders and decrees. He is 
 aided in all this by deputies appointed by him, and in the case of 
 necessity, has the power, under the law, to summon any citizen or 
 number of citizens to his assistance. Constables, or bailiffs, are 
 executive officers in still smaller territorial subdivisions, and have 
 duties, in the county in which their precinct lies, analogous to, 
 but not exclusive of, the sheriffs. 
 
 JUDICIAL DEPARTMENT. 
 
 The judicial power of the several States extends to all matters 
 not exclusively within the jurisdiction of the Federal courts under 
 the Federal Constitution and treaties. A great many matters are 
 within the exclusive jurisdiction of the State courts. A great 
 many are within the concurrent jurisdiction of courts of
 
 the two governments, and quite a number are within the exclusive 
 jurisdiction of the Federal courts. 
 
 Taking these up in reverse order, we fin i : 
 
 (1) That the Federal courts have jnri - n exclusive of the 
 State courts in the following classes of cases : 
 
 1. Suits affecting ambassadors, other public mii^..-i and 
 consuls. 
 
 2. Suits between two or mor^ 
 
 3. Suits between the United States and a State, 
 
 4. Suits against the United States. 
 
 5. Suits to enforce rights not existing under general law, but 
 dependent exclusively upon acts of Congress., and jnriadBctiao 
 over which is by Congress conferred on d:>:r^itri Federal courts, 
 as Bankruptcy proceedings, patent and cop yr.gi:: suits. 
 
 6. Admiralty proceeding 
 
 7. Proceedings to collect Federal revenue. 
 
 8. Prosecutions under the criminal laws of the United States 
 
 (2) That the jurisdiction of the State and Federal courts is 
 concurrent over all matters over which the Federal courts have 
 jurisdiction and which are not embraced in the eight classes 
 enumerated above. 
 
 This is the reverse of the general rule as to k _ e f ~~r 
 
 for, usually, the fact that either government has the power to 
 control a certain matter by legislation, of itself excludes the other 
 from concurrent power of regulation. Otherwise, there would be 
 two lawmakers, each establishing rules for the government of per- 
 sons as to the same matters. These rules would either dup" 
 each other and one be unnecessary, or they would eontr:. 
 other, and thus put the subject persons in a position where I 
 must choose between these conflicting laws, and unavoidably ren- 
 der themselves liable to the penalty for violating one. 
 
 With the judicial departments this is entirely different The 
 judicial function is not to make rules of conduct, but to ascertain 
 what rules have been properly made and determine whether or 
 not certain conduct of certain individuals conforms to or vi ; 
 these established rules. And as the legitimate legislative a-, 
 of each government results in law, and as all persons within the 
 United States are subject to both governments and must 
 the laws of each, it follows that the courts of either may, or
 
 80 AMERICAN ELEMENTARY LAW. 
 
 rather must, take into consideration the laws of both in deter- 
 mining the lawfulness or unlawfulness of conduct, and in apply- 
 ing the sanctions of the law thereto. So that in the great major- 
 ity of cases rights dependent upon the Common Law or upon the 
 Constitution and laws of the United States, as well as those 
 dependent upon the Constitution and laws of the State, may 
 be enforced through State courts. This is not true of those mat- 
 ters which have been enumerated as in the exclusive jurisdic- 
 tion of the Federal courts ; but, in any other class of cases, it is 
 no objection to the exercise of jurisdiction by a State court that 
 the case might have been brought in a Federal court. 
 
 In this connection, however, we must not lose sight of the right 
 of removal of certain cases from the State to the Federal courts. 
 This right is based upon the fact that the courts of the two gove- 
 ernments have concurrent jurisdiction ; for, if the suit is not with- 
 in the jurisdiction of the State court in which it is begun, in legal 
 contemplation there is no suit to remove, the proceeding is void. 
 On the other hand, if the Federal court, into which it is sought to 
 remove it, has no jurisdiction, the removal proceeding is void. 
 The right to remove is, therefore, a preference given to a Federal 
 court to try a case which both it and the State court have, in law, 
 the right to try. The same case can not be pending in two differ- 
 ent courts at the same time ; so, in order to give the right of re- 
 moval at all, it is essential that the law declare the effect of the 
 removal to be to destroy, or, as it is technically called, to oust the 
 jurisdiction of the State court as to that case. 
 
 (3) The State courts have jurisdiction exclusive of the Fed- 
 eral courts over all matters not declared by the United States 
 Constitution to be within the judicial power of the Federal gov- 
 ernment and over all matters within the judicial power of the 
 Federal government which have not been assigned by Congress 
 to any Federal court for adjudication. The matters, declared to 
 be in this power, were set out seriatim in dealing with the Federal 
 government, and need not be repeated. 
 
 State Judicial Systems. 
 
 The judicial power in the several States is the same m each. 
 It includes and extends to all matters not exclusively in the juris- 
 diction of the Federal courts. Each State determines for itself,
 
 STATE GOVERNMENTS. 81 
 
 within the limitations of the Federal Constitution as to a repub- 
 lican form of government, due process of law, etc., how this power 
 shall be exercised. 
 
 Each State determines for itself the system of courts which 
 it will establish, the power to be conferred upon each, and the 
 methods of procedure which are to be followed. There is great 
 uniformity in the general ideas running through these systems, 
 but great deal of dissimilarity in details 
 
 The general plan is as follows : 
 
 A large number of inferior courts are provided for, which 
 have jurisdiction over trivial matters, suits for small debts and 
 petty misdemeanors. The officers of these courts are chosen by 
 the people of the small precinct or territory, in which their 
 powers are to be exercised. The proceedings in them are infor- 
 mal. In many instances the result reached is final ; in some cases, 
 however, appeal may be taken to some higher court in the system, 
 usually the one next above that in which the trial was had. 
 
 There is, next, a class of courts having larger powers and more 
 extensive territory, but still quite limited in their jurisdiction, 
 in which are tried civil suits more important than those com- 
 mitted to the first class, yet relatively unimportant when com- 
 pared with the higher interests of the people, and more serious 
 crimes. Appeal is usually allowed from the judgment of this 
 class of courts to some designated superior court, whose decision 
 is, ordinarily, final. 
 
 Next, there is a class of courts having original jurisdiction 
 of all more important civil and criminal matters. These are usu- 
 ally courts of general jurisdiction, authorized to try all cases not 
 assigned to some other particular class of courts. 
 
 Next, there are higher courts, which have appellate or revi- 
 sory power, and in which cases are tried after the trial in the court 
 of original jurisdiction. These courts are very important institu- 
 tions, which have large influence in shaping the growth and de- 
 velopment of the laws of the several States. Their opinions, 
 or reasons given by them for the conclusions arrived at in dis- 
 posing of cases, are published, and constitute the reports of the 
 several States. These are binding upon the lower courts in the 
 State in which they are rendered, and are persuasive in all other 
 jurisdictions. 
 6
 
 82 AMERICAN ELEMENTARY LAW. 
 
 s 
 
 Courts of Law and Equity. 
 
 In many of the States the old distinction between Common Law 
 and Chancery courts has been abolished; in a smaller number 
 the distinction remains in a modified form; and perhaps in a 
 very small number it remains without any practical modification. 
 These differences necessarily make differences in the several ju- 
 dicial systems of the respective States. "Where the distinction 
 remains as at Common Law, or with only slight modification, 
 there are either two classes of important courts of extensive 
 original jurisdiction, or else the same courts maintain separate 
 dockets for cases at law and suits in equity. Under either of 
 these plans, the separate jurisdiction of law and equity may be 
 preserved and the peculiarities in the practice of Common Law 
 and Chancery courts kept up. 
 
 Common Law courts only take jurisdiction over Common Law 
 actions, entertain Common Law defenses, and give Common Law 
 relief. The rule in such courts is to try all matters of fact 
 directly involved in the case by a jury and as far as practicable 
 upon the testimony of witnesses given in open court. 
 
 In courts of equity only equitable causes of action can be sub- 
 mitted, equitable defenses entertained, and equitable remedies 
 given. In these courts, ordinarily, matters of fact are tried by 
 the judge without a jury and the testimony is given by deposi- 
 tions and not by witnesses personally before the court. 
 
 Extraordinary Governmental Agencies. 
 
 In all the States the distinct 'on between the legislative, judicial 
 and executive functions are recognized. The exercise of these 
 functions is delegated to separate departments of government. 
 In some of the State constitutions it is further provided that 
 the exercise of these powers shall not be combined and that no 
 officer belonging to one department shall exercise powers per- 
 taining to another. 
 
 Governments organized on this plan work well and for many 
 years were deemed sufficient. Later, conditions have arisen which 
 seem to demand greater concentration of power in the hands of 
 certain officers in order to secure prompt and efficient remedies 
 against serious dangers to the well-being of the public and to 
 the rights of private individuals. 
 
 To meet these conditions new forms of governmental agencies
 
 STATE GOVERNMENTS. 83 
 
 have been provided ordinarily under the designation of com- 
 missions. The most frequent of these are created for the purpose 
 of dealing with railroad companies and other large corporations 
 operating as common carriers or in other enterprises coming 
 under the general head of public utilities. 
 
 Most of the powers ordinarily conferred upon such commissions 
 are executive, but blended with these are usually found certain 
 legislative and judicial powers necessary in order to make their 
 action effective. 
 
 The concentration of such vast powers in the hands of a few 
 men is not desirable and should not be done unless it is clearly 
 apparent that conditions exist which make this form of control 
 necessary. In the main, the action of these various commissions 
 has been salutary and productive of general good. 
 
 The powers conferred upon these commissions and the manner 
 of their exercise differ too much in the different States for de- 
 tailed discussion to be •profitable. 
 
 Guarantees In the Federal Constitution to the Several States. 
 
 1. Republican form of government. (Article IV, Section 4.) 
 
 2. Protection against invasion, and, on proper application, 
 from domestic violence. (Idem.) 
 
 3. Shall not be divided nor combined. (Article IV, Sec- 
 tion 3.) 
 
 4. Equal suffrage in the Senate. (Article V.) 
 
 5. One representative. (Article I, Section 2, No. 3.) 
 
 6. That its citizens shall have equal rights in every other State. 
 (Article IV, Section 2.) 
 
 7. Appointment of militia officers. (Article I, Section 8, 
 No. 16.) 
 
 8. As to control of elections for Federal officers. (Article I, 
 Section 4.) 
 
 9. As to apportionment of direct taxes. (Article I, Section 
 2, No. 3.) 
 
 10. Against taxes on exports. (Article I, Section 9, No. 5.) 
 
 11. No preference in regulation of commerce or revenue. 
 (Article I, Section 9, No. 6.) 
 
 12. Against suits in Federal courts by citizens of any other 
 State or foreign nations. (Eleventh Amendment)
 
 84 AMERICAN ELEMENTARY LAW. 
 
 13. Right of extraditing criminals. (Article IV, Section 2, 
 Nos. 2 and 3.) 
 
 14. The verity and authenticity of its public acts and records. 
 (Article IV, Section l.)| 
 
 Limitations on the Powers of the States. 
 
 Next are the limitations in the Federal Constitution on the 
 power of the States. 
 
 1. On regulation of suffrage. (Fifteenth Amendment, Sec- 
 tion 1.) 
 
 2. Shall not enter into any treaty, alliance or confederation. 
 (Article I, Section 10.) 
 
 3. Shall not grant letters of marque or reprisal. (Idem.) 
 
 4. Shall not coin money. (Idem.) 
 
 5. Nor emit bills of credit. (Idem.) 
 
 6. Nor make anything but gold and silver coin a legal tender 
 in payment of debts. (Idem.) # 
 
 7. Nor pass any bill of attainder, ex post facto law or, law 
 impairing the obligation of contracts, or grant titles of nobility. 
 (Idem.) 
 
 8. Nor lay any imposts or duties on imports or exports with- 
 out the consent of Congress, and then only for benefit of United 
 States Government (Article I, Section 10, No. 2.) 
 
 9. Shall not lay duty on tonnage. (Idem.) 
 
 10. Nor keep troops nor ships in time of peace. (Idem.) 
 
 11. Nor make any agreement or compact with another State 
 or nation, without the consent of Congress. (Idem.) 
 
 12. Nor engage in war, except in case of actual invasion. 
 (Idem.) 
 
 13. Shall not make or enforce any law that shall abridge the 
 privileges or immunities of citizens of the United States. (Four- 
 teenth Amendment, Section 1.) 
 
 14. Nor deprive any person of life, liberty, or property, with- 
 out due process of law. (Idem.) 
 
 15. Nor deny to any person within its jurisdiction the equal 
 protection of the laws. (Idem.)
 
 CHAPTER IIL 
 
 RELATIONS BETWEEN THE GOVERNMENT OP THE UNITED STATES AND 
 THE STATE GOVERNMENTS, AND BETWEEN THE SEVERAL STATE 
 GOVERNMENTS. 
 
 POLITICAL ORGANIZATION IN THE UNITED STATES. 
 
 This subject has necessarily been touched upon in our pre- 
 ceding discussions but a more connected treatment seems de- 
 sirable. 
 
 The States. — The original thirteen States of the Atlantic sea- 
 board preceded in point of time both the old Confederation and 
 the present government of the United States. Each of these 
 States had existed for years as a British colony separate and dis- 
 tinct from each of the other colonies. Each was founded under 
 the sovereign power of England and for many years recognized 
 its dependent condition politically as well as practically. Ulti- 
 mately dissatisfaction arose between these colonies and England 
 and in 1775 a war of rebellion, or invasion, as looked at from the 
 English or American point of view, was begun. As all the 
 colonies were subjected to a common peril, they made common 
 cause for the conduct of this war though at first they had no 
 sort of organic connection. While matters were in this condi- 
 tion, the Second Continental Congress, which was in reality an 
 assembly of ambassadors from the several States, on the tenth 
 day of June, 1776, passed two resolutions, the first providing for 
 a committee to draft a Declaration of Independence, and the 
 second, for a committee to draft Articles of Confederation be- 
 tween the several States. Prior to this time, the Legislatures and 
 conventions of several of the States,, or colonies, as they were 
 then called, had passed resolutions advising or instructing their 
 delegates in Congress to declare independence. The resolutions 
 from Virginia, which seem to have been the immediate cause of 
 presenting the matter to the Continental Congress, instructed 
 its delegates in Congress ' ' to propose to that respectable body to
 
 86 AMERICAN ELEMENTARY LAW. 
 
 declare the United States colonies free and independent States, 
 absolved from all allegiance or dependence upon the Crown or 
 Parliament of Great Britain." 
 
 The resolution introduced in Congress in obedience to these 
 instruction declares "That the United Colonies are and ought 
 to be free and independent States ; that they are absolved from 
 all allegiance to the British Crown; and that all political con- 
 nection between them and the State of Great Britain is, and 
 ought to be, totally dissolved." 
 
 This resulted, as stated above, in the appointment of a com- 
 mittee to draft the Declaration of Independence. This committee 
 reported and the report was adopted on the fourth of July, 1776. 
 "With the language of that instrument all are familiar. 
 
 The several States, while they were considering declaring their 
 independence, were concurrently changing their governments in 
 such way as to conform them to separation from English au- 
 thority. Some of these changes ante-dated the idea of separate 
 and independent existence, and were adapted to the conditions of 
 estrangement between England and her colonies, then supposed 
 to be temporary only, and so contemplated renewal of allegiance 
 upon proper adjustment of the current difficulties. The changes 
 made later, however, were conscious and intended preparations 
 for separate Unitary States. 
 
 The committee appointed to draft Articles of Confederation 
 did not report until some months after the Declaration of Inde- 
 pendence. The report by it was adopted November 15, 1777. 
 The Confederation contemplated was not, to come into existence 
 until the Articles of Confederation were adopted by all the 
 States. The last State did not adopt them until March 1, 1781, 
 and hence the Articles did not become operative as to any until 
 that date. 
 
 It is clear, therefore, that these thirteen States ante-dated the 
 Confederation and of necessity the United States Government as 
 it now exists. The Declaration of Independence declares as to 
 the political status of these States at that time that "We there- 
 fore, the Representatives of the United States of America, in 
 General Congress Assembled, appealing to the Supreme Judge 
 of the World for the rectitude of our intentions do, in the name 
 and by the Authority of the good people of the Colonies solemnly
 
 RELATIONS BETWEEN GOVERNMENTS. 87 
 
 publish and declare, that these United Colonies are and of Right 
 ought to be Free and Independent States ; that they are absolved 
 from all allegiance to the British Crown and that all political 
 connection between them and the State of Great Britain is and 
 ought to be dissolved ; and that as Free and Independent States 
 they have full power to levy War, conclude Peace, contract Al- 
 liances, establish Commerce, and do all other Acts and Things 
 which Independent States may of right do." 
 
 Up to this time there were no articles of Confederation or 
 agreement existing among the colonies or States. Their common 
 need had forced concerted action. The Continental Congresses 
 were the result of the peril in which each of the colonies found 
 itself. It was an assemblage of delegates from each colony 
 called together for the common good. It received all its authority 
 from the Legislatures or Conventions of the several States. It 
 proved the desirability of concerted action and opened the way 
 for the establishment of a Confederation among the States. Its 
 action was limited strictly by the needs of the time and was 
 extended as differing conditions demanded. It acted as it deemed 
 best for the public good and its action was acquiesced in, not 
 because antecedently authorized or legally binding upon the 
 States but because acquiescence under the then existing condi- 
 tions was conducive, if not essential, to the existence of the States. 
 
 The Confederation. — The Articles of Confederation recom- 
 mended by the Continental Congress on November 15, 1777, were 
 to go into effect when adopted by all of the thirteen States. 
 These Articles were acted on from time to time, the majority 
 adopting them in July of 1778. Maryland was the last to adopt. 
 This action was taken March 1, 1781, at which time the Articles 
 became effective. 
 
 This instrument is styled "Articles of Confederation and Per- 
 petual Union between the States," naming each of the thirteen 
 original colonies. 
 
 Its first three articles are as follows : 
 
 Art. 1. The Style of this confederacy shall be "The United 
 States of America." 
 
 Art. II. Each state retains its sovereignty, freedom and inde- 
 pendence, and every Power, Jurisdiction and Right, which is
 
 88 AMERICAN ELEMENTARY LAW. 
 
 not by this confederation expressly delegated to United States, 
 in congress assembled. 
 
 Art. III. The said states hereby severally enter into a firm 
 league of friendship with each other, for their common defence, 
 the security of their liberties, and their mutual and general wel- 
 fare, binding themselves to assist each other, against all force 
 offered to, or attacks made upon them, or any of them, on ac- 
 count of religion, sovereignty, trade, or any other pretence what- 
 ever. 
 
 These articles are sufficient to show that the union formed by 
 them was designed to be, and in fact was, only a confederation 
 as that term has been heretofore explained. It gave legal form 
 and authority to the common understanding that had there- 
 tofore existed among the States. 
 
 The government created by it consisted of a Congress which 
 was little more than an assembly of ambassadors from the several 
 States. There was only one House or body. The number of 
 delegates from each State could not be less than two nor more 
 than seven. The delegates were selected annually in such manner 
 as the Legislature of each State should direct. Each State paid 
 the expenses of its own delegates. 
 
 Each State had one vote in Congress, irrespective of the size 
 or population of the State or the number of delegates it had in 
 the body. The powers of this Congress were very limited. It 
 could levy no taxes, and while it could wage war and declare 
 peace, it had no means of defraying expenses of either. 
 
 It had no executive and no permanent judicial officers. The 
 Articles were to be observed inviolable by every State and the 
 Union created by it was declared to be perpetual. The Articles 
 could not be amended unless the alteration was agreed in the 
 Congress of the United States and was afterward confirmed by 
 the Legislature of each State. In a short while the inherent 
 weakness of this plan asserted itself. A number of attempts were 
 made to amend the Articles of Confederation but the consent 
 of all the States could never be secured for any one of these. 
 
 Formation of the Government of the United States. — Disagree- 
 ments arose between the several States, particularly with ref- 
 erence to commerce. Several of the States called for Conventions 
 of representatives from all the States for the purpose of con-
 
 RELATIONS BETWEEN GOVERNMENTS. 89 
 
 gidering these differences and for the formation of a stronger 
 government. Finally a meeting was called to be held in An- 
 napolis to consist of commissioners from all the States for the 
 purpose of considering their trade relations. Commissioners 
 from only five States actually attended. These commissioners 
 recommended a convention of representatives from all the States 
 "to devise such further provisions as shall appear to them neces- 
 sary to render the constitution of the Federal Government ade- 
 quate to the exigencies of the Union." The commissioners sent 
 copies of this resolution to Congress and to the Legislatures of 
 the respective States. A number of the States approved of the 
 plan and selected delegates before any action was taken by 
 Congress. Later, Congress took the matter up and recommended 
 that such Convention be called to meet at Philadelphpia on May 
 14, 1787. In this resolution Congress declared that the sole 
 purpose of the Convention would be to revise the Articles of 
 Confederation and that all the amendments would have to be 
 submitted to Congress and to all the States. 
 
 The Convention met in Philadelphia and organized on May 25. 
 Every State in the Confederation, except Rhode Island, was 
 represented. This Convention prepared the Constitution of the 
 United States and adjourned September 17, 1787. The Con- 
 stitution thus prepared was not an amendment nor series of 
 amendments to the Articles of Confederation as contemplated by 
 the call of Congress, but an entirely new, independent, and com- 
 plete instrument. It was not submitted to Congress. It was to be 
 submitted for ratification to the several States and it was ex- 
 pressly provided that "The ratification of the Conventions of 
 nine States shall be sufficient for the establishment of this Con- 
 stitution between the States so ratifying the same. ' ' 
 
 The result of the action of the Convention was to propose to 
 the States of the Union an abandonment of the Articles of Con- 
 federation and of the government created thereby and the sub- 
 stitution therefor of the constitution drafted by it, and the govern- 
 ment to be organized and operated thereunder. This proposition 
 was not to be decided by the Congress of the old Confederation 
 but by each of the States acting through Conventions appointed 
 as the several States should determine. 
 
 The new government was to come into existence as to any nine
 
 90 AMERICAN ELEMENTARY LAW. 
 
 States so desiring so soon as it was ratified by that number. 
 The effect upon the other four States, if only nine should ratify, 
 is not expressly declared in the instrument, but as the effect of 
 the ratification by nine is expressly declared to be the establish- 
 ment of the constitution between the States so ratifying the same, 
 and as no State was to be bound by the constitution until it was 
 ratified by it, it is clear that the effect upon non-ratifying States 
 must be to leave them out of the Union. As the coming into the 
 Union of the nine ratifying States would necessarily withdraw 
 them from the old Confederation, that government would be at 
 an end and the several non-ratifying States must have been 
 thrown back to their original status of Unitary States. 
 
 The States acted with reasonable expedition, and within less 
 than a year nine of them had ratified the constitution. There- 
 upon Congress passed an act providing for the organization of 
 the new government. The first "Wednesday in March was set 
 as the time for ■ ' commencing the proceedings under the constitu- 
 tion. ' ' The constitution went into effect on that date, the fourth 
 of March, 1789. At that date all the States tad ratified the con- 
 stitution except North Carolina and Rhode Island, so that the 
 government of the United States was actually organized and 
 operated as among the other eleven States, North Carolina and 
 Rhode Island being, for the time, separate Unitary States. 
 
 Later each of these States ratified the Constitution and came 
 into the Union on the same footing that the other States had. 
 
 The foreging is a very brief outline of the origin, formation, 
 and organization of the United States Government. 
 
 Recapitulation. — The inherent primary sovereignty was in the 
 people of the several States. Each State had been a separate 
 colony dependent upon England. When each colony declared its 
 independence, it assumed all the prerogatives which it had there- 
 tofore exercised and those which the English King and Parliament 
 had exercised over it and thus became a political unit possessing 
 all the power and prerogatives included in the term sovereign. 
 
 Under the pressure of common needs these several States co- 
 operated without any written treaty or compact through the Con- 
 tinental Congress and in this condition waged and practically con- 
 cluded the Revolutionary War. Next, these several States en- 
 tered into the league formed by the written instrument known as
 
 RELATIONS BETWEEN GOVERNMENTS. 91 
 
 tne Articles of Confederation and Perpetual Union. By this 
 compact they surrendered none of their sovereign powers, though 
 they delegated the exercise of some of these powers to the Con- 
 federation into which they had entered. 
 
 Later still, the Confederation proving inefficient, these several 
 States abandoned that form of co-operation and by their own 
 voluntary act, each acting for itself, formed and entered into 
 the present United States of America. 
 
 Constitution of the United States. — The instrument calling this 
 new government into being and determining its nature, and the 
 nature and extent of the powers conferred upon it and the mode 
 of their exercise, is the Constitution of the United States. 
 
 This instrument provides for its own amendment, to be ac- 
 complished in specified ways. This power of amendment has 
 been invoked many times. Fifteen amendments have in fact 
 been made, so that to be entirely accurate at this time we should 
 say that the powers of the United States government are those 
 conferred upon it by the constitution as originally adopted and 
 by the several amendments thereto. Every power thus con- 
 ferred, either expressly or by fair and proper implication, be- 
 longs to, and may lawfully be exercised by that government. 
 
 Powers not thus conferred remain in the respective States and 
 in the people. This was generally conceded at the time the con- 
 stitution was adopted, but to make the matter absolutely clear 
 the Tenth Amendment was adopted. This Amendment declares: 
 "The powers not delegated to the United States by the constitu- 
 tion, nor prohibited by it to the States are reserved to the States 
 respectively or to the people." 
 
 It cannot be doubted that the powers spoken of here are sov- 
 ereign powers. It is equally plain that such of these sovereign 
 powers as exist in the United States were not inherent in it but 
 were delegated. It is equally clear that the powers of the States 
 are recognized as inherent and primary and as continuing to 
 exist in the States or the people unless they have divested them- 
 selves of them by delegation to the United States. This is un- 
 questionably a division of sovereign prerogatives. The States 
 and the people of the States as the possessors of all sovereign 
 powers voluntarily delegated a portion of these powers to the 
 United States and expressly reserved all powers not so delegated.
 
 92 AMERICAN ELEMBNTABY LAW. 
 
 The line of separation between the powers retained by the 
 States and the powers delegated to the United States is drawn in 
 and by the Constitution of the United States, and all issues arising 
 on this subject can be rightfully settled only by the proper con- 
 struction of that instrument. 
 
 The Government of the United States. — The government 
 created by the adoption of the Constitution of the United States 
 and known as the United States of America came into existence 
 on the first Wednesday in March, 1789. This government still 
 exists and is one of two political powers to which all the people 
 within its boundaries are subject. Territorially, it embraces all 
 of the States, including not only the original thirteen trat thirty- 
 three others. It also includes New Mexico, Arizona, and Alaska 
 on the North American Continent, and a number of insular pos- 
 sessions. 
 
 The constitution contemplates the formation and admission of 
 new States into the Union. It is a well settled rule of law that 
 the constitutional rights of each State in the Union must be 
 identical with the constitutional rights of every other State, so as 
 each new State has come into the Union, whether by organization 
 within territory already belonging to the United States, or by 
 annexation, its political status becomes and is identical with that 
 of every other State. So that, the political powers of each of the 
 new States and their relations to the United States are to be 
 tested by the same rules and governed by the same principles as 
 those applicable to the original thirteen States under the Con- 
 stitution and its Amendments. 
 
 The matters within the political authority of the United States 
 are enumerated in the constitution, and the powers which the 
 United States Government can exercise are granted in and flow 
 from that instrument These powers we have enumerated in 
 treating of the United States Government proper. They cover 
 matters of national and international and inter-State concern and 
 are limited to these. It is not necessary for a power to be ex- 
 pressly named in order for the United States Government to 
 possess it. If the effective exercise of a power named properly 
 involves the exercise of some other power as incidental thereto, 
 the existence of the incidental power will be implied. Thus, there 
 is no power expressly conferred upon the Federal Government to
 
 RELATIONS BETWEEN GOVERNMENTS. 93 
 
 charter a corporation, but the government is expressly granted 
 the power to do a great many things which necessarily require 
 the use of money and hence to facilitate its financial activities 
 it is held that the government may charter National Banks. 
 
 So also with the power of eminent domain. There is no 
 express grant of this power to the Federal Government. The 
 words or their equivalent do not occur in the Constitution nor 
 its amendments. The only provision which contains any refer- 
 ence to such power is the declaration in the fifth Amendment 
 that "private property shall not be taken for public use without 
 just compensation." It is, however, held that the United States 
 Government has this power and may exercise it to acquire prop- 
 erty for proper governmental purposes, not only in the District 
 of Columbia, and in the territories, but also within the several 
 States. 
 
 Legislative Powers usually exclusive. — Whether or not the 
 grant of the power to the United States Government makes such 
 power exclusive depends upon the nature of the power and the 
 provisions of the constitution. If the power is legislative in its 
 nature it is almost always exclusive. There are few matters over 
 which Congress and the several States may legislate concurrently ; 
 indeed, it may be doubted whether there are any such matters 
 at this time. In the inception of the government the right of 
 the States to legislate on some matters subject to control by Con- 
 gress was recognized on the ground that the States might act 
 until Congress had done so. This doctrine was of vast practical 
 importance at one time but has gradually become less and less 
 so on account of the increased activity of Congress in the exercise 
 of its legislative powers. It would be difficult now to find a 
 subject within the Legislative power of the United States upon 
 which Congress has not acted. 
 
 An analogous doctrine, that is, whether the withdrawal of 
 Congressional action and control over certain matters may rein- 
 state the State's power of control over these, is still of practical 
 consequence. For illustration, Congress has power to legislate 
 regarding bankruptcy. When the financial situation justifies it 
 it passes bankrupt laws. These of necessity practically super- 
 sede State laws regulating insolvency and the estates of in- 
 solvents. When Congress repeals a bankrupt law, the question
 
 94 AMERICAN ELEMENTARY LAW. 
 
 necessarily arises, What is the effect upon the State laws regard- 
 ing insolvency? Will the State law revive or will it remain in- 
 operative? If it does not revive of its own force, is the State 
 free to re-enact it or some similar law? The practical answer 
 to each of these questions is that the law itself may be enforced 
 without further State legislation and that the State can enact new 
 laws on the subject if it so desires. 
 
 Judicial Powers largely concurrent. — We have already seen 
 that the judicial power of the Federal Government and of the 
 State governments are largely concurrent. There are a few mat- 
 ters to which the judicial powers of the States do not extend. 
 These are matters relating to the ambassadors and representatives 
 of foreign governments and controversies between the States. 
 These are not only within the exclusive power of the Federal Gov- 
 ernment but are within the exclusive jurisdiction of the United 
 States Supreme Court. There are also rights which have no 
 Common Law basis but depend entirely upon Congressional ac- 
 tion, such as patent rights, and rights growing out of United 
 States copyright laws, or bankrupt laws, which are exclusively 
 within the jurisdiction of the Federal courts. The enforcement 
 of all criminal and revenue laws of the Federal Government is 
 exclusively in the power of the United States. So also all cases 
 of admiralty. These embrace most if not all of the matters which 
 are exclusively within the judicial power of the Federal Govern- 
 ment. 
 
 All other matters within that power are also within the judicial 
 power of the States and either Congress or the respective States 
 may create courts to hear and determine them. In point of fact, 
 there are some cases which the Federal courts might lawfully 
 be authorized to try, which cannot now be tried in them because 
 Congress has not given any Federal court jurisdiction over them. 
 Among these are cases involving less than two thousand dollars 
 between citizens of different States, and between citizens of a 
 State and foreign States, citizens, or subjects, or which involve 
 a Federal question. 
 
 Jurisdiction of the State courts is exclusive over all matters 
 not within the judicial power of the Federal Government, or 
 which are not exclusively within that power and which have not 
 been given over to any Federal court for trial, as in the case of
 
 RELATIONS BETWEEN GOVERNMENTS. 95 
 
 suits between citizens of different States involving less than two 
 thousand dollars. As we have seen Congress might create a 
 court to try such cases but has not. Therefore, they must be 
 tried, if at all, in the State courts. The same is true as to cases 
 involving Federal questions or suits between citizens and aliens. 
 
 Executive Towers usually exclusive. — The executive powers of 
 the two governments are exclusive except with regard to co-oper- 
 ation in providing and maintaining State militia and suppressing 
 rebellion and insurrection. 
 
 Taxation. — Both the Federal and State governments have the 
 power of taxation. 
 
 The Federal constitution expressly confers upon Congress the 
 power "to lay and collect taxes, duties, imposts and excises, to 
 pay the debts and to provide for the common defense and general 
 welfare of the United States ; but all duties, imposts and excises 
 shall be uniform throughout the United States. ' ' It further re- 
 quires that "direct taxes shall be apportioned among the several 
 States which may be included within the Union according to their 
 respective numbers. ' ' And practically reiterates this in the pro- 
 vision that "no capitation or direct tax shall be laid unless in 
 proportion to the census or enumeration hereinbefore directed 
 to be taken." "No tax or duty shall be laid on articles exported 
 from any State." 
 
 Within the limits of these provisions Congress may impose 
 such taxes as it sees fit except that it cannot tax the political 
 activities of the State nor the means or instrumentalities through 
 which these are carried on. This last would exempt from tax- 
 ation public property belonging to the State and that belonging 
 to its political subdivisions and the salaries of officers. 
 
 The Federal Constitution, of course, does not grant to the 
 States any power to assess or collect taxes. This power is in- 
 herent in the States and may be exercised by them except so far 
 as it is expressly or impliedly limited by the Federal Constitution. 
 There are two express limitations, each found in Section 10, 
 Article I, of the constitution as follows : " No State shall, without 
 the consent of Congress, lay impost or duties on imports or ex- 
 ports, except what may be absolutely necessary for executing its 
 inspection laws: and the net produce of all duties and imposts, 
 \aid by any State on imports or exports, shall be for the use of
 
 96 AMERICAN ELEMENTARY LAW. 
 
 the Treasury of the United States; and all such laws shall be 
 subject to the revision and control of Congress. 
 
 "No State shall, without the consent of Congress, lay any duty 
 of tonnage." 
 
 In addition to these express limitations upon the taxing power 
 of the State there is another arising by implication. This pro- 
 hibits taxation in any way or to any extent of the property of 
 the Federal Government or the instrumentalities through which 
 it carries out its governmental functions and exercises its powers. 
 
 Relations between the States. 
 
 So far as the States have given over their sovereign prerog- 
 atives to the Federal Government they are of necessity parts of 
 this government and their relations as to these matters are, of 
 course, domestic. 
 
 As to all matters not given over to the Federal Government 
 each State retains its own sovereignty and as to all such matters 
 each is to be regarded as a foreign sovereign and government 
 from the point of view of every other State. There are certain 
 provisions in the Federal Constitution which, as to certain mat- 
 ters, modify or control these relations between the States as to 
 their domestic affairs, but the general rule is as stated above. 
 
 This doctrine was announced early in the history of the govern- 
 ment as to bills of exchange, promissory notes and other con- 
 tracts. It is not, however, limited to matters of contract, but 
 extends throughout the whole range of State sovereignty sub- 
 ject to the limitations indicated above. 
 
 Among the more important of the Constitutional provisions 
 effecting these modifications are the following: 
 
 (1) Art. IV, Sec. 1, "Full faith and credit shall be given in 
 each State to the public acts, records and judicial proceedings of 
 every other State. And the Congress may by general laws pre- 
 scribe the manner in which such acts, records and proceedings 
 shall be proved, and the effect thereof." 
 
 This prevents any State from disregarding or setting aside 
 the public acts, records, and judicial proceedings of any other 
 State. It does not, however, prevent any State or its officers 
 from inquiring into the nature of purported public acts, records 
 and judicial proceedings, or of the power of determining whether
 
 BELATIONS BETWEEN GOVERNMENTS. 97 
 
 they are really public and judicial in their nature. If this fact 
 be established the State must recognize the force and effect of 
 the act, record, or proceeding. 
 
 Congress has prescribed the manner by which such act, record, 
 and proceeding in one State shall be proved in another. 
 
 (2) Art. IV, Sec. 2. "The citizens of each State shall be en- 
 titled to all the privileges and immunities of citizens in the 
 several States." 
 
 Privileges and immunities here do not include political rights 
 but are restricted to those rights and privileges which have no 
 direct relation to or involve the exercise of political power. 
 
 (3) Art. IV, Sec. 2 (Continued). "A person charged in any 
 State with treason, felony, or other crime, who shall flee from 
 justice, and be found in another State, shall on demand of the 
 executive authority of the State from which he fled, be delivered 
 up, to be removed to the State having jurisdiction of the crime." 
 
 This section is the basis of the right of extradition of criminals 
 from one State to another. To be subject to extradition the 
 person must be charged with crime in the State making the de- 
 mand. For this reason the executives upon whom demand for 
 extradition is made have always claimed and exercised the right 
 of inquiring into the sufficiency of the charge as made in the 
 State from which the demand comes. In some later instances, the 
 Governor upon whom the demand has been made, has claimed 
 the right of going beyond the sufficiency of the proceedings 
 making the charge and passing upon the probable guilt or in- 
 nocence of the party and on the motives causing the prosecution. 
 This extension of the scope of inquiry seems unwarranted by the 
 language of the constitution and is probably violative of the 
 guarantee with reference to "full faith and credit of the public 
 acts, records, and judicial proceedings" of other States. 
 
 (4) By the provisions of Article I, Section 10, the States are 
 forbidden to enter into any treaty, alliance, or confederation and 
 without the consent of Congress to enter into any agreement or 
 compact with another State. The first of these inhibitions is ab- 
 solute ; the other simply forbids any agreement or compact with 
 another State in the absence of Congressional consent. "With 
 such consent, an agreement or compact with another State may 
 be made. 
 
 7
 
 98 AMERICAN ELEMENTARY LAW. 
 
 < (5) The same article and section forbids any State, without 
 the consent of Congress to lay any impost or duties on imports 
 or exports for purposes of revenue, or to lay any duty of ton- 
 nage. 
 
 These provisions apply as between the States and are limita- 
 tions upon the power of each as to taxing commerce originating 
 in or destined to another State.
 
 CHAPTER IV. 
 
 EXTRACTS FROM DECISIONS OP U. S. SUPREME COURT. 
 
 For the purpose of supporting the views expressed above we 
 give some extracts from the decisions of the Supreme Court of 
 the United States. 
 
 Gibbons v. Ogden, 9 Wheaton, 1, decided in 1824. 
 
 This case involved a consideration and determination of the 
 powers of Congress under the Inter-State Commerce Clause of 
 the constitution. 
 
 Marshall, C. J., delivered the opinion of the court, and, after 
 stating the case, proceeded as follows: 
 
 "The appellant contends that this decree is erroneous, because 
 the laws which purport to give the exclusive privilege it sustains 
 are repugnant to the Constitution and laws of the United States. 
 
 "They are said to be repugnant: — 
 
 "I. To that clause in the Constitution which authorizes Con- 
 gress to regulate commerce. 
 
 "2. To that which authorizes Congress to promote the progress 
 of science and the useful arts. 
 
 "The State of New York maintains the constitutionality of 
 these laws; and their legislature, their council of revision, and 
 their judges, have repeatedly concurred in this opinion. It is 
 supported by great names — by names which have all the title to 
 consideration that virtue, intelligence and office can bestow. No 
 tribunal can approach this question without feeling a just and 
 real respect for the opinion which is sustained by such authority; 
 but it is the province of this court, while it respects, not to bow 
 to it implicitly; and the judges must exercise, in the examination 
 of the subject, that understanding which Providence has bestowed 
 upon them with that independence which the people of the United 
 States expect from this department of the government. 
 
 "As preliminary to the very able discussions of the Constitu- 
 tion which we have heard from the bar, and as having some in- 
 fluence on its construction, reference has been made to tho
 
 100 AMERICAN ELEMENTARY LAW. 
 
 political situation of these States anterior to its formation. It 
 has been said that they were sovereign, were completely inde- 
 pendent, and were connected with each other only by a league. 
 This is true. But when these allied sovereigns converted their 
 league into a government, when they converted their congress of 
 ambassadors, deputed to deliberate upon common concerns and 
 to recommend measures of general utility, into a legislature em- 
 powered to enact laws upon the most interesting subjects, the 
 whole character in which the States appear underwent a change, 
 the extent of which must be determined by fair consideration of 
 the instrument by which that change was effected. 
 
 "This instrument contains an enumeration of powers expressly 
 granted by the people to their government. It has been said that 
 these powers ought to be construed strictly. But why ought they 
 to be so construed? Is there one sentence in the Constitution 
 which gives countenance to this rule ? In the last of the enumer- 
 ated powers that which grants, expressly, the means for carrying 
 all others into execution, Congress is authorized 'to make all laws 
 which shall be necessary and proper' for the purpose. But this 
 limitation on the means which may be used is not extended to 
 the powers which are conferred ; nor is there one sentence in the 
 Constitution which has been pointed out by the gentlemen of the 
 bar, or which they have been able to discern, that prescribes this 
 rule. We do not, therefore, think ourselves justified in adopting 
 it. "What do gentlemen mean by strict construction ? If they con- 
 tend only against that enlarged construction which would extend 
 words beyond their natural and obvious import, we might ques- 
 tion the application of the term, but should not controvert the 
 principle. If they contend for that narrow construction which, 
 in support of some theory not found in the Constitution, would 
 deny to the government that which the words of the grant, as 
 usually understood, import, and which are consistent with the 
 general views and objects of the instrument — for that narrow con- 
 struction which would cripple the government and render it un- 
 equal to the objects for which it is declared to be instituted and 
 to which the powers given, as fairly understood, render it com- 
 petent — then we can not perceive the propriety of this strict 
 construction, nor adopt it as a rule by which the Constitution is 
 to be expounded. Aa men whose intentions require no conceal-
 
 UNITED STATES SUPREME COURT DECISIONS. 101 
 
 ment generally employ the words which most directly and aptly 
 express the ideas they intend to convey, the enlightened patriots 
 who framed our Constitution and the people who adopted it must 
 have been understood to have employed words in their natural 
 sense and to have intended what they have said. If, from the im- 
 perfection of human language, there should be serious doubts 
 respecting the extent of any given power, it is a well settled rule 
 that the objects for which it was given, especially when those ob- 
 jects are expressed in the instrument itself, should have great in- 
 fluence in the construction. "We know of no reason for exclud- 
 ing this rule from the present case. The grant does not convey 
 power which might be beneficial to the grantor, if retained by 
 himself, or which can inure solely to the benefit of the grantee ; 
 but is an investment of power for the general advantage in the 
 hands of agents selected for that purpose, which power can never 
 be exercised by the people themselves, but must be placed in the 
 hands of agents, or lie dormant. We know of no rule for con- 
 struing the extent of such powers other than is given by the lan- 
 guage of the instrument which confers them, taken in connec- 
 tion with the purposes for which they were conferred." • • • 
 "In our complex system, presenting the rare and difficult 
 scheme of one general government whose action extends over the 
 whole, but which possesses only certain enumerated powers, and 
 of numerous State governments, which retain and execute all 
 powers not delegated to the Union, contests respecting power must 
 arise. Were it even otherwise, the measures taken by the re- 
 spective governments to execute their acknowledged powers would 
 often be of the same description, and might sometimes interfere. 
 This, however, does not prove that the one is exercising, or has the 
 right to exercise, the powers of the other." 
 
 McCulloch v. Maryland, 4 Wheat. 416, decided in 1819. 
 
 This case involved two main questions : 
 
 First. Did Congress have the implied power to incorporate a 
 bank to faciliate the transaction of the financial affairs of the 
 United States? 
 
 Second, If Congress did have such power, could the operations 
 of a branch of this bank located in the State of Maryland be 
 taxed by that State I
 
 102 AMERICAN ELEMENTARY LAW. 
 
 The court answered the first question in the affirmative and the 
 second in the negative. Portions of the opinion on each branch 
 of the case are given. 
 
 On the first point, among other things, the court says: 
 
 "The government of the Union, then (Whatever may be the 
 influence of this fact on the case) is, emphatically, and truly, a 
 government of the people. In form and in substance it emanates 
 from them. Its powers are granted by them, and are to be exer- 
 cised directly on them, and for their benefit. 
 
 ' ' This government is acknowledged by all to be one of enumer- 
 ated powers. The principle, that it can exercise only the powers 
 granted to it, would seem too apparent to have required it to be 
 enforced by all those arguments which its enlightened friends, 
 while it is was pending before the people, found it necessary to 
 urge. That principle is now universally admitted. But the 
 question respecting the extent of the powers actually granted, 
 is perpetually arising, and will probably continue to arise, as 
 long as our system shall exist. 
 
 "In discussing these questions, the conflicting powers of the 
 general and state governments must be brought into view, and 
 the supremacy of their respective laws, when they are in opposi- 
 tion must be settled. 
 
 "If any one proposition could command the universal assent 
 of all mankind, we might expect it would be this — that the gov : 
 eminent of the Union, though limited in its powers, is supreme 
 within its sphere of action. This would seem to result neces- 
 sarily from its nature. It is the government of all; its powers 
 are delegated by all; it represents all, and acts for all. Though 
 any one State may be willing to control its operations, no State 
 is willing to allow others to control them. The nation, on those 
 subjects on which it can act, must necessarily bind its component 
 parts. But this question is not left to mere reason; the people 
 have in express terms, decided it by saying, 'this constitution, and 
 the laws of the United States, which shall be made in pursuance 
 thereof,' 'shall be the supreme law of the land,' and by requir- 
 ing that the members of the state legislatures, and the officers of 
 the executive and judicial departments of the states shall take 
 the oath of fidelity to it. 
 
 "The Government of the United States, then, though limited 
 in its powers, is supreme ; and its laws, when made in pursuance
 
 UNITED STATES SUPREME COURT DECISIONS. 103 
 
 of the constitution, form the supreme law of the land, 'anything 
 in the constitution or laws of any state to the contrary notwith- 
 standing. ' 
 
 "Among the enumerated powers, we do not find that of estab- 
 lishing a bank or creating a corporation. But there is no phrase 
 in the instrument which, like the articles of confederation, ex- 
 cludes incidental or implied powers; and which requires that 
 everything granted shall be minutely and expressly described. 
 Even the 10th amendment, which was framed for the purpose 
 of quieting the excessive jealousies which had been excited, omits 
 the word 'expressly,' and declares only that the powers 'not 
 delegated to the United States, nor prohibited to the states, are 
 reserved to the states or to the people ; ' thus leaving the question 
 whether the particular power which may become the subject of 
 contest, has been delegated to the one government, or prohibited 
 to the other, to depend on a fair construction of the whole instru- 
 ment. The men who drew and adopted this amendment had ex- 
 perienced the embarrassments resulting from the insertion of 
 this word into the articles of confederation, and probably omitted 
 it to avoid those embarrassments. A constitution, to contain an 
 accurate detail of all the subdivisions of which its great powers 
 will admit, and of all the human means by which they may be 
 carried into execution, would partake of the prolixity of a legal 
 code, and could scarcely be embraced by the human mind. It 
 would probably never be understood by the public. Its nature, 
 therefore, requires, that only its great outlines should be marked, 
 its important objects designated, and the minor ingredients which 
 compose those objects be deduced from the nature of the objects 
 themselves. That this idea was entertained by the framers of 
 the American constitution, is not only to be inferred from the 
 nature of the instrument, but from the language. Why else 
 were some of the limitations, found in the ninth section of the 
 1st article, introduced ? It is also, in some degree, warranted by 
 their having omitted to use any restrictive term which might pre- 
 vent its receiving a fair and just interpretation. In consider- 
 ing this question, then, we must never forget that it is a constitu- 
 tion we are expounding. 
 
 "Although, among the enumerated powers of the government, 
 we no not find the word 'bank' or 'incorporation,' we find the
 
 104 AMERICAN ELEMENTARY LAW. 
 
 great powers to lay and collect taxes ; to borrow money ; to regu- 
 late commerce; to declare and conduct a war; and to raise and 
 support armies and navies. The sword and the purse, all the 
 external relations, and no inconsiderable portion of the industry 
 of the nation, are entrusted to its government. It can never be 
 contended that these vast powers draw after them others of 
 inferior importance, merely because they are inferior. Such an 
 idea can never be advanced. But it may with great reason be 
 contended, that a government, entrusted with such ample powers, 
 on the due execution of which the happiness and prosperity of 
 the nation so vitally depends, must also be entrusted with ample 
 means for their execution. The power being given, it is the in- 
 terest of the nation to facilitate its execution. It can never be 
 their interest, and cannot be presumed to have been their in- 
 tention, to clog and embarrass its execution by withholding the 
 most appropriate means. Throughout this vast republic, from 
 the St. Croix to the Gulf of Mexico, from the Atlantic to the 
 Pacific, revenue is to be collected and expended, armies are to 
 be marched and supported. The exigencies of the nation may 
 require that the treasure raised in the north should be transported 
 to the south, that raised in the east conveyed to the west, or that 
 this order should be reversed. Is that construction of the con- 
 stitution to be preferred which would render these operations 
 difficult, hazardous, and expensive? Can we adopt that con- 
 struction (unless the words imperiously require it) which would 
 impute to the framers of that instrument, when granting these 
 powers for the public good, the intention of impeding their exer- 
 cise by withholding a choice of means? If, indeed, such be the 
 mandate of the constituton, we have only to obey ; but that instru- 
 ment does not profess to enumerate the means by which the 
 powers it confers may be executed; nor does it prohibit the 
 creation of a corporation, if the existence of such a being be es- 
 sential to the exercise of those powers. It is, then, the subject 
 of fair inquiry, how far such means may be employed. It is 
 not denied that the powers given to the government imply the 
 ordinary means of execution. That for example of raising rev- 
 enue, and applying it to national purposes, is admitted to imply 
 the power of conveying the money from place to place, as the 
 exigencies of the nation may require, and of employing the usual
 
 UNITED STATES SUPREME COURT DECISIONS. 105 
 
 means of conveyance. But it is denied, that the government has 
 its choice of means ; or, that it may employ the most convenient 
 means, if, to employ them it be necessary to erect a corporation. 
 
 1 ' On what foundation does this argument rest ? On this alone : 
 The power of creating a corporation is one appertaining to 
 sovereignty, and is not expressly conferred on Congress. This 
 is true. But all legislative powers appertain to sovereignty. The 
 original power of giving the law on any subject whatever, is a 
 sovereign power; and if the government of the Union is re- 
 strained from creating a corporation, as a means for performing 
 its functions, on the single reason that the creation of a corpora- 
 tion is an act of sovereignty; if the sufficiency of this reason be 
 acknowledged, there would be some difficulty in sustaining the 
 authority of Congress to pass other laws for the accomplishment 
 of the same objects. 
 
 1 ' The government which has a right to do an act, and has im- 
 posed on it the duty of performing that act, must, according to 
 the dictates of reason, be allowed to select the means ; and those 
 who contend that it may not select any appropriate means, that 
 one particular mode of effecting the object is excepted, take upon 
 themselves the burden of establishing that exception. 
 
 "The creation of a corporation, it is said, appertains to sover- 
 eignty. This is admitted. But to what portion of sovereignty 
 does it appertain ? Does it belong to one more than to another ? 
 In America, the powers of sovereignty are divided between the 
 government of the Union, and those of the States. They are each 
 sovereign, with respect to the objects committed to it, and neither 
 sovereign with respect to the objects committed to the other. We 
 cannot comprehend that train of reasoning which would main- 
 tain that the extent of power granted by the people is to be ascer- 
 tained, not by the nature and terms of the grant, but by its date. 
 Some State constitutions were formed before, some since that of 
 the United States. "We cannot believe that their relation to each 
 other is in any degree dependant upon this circumstance. Their 
 respective powers must, we think, be precisely the same as if 
 they had been formed at the same time. Had they been formed 
 at the same time, and had the people conferred on the general 
 government the power contained in the constitution, and on the 
 states the whole residuum of power, would it have been asserted
 
 106 AMERICAN ELEMENTARY LAW. 
 
 that the government of the Union was not sovereign with respect 
 to those objects which were entrusted to it, in relation to which 
 the laws were declared to be supreme? If this could not have 
 been asserted, we cannot well comprehend the process of reason- 
 ing which maintains that a power appertaining to sovereignty 
 cannot be connected with that vast portion of it which is granted 
 to the general government, so far as it is calculated to subserve 
 the legitimate objects of that government. The power of creat- 
 ing a corporation, though appertaining to sovereignty, is not, like 
 the power of making war, or levying taxes, or of regulating com- 
 merce, a great substantive and independent power, which cannot 
 be implied as incidental to other powers, or used as a means of 
 executing them. It is never the end for which other powers are 
 exercised, but a means by which other objects are accom- 
 plished." * * * 
 
 "But the constitution of the United States has not left the 
 right of Congress to employ the necessary means for the execu- 
 tion of the powers conferred on the government to the general 
 reasoning. To its enumeration of powers is added that of making 
 'all laws which shall be necessary and proper, for carrying into 
 execution the foregoing powers, and all other powers vested by 
 this constitution, in the government of the United States, or in 
 any department thereof.' 
 
 "The counsel for the state of Maryland have urged , various 
 arguments, to prove that this clause, though in terms a grant of 
 power, is not so in effect; but is really restrictive of the general 
 right, which might otherwise be implied, of selecting means for 
 executing the enumerated powers. 
 
 "In support of this proposition, they have found it necessary 
 to contend, that this clause was inserted for the purpose of con- 
 ferring on Congress the power of making laws. That, without 
 it, doubts might be entertained whether Congress could exercise 
 its powers in the form of legislation. 
 
 "But could this be the object for which it was inserted T A 
 government is created by the people having legislative, executive, 
 and judicial powers. Its legislative powers are vested in a Con- 
 gress, which is to consist of a senate and house of representatives. 
 Each house may determine the rules of its proceedings ; and it is 
 declared that every bill which shall have passed both houses,
 
 UNITED STATES SUPREME COURT DECISIONS. 107 
 
 shall, before it becomes a law, be presented to the President ot 
 the United States. The 7th section describes the course of pro- 
 ceedings, by which a bill shall become a law; and, then, the 8th 
 section enumerates the powers of Congress. Could it be neces- 
 sary to say that a legislature should exercise legislative powers 
 in the shape of legislation ? t After allowing each house to pre- 
 scribe its own course of proceeding, after describing the manner 
 in which a bill should become a law, would it have entered into 
 the mind of a single member of the convention that an express 
 power to make laws was necessary to enable the legislature to 
 make them ? That a legislature endowed with legislative powers, 
 can legislate, is a proposition too self-evident to have been ques- 
 tioned. 
 
 "But the argument on which most reliance is placed, is drawn 
 from the peculiar language of the clause. Congress is not em- 
 powered by it to make all laws, which may have relation to the 
 powers conferred on the government, but such only as may be 
 'necessary and proper' for carrying them into execution. The 
 word 'necessary' is considered as controlling the whole sentence, 
 and as limiting the right to pass laws for the execution of granted 
 powers, to such as are indispensable and without which the power 
 would be nugatory. That it excludes the choice of means, and 
 leaves to Congress, in each case, that only which is most direct and 
 simple. 
 
 "Is it true that this is the sense in which the word 'necessary' is 
 always used ? Does it always import an absolute physical neces- 
 sity, so strong that one thing, to which another may be termed 
 necessary, cannot exist without that other? We think it does 
 not. If reference be had to its use, in the common affairs of the 
 world, or in approved authors, we find that it frequently imports 
 no more than that one thing is convenient, or useful, or essential 
 to another. To employ the means necessary to an end, is gener- 
 ally understood as employing any means calculated to produce 
 the end, and not as being confined to those single means, without 
 which the end would be entirely unattainable, Such is the char- 
 acter of human language, that no word conveys to the mind, in all 
 situations, one single definite idea; and nothing is more com- 
 mon than to use words in a figurative sense. Almost all com- 
 positions contain words, which, taken in their rigorous sense.
 
 108 AMERICAN ELEMENTARY LAW. 
 
 would convey a meaning different from that which is obviously 
 intended. It is essential to just construction, that many words 
 which import something excessive should be be understood in a 
 more mitigated sense — in that sense which common usage justi- 
 fies. The word 'necessary' is of this description. It has not a 
 fixed character peculiar to itself. It admits of all degrees of 
 comparison ; and is often connected with other words, which in- 
 crease or diminish the impression the mind receives of the urgency 
 it imports. A thing may be necessary, very necessary, abso- 
 lutely or indispensably necessary. To no mind would the same 
 idea be conveyed by these several phrases. This comment on the 
 word is well illustrated by the passage cited at the bar, from the 
 10th section of the 1st article of the constitution. It is, we think, 
 impossible to compare the sentence which prohibits a state from 
 laying ' imposts or duties on imports or exports, except what may 
 be absolutely necessary for executing its inspection laws,' with 
 that which authorizes Congress 'to make all laws which shall be 
 necessary and proper for carrying into execution' the powers 
 of the general government without feeling a conviction that the 
 convention understood itself to change materially the meaning 
 of the word 'necessary' by prefixing the word 'absolutely.' 
 This word, then, like others, is used in various senses ; and, in its 
 construction, the subject, the context, the intention of the person 
 using them, are all to be taken into view. 
 
 "Let this be done in the case under consideration. The sub- 
 ject is the execution of those great powers on which the welfare 
 of a nation essentially depends. It must have been the intention 
 of those who gave these powers, to insure, as far as human pru- 
 dence could insure, their beneficial execution. This could not be 
 done by confiding the choice of means to such narrow limits as 
 not to leave it in the power of Congress to adopt any which might 
 be appropriate, and which were conducive to that end. This pro- 
 vision is made in a constitution intended to endure for ages, and, 
 consequently, to be adapted to the various crises of human affairs. 
 To have prescribed the means by which the government should, in 
 all future time, execute its powers, would have been to change, 
 entirely, the character of the instrument, and give it the prop- 
 erties of a legal code. It would have been as unwise to provide, 
 by immutable rules, for exigencies which, if foreseen at all, must
 
 UNITED STATES SUPREME COURT DECISIONS* 109 
 
 have been seen dimly, and which can be best provided for when 
 they occur. To have declared that the best means shall not be 
 used, but those alone without which the power given would be 
 nugatory, would have been to deprive the legislature of the capa- 
 city to avail itself of experience, to exercise its reason, and to 
 accommodate its legislation to circumstances." 
 
 Having answered the first question in the affirmative the opin- 
 ion proceeds with the second in part as follows: 
 
 "2. Whether the State of Maryland may, without violating the 
 Constitution, tax that branch ? 
 
 "That the power of taxation is one of vital importance; that 
 it is not abridged by the grant of a similar power to the Govern- 
 ment of the Union, and that it is to be concurrently exercised 
 by the two governments, are truths which have never been denied. 
 But such is the paramount character of the Constitution that its 
 capacity to withdraw any subject from the action of even this 
 power is admitted. The States are expressly forbidden to lay 
 any duties on imports or exports, except what may be absolutely 
 necessary for executing their inspection laws. If the obligation 
 of this prohibition must be conceded — if it may restrain a State 
 from the exercise of its taxing power on imports and exports — 
 the same paramount character would seem to restrain, as it cer- 
 tainly may restrain, a State from such exercise of this power as 
 is, in its nature, incompatible with, and repugnant to, the consti- 
 tutional laws of the Union. A law absolutely repugnant to an- 
 other as entirely repeals that other as if express terms of repeal 
 were used. 
 
 ' ' On this ground the counsel for the bank place its claim to be 
 exempted from the power of a State to tax its operations. There 
 is no express provision for the case, but the claim has been sus- 
 tained on a principle which so entirely pervades the Constitution, 
 is so intermixed with the materials which compose it, so inter- 
 woven with its web, so blended with its texture, as to be incapable 
 of being separated from it without rending it into shreds. 
 
 "This great principle is, that the Constitution and the laws 
 made in pursuance thereof are supreme; that they control the 
 constitutions and laws of the respective States, and can not be 
 controlled by them. From this, which may be almost termed an 
 axiom, other propositions are deduced as corollaries, on the truth
 
 110 AMERICAN ELEMENTARY LAW. 
 
 or error of which, and on their application to this case, the cause 
 has been supposed to depend. These are: (1) That a power to 
 create implies a power to preserve; (2) that a power to destroy, 
 if wielded by a different hand, is hostile to, and incompatible 
 with, these powers to create and preserve; (3) that where this 
 repugnancy exists, that authority which is supreme must control, 
 not yield to, that over which it is supreme. 
 
 "These propositions, as abstract truths, would, perhaps, never 
 be controverted. Their application to this case, however> has 
 been denied; and, both in maintaining the affirmative and the 
 negative, a splendor of eloquence and strength of argument sel- 
 dom, if ever, surpassed have been displayed. 
 
 "The power of Congress to create, and of course to continue, 
 the bank, was the subject of the preceding part of this opinion; 
 and is no longer to be considered as questionable. 
 
 "That the power of taxing it by the States may be exercised 
 so as to destroy it, is too obvious to be denied. But taxation is 
 said to be an absolute power, which acknowledges no other limits 
 than those expressly prescribed in the Constitution, and, like 
 sovereign power of every other description, is trusted to the 
 discretion of those who use it. But the very terms of this argu- 
 ment admit that the sovereignty of the State, in the article on 
 taxation itself, is subordinate to, and may be controlled by, the 
 Constitution of the United States. How far it has been con- 
 trolled by that instrument must be a question of construction. In 
 making this construction, no principle not declared can be ad- 
 missible which would defeat the legitimate operations of a su- 
 preme government. It is of the very essence of supremacy to 
 remove all obstacles to its action within its own sphere, and so 
 to modify every power vested in subordinate governments as to 
 exempt its own operations from their own influence. This effect 
 need not be stated in terms. It is so involved in the declaration 
 of supremacy, so necessarily implied in it, that the expression of 
 it could not make it more certain. We must, therefore, keep 
 it in view while construing the Constitution. 
 
 "The argument on the part of the State of Maryland is, not 
 that the States may directly resist a law of Congress, but that they 
 may exercise their acknowledged powers upon it, and that the
 
 UNITED STATES SUPREME COURT DECISIONS. Ill 
 
 Constitution leaves them this right, in the confidence that they 
 will not abuse it. 
 
 ''Before we proceed to examine this argument, and to subject 
 it to the test of the Constitution, we must be permitted to bestow 
 a few considerations on the nature and extent of this original 
 right of taxation, which is acknowledged to remain with the 
 States. It is admitted that the power of taxing the people and 
 their property is essential to the very existence of the govern- 
 ment, and may be legitimately exercised, on the objects to which 
 it is applicable, to the utmost extent to which the government 
 may choose to carry it. The only security against the abuse of 
 this power is found in the structure of the government itself. 
 In imposing a tax, the legislature acts upon its constituents. 
 This is in general sufficient security against erroneous and op 
 pressive taxation. 
 
 "The people of a State, therefore, give to their government a 
 right of taxing themselves and their property, and as the 
 exigencies of government can not be limited, they prescribe no 
 limits to the exercise of this right, resting constantly on the in- 
 terest of the legislator, and on the influence of the constituents 
 over their representatives, to guard them against its abuse. But 
 the means employed by the Union have no such security, nor is 
 the right of a State to tax them sustained by the same theory. 
 Those means are not given to the people of a particular State, 
 not given by the constituents of the legislature which claims the 
 right to tax them, but by the people of all the States. They are 
 given by all, for the benefit of all ; and, upon this theory, should 
 be subjected to that government only which belongs to all. 
 
 "It may be objected to this definition that the power of tax- 
 ation is not confined to the people and property of a State — it 
 may be exercised upon every object brought within its jurisdic- 
 tion. 
 
 "This is true. But to what source do we trace this right? 
 It is obvious that it is an incident of sovereignty, and is co- 
 extensive with that to which it is an incident. All subjects over 
 which the sovereign power of a State extends are objects of tax- 
 ation ; but those over which it does not extend are, upon the sound- 
 est principles, exempt from taxation. This proposition may al- 
 most be pronounced self-evident.
 
 112 AMERICAN ELEMENTARY LAW. 
 
 ' ' The sovereignty of a State extends to everything which exists 
 by its own authority or is introduced by its permission. But does 
 it extend to those means which are employed by Congress to 
 carry into execution powers conferred upon that body by the 
 people of the United States? We think it demonstrable that 
 it does not. Those powers are not given by the people of a single 
 State. They are given, by the people of the United States, to a 
 government whose laws, made in pursuance of the Constitution, 
 are declared to be supreme. Consequently, the people of a single 
 State can not confer a sovereignty which will extend over them. 
 
 "If we measure the power of taxation residing in a State by the 
 extent of sovereignty which the people of a single State possess, 
 and can confer on its government, we have an intelligible stand- 
 ard, applicable to every case to which the power may be applied. 
 We have a principle which leaves the power of taxing the peo- 
 ple and property of a State unimpaired ; which leaves to a State 
 the command of all its resources, and which places beyond its 
 reach all those powers which are conferred by the people of the 
 United States on the government of the Union, and all those 
 means which are given for the purpose of carrying those powers 
 into execution. We have a principle which is safe for the States, 
 and safe for the Union. We are relieved, as we ought to be, from 
 clashing sovereignty; from interfering powers; from a repug- 
 nancy between a right in one government to pull down what there 
 is an acknowledged right in another to build up; from the in- 
 compatibility of a right in one government to destroy what there 
 is a right in another to preserve. We are not driven to the per- 
 plexing inquiry, so unfit for the judicial department: What 
 degree of taxation is the legitimate use, and what degree may 
 amount to the abuse of the power ? The attempt to use it on the 
 means employed by the government of the Union, in pursuance 
 of the Constitution, is itself an abuse, because it is an usurpation 
 of a power, which the people of a State can not give. 
 
 "We find, then, on just theory, a total failure of this original 
 right to tax the means employed by the government of the Union 
 for the execution of its powers. The right never existed, and the 
 question whether it has been surrendered can not arise. 
 
 "But, waiving this theory for the present, let us resume the
 
 UNITED STATES SUPREME COURT DECISIONS. 113 
 
 inquiry whether this power can be exercised by the respective 
 States, consistently with a fair construction of the Constitution ? 
 
 1 ' That the power to tax involves the power to destroy ; that the 
 power to destroy may defeat and render useless the power to 
 create; that there is a plain repugnance in conferring on one 
 government a power to control the constitutional measures of 
 another, which other, with respect to those very measures, is 
 declared to be supreme over that which exerts the control, are 
 propositions not to be denied. But all inconsistencies are to be 
 reconciled by the magic of the word confidence. Taxation, it is 
 said, does not necessarily and unavoidably destroy. To carry 
 it to the excess of destruction would be an abuse, to presume which 
 would banish that confidence which is essential to all government. 
 
 ' ' But is this a case of confidence ? Would the people of any one 
 State trust those of another with a power to control the most 
 insignificant operations of their State government? We know 
 they would not. Why, then, should we suppose that the people 
 of any one State should be willing to trust those of another with 
 a power to control the operations of a government to which they 
 have confided their most important and most valuable interests? 
 In the legislature of the Union alone are all represented. The 
 legislature of the Union alone, therefore, can be trusted by the 
 people with the power of controlling measures which concern all, 
 in the confidence that it will not be abused. This, then, is not 
 a case of confidence, and we must consider it as it really is. 
 
 "If we apply the principle for which the State of Maryland 
 contends to the Constitution generally, we shall find it capable 
 of changing totally the character of that instrument. We shall 
 find it capable of arresting all the measures of the government 
 and of prostrating it at the feet of the States. The American 
 people have declared their Constitution, and the laws made in 
 pursuance thereof, to be supreme ; but this principle would trans- 
 fer the supremacy, in fact, to the State. 
 
 "If the States may tax one instrument, employed by the gov- 
 ernment in the exercise of its powers, they may tax any and 
 every other instrument. They may tax the mail; they may tax 
 the mint; they may tax patent rights; they may tax the papers 
 of the custom-house; they may tax judicial process; they may 
 tax all the means employed by the government to an excess which 
 8
 
 114 AMERICAN ELEMENTARY LAW. 
 
 would defeat all the ends of government. This was not intended 
 by the American people. They did not design to make their 
 government dependent on the States. 
 
 "Gentlemen say they do not claim the right to extend State 
 taxation to these objects. They limit their pretensions to prop- 
 erty. But on what principle is this distinction made? Those 
 who make it have furnished no reason for it, and the principle 
 for which they contend denies it. They contend that the power 
 of taxation has no other limit than is found in the tenth section 
 of the first article of the Constitution; that, with respect to 
 everything else, the power of the States is supreme and admits 
 of no control. If this be true, the distinction between property 
 and other subjects to which the power of taxation is applicable 
 is merely arbitrary, and can never be sustained. This is not all. 
 If the controlling power of the States be established — if their 
 supremacy as to taxation be acknowledged — what is to restrain 
 their exercising this control in any shape they may please to 
 give it? Their sovereignty is not confined to taxation. That is 
 not the only mode in which it might be displayed. The question 
 is, in truth, a question of supremacy; and if the right of the 
 States to tax the means employed by the general government be 
 conceded, the declaration that the Constitution and the laws made 
 in pursuance thereof shall be the supreme law of the land is 
 empty and unmeaning declamation." 
 
 Veazie Bank v. Fenno, 8 Wall. 533, decided December 13, 1869. 
 
 This case involved the power of the United States Government 
 to tax bills issued by State banks. 
 
 Among other objections to the law it was urged that as the 
 bank was created by the State and issued bills under a franchise 
 from the State, that the doctrine announced in McCulloch v. 
 Maryland would apply and the tax was consequently unconstitu- 
 tional. In passing upon this point the court uses the following 
 language : 
 
 "Is it, then a tax on a franchise granted by a State which 
 Congress, upon any principle exempting the reserved powers of 
 the State from impairment by taxation, must be held to have no 
 authority to lay and collect? 
 
 "We do not say that there may not be such a tax. It may be 
 admitted that the reserved rights of the States, such as the right
 
 UNITED STATES SUPREME COURT DECISIONS. 115 
 
 to pass laws, to give effect to laws through executive action, to 
 administer justice through the courts, and to employ all necessary 
 agencies for legitimate purposes of State Government, are not 
 proper subjects of the taxing power of Congress. But it cannot 
 be admitted that franchises granted by a State are necessarily 
 exempt from taxation; for franchises are property, often very 
 valuable and productive property; and when not conferred for 
 the purpose of giving effect to some reserved power of a State, 
 seem to be as properly objects of taxation as any other property. 
 "But in the case before us the object of taxation is not the 
 franchise of the bank, but property created, or contracts made 
 and issued under the franchise, or power to issue bankbills. A 
 railroad company, in the exercise of its corporate franchises, 
 issues freight receipts, bills of lading, and passenger tickets; 
 and it cannot be doubted that the organization of railroads is 
 quite as important to the State as the organization of banks. 
 But it will hardly be questioned that these contracts of the com- 
 pany are objects of taxation within the powers of Congress, and 
 not exempted by any relation to the State which granted the 
 charter of the railroad. And it seems difficult to distinguish 
 the taxation of notes issued for circulation from the taxation of 
 these railroad contracts. Both descriptions of contracts are 
 means of profit to the corporations which issue them ; and both, 
 as we think, may properly be made contributory to the public 
 revenue." 
 
 Buffington v. Day, 11 Wall. 113, decided April 3, 1871. 
 
 This case involves the power of the United States to tax the 
 salary of a State officer. Mr. Justice Nelson delivered the opinion 
 of the court : 
 
 "This is a writ of error to the Circuit Court of the United 
 States for the District of Massachusetts. 
 
 "Day, the plaintiff, in the court below and the defendant in 
 error, brought a suit against Buffington, the Collector of the 
 Internal Revenue, to recover back $61.51 and interest, assessed 
 upon his salary in the years 1866 and 1867, as Judge of the Court 
 of Probate and Insolvency for the County of Barnstable, State 
 of Massachusetts, paid under protest. The salary is fixed by 
 law and payable out of the Treasury of the State. The case was 
 submitted to the court below on an agreed statement of the facts,
 
 116 AMERICAN ELEMENTARY LAW. 
 
 upon which judgment was rendered for the plaintiff. It is now 
 here for re-examination. It presents the question, whether or 
 uot it is competent for Congress, under the Constitution of the 
 United States, to impose a tax upon the salary of a judicial officer 
 of a State. 
 
 "In the case of Dobbins v. Erie Co., 16 Pet. 435, it was de- 
 • cided that it was not competent for the Legislature of a State to 
 levy a tax upon the salary or emoluments of an officer of the 
 United States. The decision was placed mainly upon the ground 
 that the officer was a means or instrumentality employed for 
 carrying into effect some of the legitimate powers of the Govern- 
 ment, which could not be interfered with by taxation or other- 
 wise by the States, and that the salary or compensation of the 
 officer was inseparably connected with the office ; that if the officer, 
 as such, was exempt, the salary assigned for his support or 
 maintenance while holding the office, was also, for like reasons, 
 equally as exempt. 
 
 "The cases of McCulloch v. Maryland, 4 Wheat. 316, and 
 Weston v. Charleston, 2 Pet., 449, were referred to as settling the 
 principle that governed the case, namely: 'That the State govern- 
 ments cannot lay a tax upon the constitutional means employed 
 by the Government of the Union to execute its constitutional 
 powers. ' 
 
 "The soundness of this principle is happily illustrated by the 
 Chief Justice in McCulloch v. Md., 'If the States,' he observes, 
 'May tax one instrument employed by the government in the 
 execution of its powers, they may tax any and every other in- 
 strument. They may tax the mail ; they may tax the mint ; they 
 may tax patent rights; they may tax judicial process; they may 
 tax all the means employed by the government to an excess w r hich 
 would defeat all the ends of government.' 'This,' he observes, 
 4 was not intended by the American people. They did not design 
 to make their government dependent on the States.' Again, 
 p. 427, 'That the power of taxing it (the bank) by the States may 
 be exercised so far as to destroy it, is too obvious to be denied.' 
 And in Weston v. Charleston, he observes: 'If the right to impose 
 the tax exists, it is a right which, in its nature, acknowledges no 
 limits. It may be carried to any extent within the jurisdiction 

 
 UNITED STATES SUPREME COURT DECISIONS. 117 
 
 of the State or corporation which imposes it which the will of 
 each corporation and State may prescribe.' 
 
 1 ' It is conceded in the case of McCulloch v. Md. that the p ower 
 of taxation by the States was not abridged by the grant of a 
 similar power to the Government of the Union ; that it was re- 
 tained by the States, and that the power is to be concurrently 
 exercised by the two governments; and also that there is no 
 express constitutional prohibition on the States against taxing 
 the means or instrumentalities of the General Government. But, 
 it was held, and we agree properly held, to be prohibited by 
 necessary implication; otherwise, the States might impose taxa- 
 tion to an extent that would impair, if not wholly defeat, the 
 operation of the federal authorities when acting in their ap- 
 propriate sphere. 
 
 "These views, we think, abundantly establish the soundness 
 of the decision of the case of Dobbins v. Erie Co. (supra) , which 
 determined that the States were prohibited, upon the proper 
 construction of the Constitution, from taxing the salary or 
 emoluments of an officer of the Government of the United States. 
 And we shall now proceed to show that, upon the same con- 
 struction of that instrument, and for like reasons, that the gov- 
 ernment is prohibited from taxing the salary of the judicial 
 officer of a State. 
 
 "It is a familiar rule of construction of the Constitution of 
 the Union, that the sovereign powers vested in the State govern- 
 ments by their respective constitutions, remained unaltered and 
 unimpaired except so far as they were granted to the Govern- 
 ment of the United States. That the intention of the framers of 
 the Constitution in this respect might not be misunderstood, this 
 rule of interpretation is expressly declared in the 10th Article 
 of the amendments, namely: 'The powers not delegated to the 
 United States are reserved to the States respectively, or to the 
 people.' The Government of the United States, therefore, can 
 claim no powers which are not granted to it by the Constitution, 
 and the powers actually granted must be such as are expressly 
 given, or given by necessary implication. 
 
 "The General Government, and the States, although both exist 
 within the same territorial limits, are separate and distinct
 
 118 AMERICAN ELEMENTARY LAW. 
 
 sovereignties, acting separately and independent of each other, 
 within their respective spheres. The former, in its appropriate 
 sphere, is supreme; but the States within the limits of their 
 powers not granted, or, in the language of the 10th Amendment, 
 ' reserved ' are as independent of the General Government as that 
 government within its sphere is independent of the States. 
 
 "The relations existing between the two governments are well 
 stated by the present Chief Justice in the case of Lane Co. v. 
 Oregon, 7 Wall. 76 (74 U. S. XIX, 104). 'Both the States and 
 the United States, ' he observed, ' existed before the Constitution. 
 The people, through that instrument, established a more perfect 
 Union by substituting a national government, acting with ample 
 powers directly upon the citizens, instead of the Confederate 
 Government, which acted with powers, greatly restricted, only 
 upon the States. But, in many of the articles of the Constitu- 
 tion, the necessary existence of the States, and within their 
 proper spheres, the independent authority of the States is dis- 
 tinctly recognized. To them nearly the whole charge of interior 
 regulation is committed or left; to them, and to the people, all 
 powers, not expressly delegated to the National Government, are 
 reserved.' Upon looking into the Constitution it will be found 
 that but a few of the articles of that instrument could be carried 
 into practical effect without the existence of the States. 
 
 "Two of the great departments of the government, the Execu- 
 tive and the Legislative, depend upon the exercise of the powers 
 or upon the people of. the States. The Constitution guarantees 
 to the States a republican form of government, and protects each 
 against invasion or domestic violence. Such being the separate 
 and independent condition of the States in our complex system, 
 as recognized by the Constitution, and the existence of which is 
 so indispensable, that, without them, the General Government 
 itself would disappear from the family of nations, it would seem 
 to follow, as a reasonable, if not a necessary consequence, that 
 the means and instrumentalities employed for carrying on the 
 operations of their government for preserving their existence, and 
 fulfilling the high and responsible duties assigned to them in the 
 Constitution, should be left free and unimpaired; should not be 
 liable to be crippled, much less defeated by the taxing power of 
 another government, which power acknowledges no limits but
 
 UNITED STATES SUPREME COURT DECISIONS. 119 
 
 the will of the legislative body imposing the tax. And, more 
 especially, those means and instrumentalities which are the 
 creation of their sovereign and reserved rights, one of which is 
 the establishment of the Judicial Department, and the appoint- 
 ment of officers to administer their laws. Without this power, 
 and the exercise of it, we risk nothing in saying that no one of 
 the States, under the form of government guaranteed by the 
 Constitution could long preserve its existence. A despotic gov- 
 ernment might. We have said that one of the reserved powers 
 was to establish a judicial department, it would have been more 
 accurate, and in accordance with the existing state of things at 
 the time, to have said the power to maintain a judicial depart- 
 ment. All of the thirteen States were in the possession of this 
 power, and had exercised it at the adoption of the Constitution ; 
 and it is not pretended that any grant of it to the Federal Govern- 
 ment is found in that instrument. It is, therefore, one of the 
 sovereign powers vested in the States by their constitutions, 
 which remained unaltered and unimpaired, and in respect to 
 which the State is as independent of the General Government as 
 that government is independent of the States. 
 
 "The supremacy of the General Government, therefore, so 
 much relied on in the argument of the counsel for the plaintiff 
 in error, in respect to the question before us, cannot be main- 
 tained. The two governments are upon an equality, and the 
 question is whether the power 'to lay and collect taxes' enables 
 the General Government to tax the salary of a judicial officer of 
 the State, which officer is a means or instrumentality employed 
 to carry into execution one of its most important functions, the 
 administration of the laws, and which concerns the exercise of 
 a right reserved to the States. 
 
 "We do not say the mere circumstance of the establishment 
 of the Judicial Department, and the appointment of officers to 
 administer the laws, being among the reserved powers of the 
 States, disables the General Government from levying the tax, as 
 that depends upon the express power 'to lay and collect taxes' 
 but it shows that it has an original inherent power never parted 
 with, and in respect to which the supremacy of that government 
 does not exist, and is of no importance in determining the ques- 
 tion; and further, that being an original and reserved power,
 
 120 AMERICAN ELEMENTARY LAW. 
 
 and the judicial officers appointed under it being a means or 
 instrumentality employed to carry it into effect, the right and 
 necessity of its unimpaired exercise, and the exemption of the 
 officer from taxation by the Federal Government, stand upon 
 as solid a ground and are maintained by principles and reasons 
 as cogent as those which led to the exemption of the Federal offi- 
 cer in Dobbins v. Erie Co. from taxation by the State; for, in 
 this respect, that is, in respect to the reserved powers, the State 
 is as sovereign and independent as the General Government. 
 And if the means and instrumentalities employed by that govern- 
 ment to carry into operation the powers granted to it are, neces- 
 sarily, and for the sake of self-preservation, exempt from taxation 
 by the States, why are not those of the States depending upon 
 their reserved powers, for like reasons, equally as exempt from 
 federal taxation? Their unimpaired existence in the one case 
 is as essential as in the other. It is admitted that there is no 
 express provision in the Constitution that prohibits the General 
 Government from taxing the means and instrumentalities of that 
 government. In both cases the exemption rests upon necessary 
 implication, and is upheld by the great law of self-preservation; 
 as any government, whose means employed in conducting its 
 operations, if subject to the control of another and distinct gov- 
 ernment, can exist only at the mercy of that government. Of 
 what avail are these means if another power may tax them at 
 discretion ? 
 
 ' ' But we are referred to The Veazie Bk. v. Fenno, 8 "Wall. 533 
 (75 U. S. XIX, 482), in support of the power of taxation. That 
 case furnishes a strong illustration of the position taken by the 
 Chief Justice in McCulloch v. Maryland, namely : ' That the power 
 to tax involves the power to destroy.' 
 
 "The power involved was one which had been exercised by 
 the States since the foundation of the government and had been, 
 after the lapse of three quarters of a century, annihilated from 
 excessive taxation by the General Government, just as the judicial 
 office in the present case might be, if subject, at all, to taxation 
 by that government. But, notwithstanding the sanction of this 
 taxation by the majority of the court, it is conceded, in the 
 opinion, that 'the reserved rights of the States, such as the right 
 to pass laws; to give effect to laws through executive action; to
 
 UNITED STATES SUPREME COURT DECISIONS. 121 
 
 administer justice through the courts, and to employ all necessary 
 agencies for legitimate purposes of State Government, are not 
 proper subjects for the taxing power of Congress.' This con- 
 cession covers the case before us, and adds the authority of this 
 court in support of the doctrine which we have endeavored to 
 maintain.' ' 
 
 Kohl v. United States, 1 Otto, 367, decided March 27, 1876. 
 
 This was a proceeding by the United States Government to 
 condemn a site for a postoffice in the city of Cincinnati. The 
 opinion was delivered by Mr. Justice Strong and is in part as 
 follows: 
 
 ' ' It has not been seriously contended during the argument that 
 the United States Government is without the power to appropriate 
 lands or other property within the States for its own uses, and 
 to enable it to perform its proper functions. Such an authority 
 is essential to its independent existence and perpetuity. These 
 cannot be preserved if the obstinacy of a private person, or if any 
 other authority, can prevent an acquisition of the instrument or 
 means by which alone governmental functions can be performed. 
 The powers vested by the Constitution in the General Govern- 
 ment demand for their exercise the acquisition of lands in all 
 the States. These are needed for forts, armories and arsenals, 
 for navy yards and lighthouses, for customhouses, postoffices, 
 and courthouses, and for other public uses. If the right to 
 acquire property for such uses may be made a barren right by 
 the unwillingness of property holders to sell, or by the action 
 of a State prohibiting a sale to the Federal Government, the con- 
 stitutional grants of power may be rendered nugatory, and the 
 Government is dependent for its practical existence upon the 
 will of a State, or even upon that of a private citizen. This can- 
 not be. No one doubts the existence in the state governments 
 of the right of eminent domain — a right distinct from and para- 
 mount to the right of ultimate ownership. It grows out of the 
 necessities of their being, not out of the tenures by which the 
 lands are held. It may be exercised, though the lands are not 
 held by grant from the Government, either mediately or imme- 
 diately, and independent of the consideration whether they would 
 escheat to the Government in case of a failure of heirs. The
 
 322 AMERICAN ELEMENTARY LAW. 
 
 right is the offspring of political necessity ; and it is inseparable 
 from sovereignty, unless denied to it by its fundamental law. 
 Vatt, ch. 20, 34 ; Bynk. lib. 2, eh. 15 ; Kent, Com., 338-340 ; Cooley, 
 Const. Lim., 584 et sequentia. But it is no more necessary for 
 the exercise of the powers of a state government than it is for 
 the conceded powers of the Federal Government. That Govern- 
 ment is as sovereign within its sphere as the States are within 
 theirs. True its sphere is limited. Certain subjects only are 
 committed to it ; but its power over those subjects is as full and 
 complete as is the power of the States over the subjects to which 
 their sovereignty extends. The power is not changed by its 
 transfer to another holder. 
 
 "But, if the right of eminent domain exists in the Federal 
 Government, it is a right which may be exercised within the 
 States, so far as it is necessary to the enjoyment of the powers 
 conferred upon it by the Constitution. In Ableman v. Booth, 
 21 How., 523 (62 U. S. XVI., 175), Chief Justice Taney described 
 in plain language the complex nature of our government, and 
 the existence of two distinct and separate sovereignties within 
 the same territorial space, each of them restricted in its powers, 
 and each, within its sphere of action prescribed by the Consti- 
 tution of the United States, independent of the other. Neither 
 is under the necessity of applying to the other for permission 
 to exercise its lawful powers. Within its own sphere, it may 
 employ all the agencies for exerting them which are appropriate 
 or necessary, and which are not forbidden by the law of its being. 
 When the power to establish postoffices and to create courts 
 within the States was conferred upon the Federal Government, 
 included in it was authority to obtain sites for such offices and 
 for courthouses, and to obtain them by such means as were known 
 and appropriate. The right of eminent domain was one of those 
 means well known when the Constitution was adopted, and em- 
 ployed to obtain lands for public uses. Its existence, therefore, 
 in the grantee of that power, ought not to be questioned. The 
 Constitution itself contains an implied recognition of it beyond 
 what may justly be implied from the express grants. The fifth 
 Amendment contains a provision that private property shall not 
 be taken for public use without just compensation. What is that
 
 UNITED STATES SUPREME COURT DECISIONS. 123 
 
 but an implied assertion, that, on making just compensation, it 
 may be taken?" 
 
 Munn v. The People of Illinois, 4 Otto, 113, decided March 1st, 
 1877. 
 
 This was a case involving the right of the State of Illinois to 
 fix by statute maximum rates which could be charged for the 
 use of grain elevators in the city of Chicago. Munn contended, 
 among other things, that such regulation was contrary to the 
 Fourteenth Amendment to the Federal Constitution which de- 
 clares that no State shall " deprive any person of life, liberty, 
 or property without due process of law nor deny to any person 
 within its jurisdiction the equal protection of the laws." 
 
 In considering this branch of the case the court took up the 
 matter historically and traced the principle embodied in the 
 foregoing provision through Magna Charta into the constitutions 
 of the various States and into the Federal Constitution. In this 
 discussion Chief Justice Waite says: 
 
 "When the people of the United Colonies separated from 
 Great Britain, they changed the form, but not the substance, of 
 their government. They retained for the purposes of govern- 
 ment all the powers of the British Parliament and, through their 
 State Constitutions or other forms of social compact, undertook 
 to give practical effect to such as they deemed necessary for 
 the common good and the security of life and property. All the 
 powers which they retained they committed to their respective 
 States, unless in express terms or by implication reserved to 
 themselves. Subsequently, when it was found necessary to es- 
 tablish a national government for national purposes a part of 
 the powers of the States and of the people of the States was 
 granted to the United States and to the people of the United 
 States. This grant operated as a further limitation upon the 
 powers of the States, so that now the governments of the States 
 possess all the powers of the Parliament of England, except such 
 as have been delegated to the United States' or reserved by the 
 people. The reservations by the people are shown in the pro- 
 hibitions of the constitutions."
 
 PART III. 
 LAW GOVERNING CONDUCT OF PERSONS. 
 
 CHAPTER I. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 
 Definition. 
 
 Law is a continuous rule of being or action established by 
 power capable of enforcing it. 
 
 The primary idea of the word is to lay down, to establish, to 
 impose. This carries the idea of an authoritative law-giver. 
 The second idea is obligation on those subject to the rule. The 
 law being supported by authority, it must be observed by those 
 to whom it applies. A third idea is command, or the expression 
 of mandatory will, as distinguished from request and advice. 
 The fourth idea is continuity. It is a rule to be observed habit- 
 ually and constantly, not for one occasion only. The fifth idea 
 is sanction or penalty. As the law is to be obeyed, and as its 
 subjects may not always obey willingly, there must be penalty 
 provided for its violation, and enforced against all those who 
 disobey. 
 
 These are all the essential elements of law: (1) A law-giver, 
 having power to enforce his will; (2) a person or persons subject 
 to and required to observe this will; (3) a command or authorita- 
 tive expression of this will; (4) the continuous nature of the 
 command; (5) a penalty attached to disobedience. 
 
 It is apparent that many rules of action called laws do not 
 possess all these characteristics. This is only a mode of saying 
 that the word law has shared the fate common to so many of our 
 English words, and has many meanings varying more or less 
 from its primary and strict significance. These variations in 
 its meaning occur even with regard to political and governmental 
 affairs. The expressions, International Law and Municipal Law,
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 125 
 
 are equally current; but it requires only a moment's thought to 
 see that in the latter the word is used in its strict sense, carrying 
 all the ideas set out above; whereas, in the former, the use is 
 much less accurate. Each use is, hov/ever, accepted and ap- 
 proved. 
 
 International Law is a system of rules recognized among civ- 
 ilized nations for the government of their conduct among them- 
 selves. These rules have been established by usage and custom, 
 rather than by antecedent agreement or authoritative enunciation. 
 They do not emanate from any political power having jurisdiction 
 over the nations yielding obedience to them, and depend more 
 upon "the consent of the governed" and on moral sanction than 
 upon force. Some of these rules are of such long standing and 
 are so thoroughly recognized that to disregard them would 
 practically place the offending power outside the pale of civilized 
 nations, and, if war ensued from such violation, would practically 
 combine all other sovereigns recognizing the rules of international 
 law against the offender. Other rules are not nearly so well es- 
 tablished, and their enforcement rests upon moral suasion and 
 comity alone. 
 
 Municipal Law deals with the organization and maintenance 
 of government, the administration of its internal affairs, and the 
 conduct of individuals; and, as these are all subject to the 
 same sovereign political power, capable of enforcing its will, they 
 are laws in the true sense. The law-giver is the sovereign ; those 
 subject to the law are the various governmental agencies created 
 by the sovereign, and natural and artificial persons within its 
 jurisdiction who are bound to obey. The rules are mandatory, 
 not persuasive or advisory and continuous, operating uniformly. 
 Tney are enforced by sanctions prescribed by the sovereign, con- 
 sisting either in reward for obedience, prevention of disobedience, 
 or punishment for disobedience accomplished. 
 
 Many definitions of Municipal Law have been given. Probably 
 the most familiar one is that by Blackstone: "A rule of civil con- 
 duct prescribed by the supreme power in the State, commanding 
 what is right, and prohibiting what is wrong." (I Blackstone 's 
 Commentaries, 44.) Much has been written with reference to 
 this definition, part in criticism and part in commendation. The 
 criticism has been directed mainly toward the last phrase — "com-
 
 126 AMERICAN ELEMENTARY LAW. 
 
 manding what is right and prohibiting what is wrong" — charging 
 that this introduces the idea of moral quality into the law itself ; 
 whereas, moral considerations, strictly speaking, are addressed to 
 and should control the law-making power in determining what 
 rule of conduct should be established, and do not enter into the 
 validity or invalidity of the rule after it has been authoritatively 
 determined and announced. In deference to this, numerous 
 writers adopt the first phrase as a complete definition. Again, 
 criticism has been directed toward the word "prescribed," al- 
 leging that it makes too emphatic the idea of antecedent announce- 
 ment or pre-writing. These latter critics seek to justify their 
 objections by citation of numerous instances in which courts have 
 determined and enforced the claims of litigants when no directly 
 applicable written law or precedent could be found for so doing. 
 The correctness of these criticisms depends upon the view taken 
 as to such judicial enunciations. If they be looked upon as 
 creating new rules of conduct, the criticism is just. If, however, 
 they be regarded simply as declaratory of rules that have all the 
 while existed in the will and mind of the sovereign, and which 
 are included in the general principles adopted and announced by 
 it to regulate conduct, but which have not theretofore been en- 
 forced specifically because no facts to which they were applicable 
 had been presented to the courts, then the criticism is unjust. 
 Each of these views has its advocates and its arguments. Per- 
 sonally, I hold to the latter. 
 
 Bouvier's Law Dictionary defines law as follows: "That which 
 is laid down; that which is established. A rule or method of 
 action, or order of sequences. 
 
 ' ' The rules and methods by which society compels or restrains 
 the action of its members. 
 
 ' ' The aggregate of those rules and principles of conduct which 
 the governing power in a community recognizes as those which 
 it will enforce or sanction, and according to which it will regulate, 
 limit, or protect the conduct of its members." 
 
 The first of these definitions by Bouvier gives the general con- 
 ception of law. It is appreciably broader than the one we have 
 given above, including in it order of sequence as well as author- 
 itative command. This was evidently done so as to include the 
 now common use of the word in relation to the operations of
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 127 
 
 nature. If we limit our thought of nature to the material uni- 
 verse and its processes, the latter become simply orders of se- 
 quence; if, however, we look through nature to its Author, we 
 find that the orders of sequence have their origin in an authori- 
 tative and intelligent will to which their uniformity and contin- 
 uity are referable. 
 
 The second definition of the three quoted is broader than 
 municipal law, and embraces all social rules and restraints upon 
 conduct. 
 
 The third is quite an accurate definition of municipal law as 
 dealing directly with the conduct of individuals. This conduct 
 is the principal subject matter of municipal law, and the defini- 
 tion may therefore be accepted as good as far as it extends. 
 
 There is, however, another point of view which seems to me 
 of importance in our American jurisprudence, which is not cov- 
 ered adequately in any of the definitions quoted, or others with 
 which I am familiar, but which is necessarily involved in our 
 institutional form of government. Our constitutions are laws, 
 yet there is much in them which is not applicable to or designed 
 to regulate the conduct of individuals as such. They are creative 
 instruments and result in legal institutions to which they give 
 life and for which they prescribe the laws of being. These 
 creative and functional provisions seem to me to be readily 
 separable from the rules of conduct established by the sovereign 
 for the government of its members. If this be true, the definition 
 of law ought to be broad enough to include both classes of rules. 
 
 I suggest the following definitions: 
 
 Law, as a general concept, is a continuous and mandatory rule 
 of being or action established by power capable of enforcing it. 
 
 A municipal law is a continuous rule of being or conduct 
 established and enforced by the supreme political power having 
 jurisdiction. 
 
 The law of any nation or State is the system or mass of such 
 rules established and enforced by it. 
 
 Municipal Law includes all the rules established by any nation 
 or State for the formation and maintenance of its government; 
 the regulation of the conduct of its agencies; for the regulation 
 of all those subject to its authority. It includes all the positive 
 law of a State.
 
 128 AMERICAN ELEMENTARY LAW. 
 
 Under these definitions may be treated all phases of municipal 
 law, institutional and individual. 
 
 DIFFERENT KINDS OF MUNICIPAL LAW. 
 
 There are many kinds of municipal law, of which the follow- 
 ing are probably the most important: 
 
 Unwritten. Written. 
 
 Substantive. Adjective. 
 
 Public or General. Private or Special. 
 
 Constitutional. Statutory. 
 
 Common. Roman. 
 
 Civil Criminal. 
 
 Equity. Common Law. 
 
 Contract. Non-Contract. 
 
 Law-Merchant. Ecclesiastical. 
 
 Ex Post Facto. Retroactive. 
 
 Military. Martial. 
 Maritime 
 
 THE UNWRITTEN OR COMMON LAW. 
 
 Definition. — Under this head are embraced all those general 
 rules, both as to rights and procedure, which have never been 
 formulated in statutes or constitutional provisions, but which 
 are nevertheless enforced by the government. 
 
 Its Extent. — This unwritten law embraces by far the larger 
 part of the law of the land. Our statutes and constitutions are, 
 in a large measure, meaningless, except as aided, construed and 
 supplemented by it, and a very large portion of our rights and 
 duties are dependent on it exclusively. 
 
 Its Creation. — In the language of the law, these rules are 
 legally adopted customs, which have been recognized and enforced 
 from "time when the memory of man runneth not to the con- 
 trary," and are, hence, considered as authoritative expressions 
 of the sovereign will. It is not necessary to undertake to trace 
 their origin. As the legislative function embraces the duty of 
 law-making as well as the power of so doing, where a condition 
 exists in which certain conduct is permitted or approved by 
 usage and common consent, unless some legislative action is taken 
 in opposition to or in correction of it, this inaction is an authori-
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 129 
 
 tative approval. This, at least, is the very plausible theory fre- 
 quently set forth. 
 
 Probably the history of Texas gives us as fine an illustration as 
 could be gotten. Texas was under the dominion of the Spanish 
 and Civil Law. The the Anglo-American came, bringing with him 
 the thoughts, education, and habits of the Common Law. Almost 
 at once he began the struggle for Common Law institutions, and 
 even before the Revolution, in many communities, a large share 
 of the rights and rules of conduct were based on the Common 
 Law. This continued, until we find, in the Declaration of In- 
 dependence and Constitution of the Republic, a most compre- 
 hensive embodiment of Common Law ideas and principles, and 
 in a few years after the independence of Texas was established we 
 find Congress, by specific enactment, repudiating the Civil Law 
 and adopting the Common Law, as far as applicable to existing 
 conditions. Here the process was that, on the Revolution be- 
 coming effective, the pre-existing rules of Civil Law continued, 
 without express legislative sanction; and when a change from 
 this continuous condition was desired, express legislation indi- 
 cating this desire was passed. It did not undertake to formulate 
 or write the Common Law, however, but simply said that the 
 unwritten law of England shall henceforth be the unwritten law 
 of Texas. This unwritten law, with our Constitution and stat- 
 utes, is our State law at this time. As indicated by the appella- 
 tions — unwritten or Common Law — these laws have never been 
 put into express words or terms by parliament or legislature. 
 They are, in a large part, founded on reason and justice, and 
 exist in the minds and hearts of the people and in the precedents 
 in adjudged cases. There are no new principles brought into 
 them, but constant new application of old principles to new com- 
 binations of fact. It is this which gives the English and Ameri- 
 can law its elasticity and capacity to meet the constantly varying 
 conditions of advancing civilization. 
 
 WRITTEN LAW. 
 
 Constitutional Law. 
 
 From the English point of view Constitutional Law consists 
 of the fundamental principles and established customs and usages 
 which have been recognized and enforced from time iinme- 
 I
 
 130 AMERICAN ELEMENTARY LAW. 
 
 morial as the foundation of the government. These, in some 
 instances, have been embodied in great State papers, such as the 
 Magna Charta, etc., but such instruments are regarded rather as 
 declaratory than as creative. 
 
 From the American point of view, it includes the principles and 
 rules embodied in written instruments, adopted by direct act of 
 the people as the basis and charter of the government founded by 
 them. 
 
 They are binding alike on all governmental agencies who mani- 
 fest and carry out the will of the sovereign in other matters, as 
 they are on private persons, and can not be rightfully disre- 
 garded, set aside, or modified, except by the people, as provided 
 in the instrument, or by revolution. 
 
 The Federal Constitution. 
 
 1. History. — July 4, 1776, the Declaration of Independence was 
 passed by the Congress of the Thirteen United States of America, 
 at Philadelphia. 
 
 November 15, 1777, delegates of the United States, in Congress 
 assembled, agreed to articles of confederation among the original 
 thirteen States, subject to approval by the legislatures of the 
 several States. 
 
 These articles having been approved by the several legislatures 
 of the several States, they were ratified by Congress on July 9, 
 1778. 
 
 September 17, 1787, the present Constitution was completed 
 and signed by the convention which proposed it. It was ratified, 
 at different times, by different States, and became operative 
 March 4, 1789. (5 Wheat., 420.) 
 
 Its Effect. — With it came into being the Government of the 
 United States of America. (19 How., 397.) There has been 
 nothing like it in the world 's history. 
 
 The government created by it is one of delegated powers. 
 There are three different kinds of power recognized in it. There 
 is no prohibition of the exercise of more than one of these by the 
 same officer. The legislative power is vested in Congress. It is 
 the supreme law on all matters within its scope. 
 
 Amendments. — It provides a method of amendment, and this 
 power has been frequently exercised ; there are now fifteen amend- 
 ments — additions to the original instrument.
 
 MUNICIPAL LAW AND ITS SUBJECT MATTEE. 131 
 
 The Constitution of the State. 
 
 2. The Constitution of a State is the direct expression of the 
 sovreign will of the people. In it they embody their plan of gov- 
 ernment and provide for all the agencies through which they de- 
 sire to exercise their power. In it also they reserve to themselves 
 certain designated powers, which are not to be exercised by any 
 of their agents. As to all matters within the jurisdiction of the 
 State, it is the supreme law, and must be obeyed. If it should 
 undertake to deal with matters of Federal jurisdiction, it would, 
 as to them, be inoperative and of no effect. 
 
 Statutes. 
 
 Definition. — Statutes are written expressions of the will of the 
 sovereign, formulated and adopted by the legislature, or rather 
 the legislative department of the government. They constitute by 
 far the greater part of the written law. 
 
 To be effective, they must be enacted in conformity with the 
 Constitution of the government. 
 
 The scheme for legislation in the Federal and in the State gov- 
 ernments is practically the same. The legislative power is vested 
 in the two separate houses or bodies of officers, called respectively 
 the Senate and House of Representatives. A bill, except for rais- 
 ing revenue, may originate in either house, but must pass both 
 houses and be signed by the presiding officer of each before it 
 becomes a law. It must then receive the approval, affirmative or 
 negative, of the chief executive, or be passed over his veto on a 
 two- thirds vote of each house. 
 
 The manner of enacting laws is set out with considerable detail 
 in the Constitutions both State and Federal. 
 
 The effect of statutes passed by Congress, in conformity to the 
 Constitution of the United States, is to establish the rule ex- 
 pressed therein as a law, to be obeyed by all persons subject to 
 the United States, and it is binding alike on the President and the 
 heads of departments, the Federal judiciary, and on all State 
 officers. If it is in not in conformity with the Federal Constitu- 
 tion, it is binding on no one. 
 
 The same is true of enactments of the State legislatures, with 
 this additional statement, that they must conform to the Con- 
 stitution, laws and treaties of the Federal Government, and also 
 to the Constitution of the State. If they meet these require-
 
 132 AMERICAN ELEMENTARY LAW. 
 
 ments, they must be obeyed by all; if they do not, they are not 
 law, and are of no effect. 
 
 The constitutionality of Federal and State statutes is a matter 
 of judicial cognizance. Such questions as to the enactments of 
 either government may be raised and decided in the courts of 
 either, with this difference: If the question be the validity of a 
 Federal statute, the decision of the Supreme Court of the United 
 States is alone final and binding on all persons, while the de- 
 cision of the State courts on such question will not necessarily be 
 followed by the Federal courts — they will deal with the question 
 as an original matter. If the question be a conflict between a 
 State stitute and the Federal Constitution or a treaty, the Fed- 
 eral courts will not be bound by the decision of the State court, 
 but the latter must follow the former. If the question be a con- 
 flict between the statute and the State Constitution not presenting 
 a Federal question, the decisions of the State courts are binding 
 on everyone. 
 
 Treaties. 
 
 A treaty is "A compact made between two or more independent 
 nations with a view to the public welfare." Under our system 
 of government the power to make treaties is exclusively in the 
 United States. No State with us can enter into any agreement 
 with any other State or any foreign power, without the consent 
 of Congress. 
 
 Treaties by the Federal Government are entered into by the 
 combined action of the President and Senate. By the terms of 
 the Constitution they are declared to constitute a part of the 
 supreme law and must be observed by the United States and the 
 several state governments and all private persons. 
 
 Substantive Law. 
 
 5. This term is used in contradistinction to Adjective or Reme- 
 dial Law — the law of procedure — and covers all rules of conduct 
 on which primary rights rest, everything that goes into the nature 
 or existence of legal rights and wrongs, not being mere rules of 
 procedure for the purpose of enforcing substantive rights. 
 
 Adjective Law. 
 
 6. Adjective or Remedial Law includes all rules of procedure 
 and those rules which govern the agencies of the government and 
 all parties in seeking and obtaining redress or remedy for wrongs. 

 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 133 
 
 Public Law. 
 
 7. Public or general laws are those which relate to and operate 
 generally on all persons or things included in the class subject to 
 the law. 
 
 Private Law. 
 
 8. Private or special laws are those which relate to some par- 
 ticular thing or persons, and do not operate generally on all per- 
 sons or things of the same kind and similarly situated. 
 
 Common Law. 
 
 9. This term has at least three distinct meanings: 
 
 (1) As distinguished from Written Law, as we have seen it 
 includes every rule enforced by the sovereign and not embraced 
 in constitutional or statutory enactments or treaties. 
 
 (2) As a general system of jurisprudence, it is used to denote 
 the entire body of English Law, written or unwritten, as distin- 
 guished from the Roman or Civil Law. This is its broadest use, 
 and embraces in it everything from those fundamental concepts 
 and institutions which distinguish English and American civiliza- 
 tion from that of other developments, to the most unimportant 
 rule which governs in the most trivial affairs of English or Amer- 
 ican life. 
 
 (3) In a narrower sense it embraces only those principles, 
 rules and methods of procedure which govern the Common Law 
 Courts, as distinguished from Courts of Equity and Ecclesiastical 
 Courts. 
 
 Roman Law. 
 
 10. Roman Law is the great system of jurisprudence which pre- 
 vailed in the Roman Empire, and from there has been transmitted 
 through the countries of Central and Southwestern Europe and 
 their dependencies in all parts of the world. It is the only rival 
 of the English Common Law, regarded as a system of jurispru- 
 dence. It is of very great importance to the lawyer of the ex- 
 treme "West and Southwest, because of the former jurisdiction of 
 Spain and Mexico over this territory and the great influence 
 which that fact has on its law. In many regards it is more nearly 
 allied to the Roman than to the Common Law system. This is 
 particularly true as to land holdings, marital relations or rights 
 of husband and wife, and the system of pleading and procedure.
 
 134 AMERICAN ELEMENTARY LAW. 
 
 Civil Law. 
 
 11. This term has two distinct meanings: 
 
 (1) It is often used as equivalent to Roman Law, as distin- 
 guished from the Common. This meaning is covered by the pre- 
 ceding paragraph. 
 
 (2) It is used in opposition to Criminal Law, to indicate all 
 the rules which determine and regulate the rights and remedies of 
 private parties as between themselves. In this sense, it covers all 
 of Equity, Contract, Tort or Non-Contract Law, and much of the 
 various other classes. 
 
 Criminal Law. 
 
 12. Criminal Law includes all the rules established and en- 
 forced to protect the rights of the public from violation by acts 
 of individuals. The Common Law is very elaborate and exhaus- 
 tive on this subject, and is the base of all American Statutory 
 Law. 
 
 Equity. 
 
 13. Equity, as a system of law, includes all those rules of sub- 
 stantive and remedial justice which are recognized in and admin- 
 istered through courts of Chancery as distinguished from Com- 
 mon Law courts. 
 
 In England at an early period the rules of the Common Law 
 became fixed and changeless. The courts followed precedent, and 
 were limited in their jurisdiction by the forms of action adopted. 
 The bringing of a suit was not by petition to the court, setting out 
 the facts constituting the grievance of the party, and asking for 
 the appropriate remedy, but by application to the clerk for the 
 issuance of a certain form of writ. The clerk could not change 
 or increase the kinds of writs which he was authorized to issue, 
 and a party could not get access to the court or judge without a 
 writ of the appropriate and prescribed form ; so that, if the in- 
 jury were one not appropriately falling into one of the established 
 forms of writs, the injured party was without a remedy. 
 
 As time passed and the progress of the world advanced, this 
 condition became intolerable, and petitions for relief in special 
 cases were made to the King, as the fountain of justice, and these 
 he referred for action to his chief councilor, the Chancellor, who 
 was keeper of the King's conscience, and later of the Great Seal
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 135 
 
 of State. The Chancellor granted or withheld relief, as the case 
 seemed to require. From this grew the jurisdiction of the Chan- 
 cellor or Chancery courts to administer relief in cases of great 
 injustice in which the Law courts could give no relief ; hence, we 
 find that Equity is often spoken of as a system of remedial jus- 
 tice administered in courts of Chancery for the purpose of supple- 
 menting the Law courts and giving relief in necessary and mer- 
 itorious cases in which the law, by reason of its fixedness and the 
 inadequacy of the forms of action, could not do justice to the 
 parties. 
 
 The same tendencies and influences which crystallized and 
 fixed the procedure of the Common Law courts asserted them- 
 selves in the Chancery courts, and the instances in which injustice 
 would be prevented there, or, in other words, the kind of eases 
 in which relief would be granted there, and the nature of the 
 remedies which would be applied, gradually became reduced to 
 and governed by fixed rules or maxims, and unless the particular 
 complaint made to the' court comes within some of these, the 
 suitor is now as helpless in a Chancery court as in a court of Law. 
 So the early view, of a system co-extensive with natural justice, 
 no longer obtains, and the rules of Equity are as fixed and un- 
 changeable as those of law, though they have a broader scope. 
 
 As the primary purpose of Equity was to give relief in cases in 
 which the Law gave no remedy, it is a fundamental maxim of 
 that system that Equity will afford no relief where there is an 
 adequate legal remedy. In some instances, however, the law 
 courts would grant some kind of relief, but experience demon- 
 strated that these remedies were not adequate, that is, that they 
 fell short of practical justice between the parties, and from this 
 there grew up a number of cases in which Chancery courts would 
 take jurisdiction, although there was some remedy at law. In 
 these the aggrieved party has his choice of forum and can sue in 
 either, and hence there is, to a limited extent, a concurrent juris- 
 diction between Common Law and Equity or Chancery courts. 
 So we see that, at this time, the term Equity has the significance 
 given it above. 
 
 Contract Law. 
 
 14. Sovereignty recognizes the right in many instances of per- 
 sons to create, modify, or destroy legal rights and relations by
 
 136 AMERICAN ELEMENTARY LAW. 
 
 agreement among themselves: The rules of law governing agree- 
 ments and determining the legal effect and force thereof and 
 regulating the legal relations, and rights and duties resulting 
 therefrom constitute Contract Law. 
 
 Non-contract or Tort Law. 
 
 15. These terms indicate the rules of law which create, regu- 
 late, and define the legal relations, rights, and duties of persons 
 in the absence of agreement between them, and the rights and 
 duties recognized or imposed by law as incidental to some rela- 
 tion or relations established between the parties by agreement. 
 The rules of contract and of non-contract or tort law supplement 
 each other and taken together comprise the entire mass of rules 
 of law regulating and determining the rights and duties of in- 
 dividuals as between or among themselves. 
 
 The Law Merchant. 
 
 16. This embraces, first, those rules and customs brought by the 
 merchants of Continental Europe into England when they set up 
 their trading establishments in London; second, these rules, as 
 modified by contact with the English Law, and as finally incor- 
 porated into the English system as a substantial part of it, as they 
 exist today. 
 
 At the time the German merchants came to London, Law was 
 largely personal instead of local. In their primitive state men 
 were organized in familes and tribes which had no fixed locations. 
 As they wandered they carried their tribal customs and rules with 
 them. This fact influenced many of our laws in their formative 
 period, but none more than the rules now under consideration. 
 The foreign merchants brought their business rules and customs 
 with them, and naturally insisted upon their observance by those 
 with whom they dealt. These were, in many respects, principally 
 as to consideration of contracts, assignability of choses in action, 
 and extension by law of the time for the payment of debts, di- 
 rectly opposed to the local Common Law. Conflict was inevit- 
 able, and the result was a compromise consisting in the body of 
 rules governing commercial business which we now designate the 
 law merchant. 
 
 Ecclesiastical Law. 
 
 17. The law governing the Church and things ecclesiastical. 
 William the Conqueror separated the civil and ecclesiastical juris-
 
 MUNICIPAL. LAW AND ITS SUBJECT MATTER. 137 
 
 dictions of the English tribunals, assigning to the latter authority 
 over all matters pertaining directly to the Church, the order of 
 the clergy and their conduct in religious matters, and to such mat- 
 ters affecting non-ecclesiastical persons as related to ''the health 
 of the Soul." This was a very indefinite jurisdiction, and under 
 it the courts took cognizance of matters pertaining to the mar- 
 riage state, both as to the celebration of the ceremony and its dis- 
 solution by divorce, and then of matters testamentary, guardian- 
 ship, and kindred subjects. No such separate jurisdiction exists 
 in America, and even in England the subject matter of this law 
 and the jurisdiction of the ecclesiastical courts have been much 
 reduced in later years, and now relate almost exclusively to the 
 affairs of the Church, considered as an established legal insti- 
 tution. 
 
 Ex Post Facto Laws. 
 
 18. Ex Post Facto Laws are written criminal laws attempting 
 to deal with conduct after it has taken place, to the substantial 
 prejudice of the person guilty of such conduct. They are usually 
 divided into classes as follows: 
 
 (1) Those which make conduct which was innocent when it 
 transpired punishable af terward as a crime. 
 
 (2) Those which aggravate the crime; that is, increase the 
 degree of criminality in an act after it has been committed. 
 
 (3) Those which increase the punishment for a crime after it 
 has been committed. 
 
 (4) Those which change the rules of evidence so as to require 
 less proof to support a conviction than was required when the 
 offense was done. (Story's Constitution, 212; 3 Dall., 390.) 
 
 These are all clearly ex post facto laws, but it may be doubted 
 whether they include all laws subject to this objection. 
 
 Such laws are forbidden by the Constitution of the United 
 States and of Texas, and, I think, of every State in the Union. 
 
 Retroactive Law. 
 
 19. Retroactive and Retrospective Laws are civil enactments 
 relating to past matters. The objections to changing past condi- 
 tions, as to civil rights and remedies, are not so great as in crim- 
 inal cases, yet they are sufficient to have caused the insertion in 
 many constitutions of a clause prohibiting such action by the leg- 
 islature. This clause is confined, in its operation, to laws which
 
 138 AMERICAN ELEMENTARY LAW. 
 
 will affect vested rights of property. The legislature may pass 
 acts which will take away remedies or change personal rights 
 without violating its provisions, so long as the change is not so 
 great as to interfere with or impair vested rights. 
 
 Military Law. 
 
 20. Military Law consists of that system of rules and regula- 
 tions which is provided for the government of soldiers and of per- 
 sons belonging to the army and navy. "The law applicable to 
 military service and affairs. ' ' This law does not apply to persons 
 not engaged in military service. In the United States it con- 
 sists of constitutional and statutory provisions, supplemented by 
 a few Common Law rules, all interpreted according to Common 
 Law principles. This law is administered through military tri- 
 bunals—courts-martial. 
 
 Martial Law. 
 
 21. ' ' This branch of law may be defined, in brief, as the law of 
 necessity and force, invoked for the protection of society, when 
 and where the civil law is paralyzed. " (Studies in Juridical Law. 
 113.) "Martial Law is the law of necessity, the ordinary law, 
 and the laws of nature intermingled in such manner and propor- 
 tions as the military power deems to be required by the particular 
 emergency, when it supersedes or otherwise takes a control su- 
 perior to the civil power." (1 Bish. New Criminal Law, Sec. 45.) 
 This is a necessity of war. It becomes operative only upon actual 
 hostilities, and continues only for such time thereafter as good 
 order and necessity require. "Military Law is that branch of 
 the law of the land prescribed by the government for the conduct 
 of the citizen as a soldier. It is administered by military tri- 
 bunals, and is in force in time of peace as well as war. But it does 
 not suspend the civil law for any breach of which the soldier is 
 liable to the same trial and punishment as the civilian. Martial 
 Law, on the other hand, is the military rule and authority in time 
 of war." (Studies in Juridical Law, 113.) 
 
 Maritime Law. 
 
 22. This has been defined as "that system of law which par- 
 ticularly relates to the affairs and business of the sea, to ships, 
 their crews and navigation, and to the maritime conveyance of 
 persons and property." (Bouvier's Law Dictionary.)
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 139 
 
 "The maritime law is a law common to all nations. It consists 
 of certain principles of equity and usages of trade which general 
 convenience and a common sense of justice have established in all 
 the commercial countries of the world, to regulate the dealing and 
 intercourse of merchants and mariners in matters relating to the 
 sea." (Benedict's Admiralty.) 
 
 Purposes of Sovereignty in Establishing Government and Making 
 Laws. 
 
 In States in which sovereignty is lodged in the great mass of 
 individuals composing the community the purposes for which 
 government is maintained and laws are enacted are first, to pro- 
 tect the people as a whole in their civil and political rights, and 
 second, to protect each individual member of the community in 
 his liberty and just opportunities and privileges. The basic 
 thought in liberty, right and justice is the same, equality of op- 
 portunity and in the enjoyment of those benefits and advantages 
 which opportunity brings when properly and justly utilized. 
 Properly organized government and properly determined law can 
 have no other end but these. So far as those who make the laws 
 appreciate and apply this fundamental truth their government 
 and law will be good, so far as they disregard it their government 
 will be bad. 
 
 These ends are secured by determining what courses of conduct 
 will lead to, and what courses of conduct will interfere with, the 
 accomplishment of this purpose and in encouraging and enjoin- 
 ing the former and forbidding and punishing the latter. When 
 a certain course of conduct is enjoined by law, this is equivalent 
 to a declaration by the law-making power that such conduct is 
 approved by it as leading to liberty, right, and justice. When 
 a certain course of conduct is forbidden by the law-making author- 
 ity, this is equivalent to a declaration by that authority that such 
 conduct will no1#lead to the public good or the individual well 
 being of those subject to the law. To state the matter differ- 
 ently, every law, whether positive or negative, is an expression by 
 the law-making power that conduct in accordance with such rule 
 is conducive to the public good and therefore proper, and conduct 
 contrary to such rule is subversive of the public good and there- 
 fore improper. 
 
 The questions necessarily arise, by what standards are the law- 
 makers to test the propriety or impropriety of proposed rules of
 
 140 AMERICAN ELEMENTARY LAW. 
 
 conduct and how closely shall they adhere to such standards in 
 the enactment of law ? Law is essentially practical and its stand- 
 ards must be practical. Notwithstanding this fact its standards 
 of propriety must always conform in large measure to moral 
 principle. Laws are not made for the direct purpose of making 
 men moral but in any enlightened community courses of conduct 
 which the law commends must essentially conform to moral stand- 
 ards simply because moral conduct in the great majority of in- 
 stances is conducive to the public welfare and to the individual 
 good of the persons composing the community. 
 
 These truths are so manifest and so nearly universal in their 
 application that it seems almost unnecessary to mention them. 
 Still it is not infrequent, when it is proposed to enact some 
 measure into law, to hear the objection that the conduct sought 
 to be secured thereby is moral and therefore outside the domain 
 of municipal law. This can never be a good objection. That 
 a measure though moral is still impractical or would not be con- 
 ducive to the public good is a legitimate argument against it, but 
 the fact that the rule enjoins moral conduct or conforms to prin- 
 ciples of right cannot of itself take the matter out of the juris- 
 diction of law. 
 
 A moment's consideration of the provisions of criminal law 
 will demonstrate that in almost evely instance conduct denounced 
 as criminal is also immoral. This is equally true, though per- 
 haps not quite so readily apparent in civil law. In almost every 
 instance the conduct required by law of individuals when dealing 
 with their neighbors conforms to the requirements of morality. 
 Neither the criminal nor the civil law covers the whole field of 
 ethics, but each, so far as it extends, in a very large measure 
 conforms to and enjoins obedience to ethical principles. It 
 must necessarily follow that the fact that a proposed rule of con- 
 duct is in itself moral cannot be an objection to its legality or. 
 against its being enacted into law. 
 
 CONSIDERATIONS CONTROLLING SOVEREIGNTY IN ENACTING LAWS. 
 
 In political organizations in which no class distinctions are rec- 
 ognized and the sovereign power is vested in the people, or a 
 large percentage of them, law is developed public sentiment, form- 
 ulated and enforced through governmental agencies. In such
 
 MUNICIPAL. LAW AND ITS SUBJECT MATTER. 141 
 
 communities, the rules of conduct prescribed necessarily reflect 
 the social, educational and moral conditions of the people. The 
 standards most usually applied by a people and their representa- 
 tives in determining what rules of conduct should be enforced 
 are moral, but these are not the sole matters to be considered. 
 Questions of policy and of practicability must be given due weight. 
 Hence, the rules of conduct prescribed by law usually embody 
 so much of the people's conception of the morally right in regard 
 to such conduct, as they can practically enforce through the 
 agencies at their command. These practical considerations are 
 often of very great weight. In them may be found, to a large 
 measure, an explanation of the law 's failure to provide compensa- 
 tion for moral injuries. Some preventive measures are 
 adopted ; but, where moral injury has actually been received, the 
 law never undertakes to give damages in compensation. This is 
 not because the law does not recognize that man has a moral 
 nature and that it is worthy of protection ; but because it has no 
 means by which practically to determine the fact or extent of 
 injury, or by which to measure such injury in dollars and cents. 
 The same consideratons prevail in many other matters, and afford 
 an explanation of most, if not all, of the omissions for which the 
 law is at times criticised. 
 
 Rightness as a quality may, in a general way, be defined as pro- 
 priety enforced by power. 
 
 Propriety consists in conformity to established rule, and is an 
 indispensable element of rightness. Frequently, we emphasize 
 the idea of conformity to standard to such extent as practically to 
 exclude the second notion from view ; still, it seems that the idea 
 of sanction or enforcement by power is as really a part, though 
 not so large a part, as is conformity, in the conception of pro- 
 priety. 
 
 When we speak of the morally right we mean that which is 
 proper, judged by moral standards, and which is enforced by 
 such sanctions and penalties as moral forces can control. So of 
 that which is religiously right; this is conformity to religious 
 standards, resulting in religious approval and reward; its op- 
 posite, non-conformity to religious standards, subjects to religious 
 disapprobation and penalty. Social rightness is conformity to 
 social standards, and brings social approval ; social unrightness is
 
 142 AMERICAN ELEMENTARY LAW. 
 
 nonconformity to social standards, and always subjects to such 
 penalties as society has at its command. So on through the en- 
 tire range of conduct, and judgment concerning it. Every time 
 we change the standards of propriety and the power by which 
 conformity is to be enforced, we change the quality of conduct 
 which will result in conformity, or Tightness, or in nonconformity, 
 or wrongness. This general doctrine is as true of legal standards 
 and penalties and of legal rights and wrongs, as in any other 
 department of life. 
 
 The question arises: Is there no absolute right and wrong, no 
 quality in conduct which will unerringly determine its character ? 
 
 Most certainly there is. God lives. He is infinite perfection 
 in all His characteristics and attributes. His standards are per- 
 fect, and conformity to them gives absolute right ; nonconformity 
 gives wrong or sin. We being emanations from God, formed 
 in His image, endowed with intelligence, capacity for appreciat- 
 ing the moral quality of conduct, and freedom of choice between 
 good and evil, should conform our lives to these absolute standards 
 which exist in the mind of God, and are in strict harmony with 
 Him, His character and government; and, if we fail to do so, we 
 place ourselves out of line with Him, and subject ourselves to 
 the penalties for such nonconformity. In the nature of things, 
 he who is subject to law and does not conform thereto must accept 
 the penalties of nonconformity. The declaration of these moral 
 standards, the conditions of conformity thereto, and the penalties 
 for the violation thereof, form a large part of Divine Law. 
 
 Human Law expresses man's idea of propriety, so far as he is 
 capable of enforcing it by the means at his command. As the 
 intelligence and moral excellence of the law-giver advances and 
 his conception of propriety approaches nearer to the absolute 
 standard existing in the mind and law of God, so will human law 
 approach the absolute perfection of the divine. 
 
 We hear much of the relation between law and justice, some- 
 times in the form of congratulation on the gradual nearing of the 
 two, sometimes in the form of lamentation that they are still so 
 far apart. Nothing human is perfect, but it is certain that man's 
 conception of right is growing better and truer day by day, and 
 his capacity for apprehending and applying just remedies is also
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 143 
 
 improving, so that each year finds the law nearer than before to 
 the absolute standard of right. He is the true reformer who, 
 with patient toil and faithful service, brings first himself and 
 then those about him to a higher and clearer conception of the 
 absolute right and to purer habits of life and conduct, and thus 
 becomes a center of moral light to those about him. No man has 
 a finer opportunity in this line than the lawyer. 
 
 Legal Rights. 
 
 "When certain conduct is approved by the law-making power of 
 any government, and it makes rules requiring such conduct to be 
 observed by those subject to it, prescribes penalties for the viola- 
 tion of such rules, and provides machinery or agencies to apply 
 such penalties, such conduct is right in that government. Per- 
 sons failing to conform voluntarily to these rules are by the sover- 
 eign subjected to the prescribed penalties, and are thus, in legal 
 contemplation, made to conform. This compulsion to conformity 
 always consists in some form of control over the person compelled, 
 either making him do or forbear to do in some way. This idea is 
 so essential in the law that many times compulsion occupies a 
 very prominent place in the legal conception of right as a quality, 
 and many authors, when they turn from the abstract to the con- 
 crete, define a legal right with almost exclusive reference to this 
 idea, and say that a legal right is ''the capacity in one or more 
 persons to control by law definite acts and forbearances by an- 
 other or others." While these authors are entitled to much re- 
 spect, their views can not be accepted as controlling further than 
 they embody true ideas. The conception conveyed by the lan- 
 guage quoted above does not seem to be adequate, and in some 
 connections is quite confusing. To illustrate: We are told by 
 the highest authority, and all recognize as true, that a cause of 
 action consists of a legal right in one person, the violation of this 
 right by another, and directly resulting injury. If, in this 
 formula, we limit the idea of legal right to simple capacity to 
 control by law, the result is confusing, if not unintelligible. The 
 same is true in many other legitimate uses of the word right. It 
 seems, therefore, that the term carries with it a different, or at 
 least an additional, idea, embracing something vested in and per-
 
 144 AMERICAN ELEMENTARY LAW. 
 
 taining to the person having the right, with reference to which 
 he may control by law the conduct of others. For these reasons, 
 I prefer the following definition : 
 
 A legal right is some power, claim, interest, or advantage which 
 one or more persons enjoy under the protection of the law, se- 
 cured to him or them by the sovereign by giving to him or them 
 the capacity to control by law the conduct of others with refer- 
 ence thereto. 
 
 The correlative term to legal right is legal duty. This repre- 
 sents the necessity imposed by law on one or more persons to rec- 
 ognize and respect and to leave inviolate some power, claim, in- 
 terest or advantage, existing in another or others, and consti- 
 tuting the right to which the duty is correlative. 
 
 Whatever language may be adopted to express the thought, the 
 conception of a legal right involves the idea of capacity to con- 
 trol the conduct of others by law, he or they who have the legal 
 right having the power to control by law the conduct of him or 
 them owing the corresponding legal duty, so far as such con- 
 duct affects such right. 
 
 The sovereign's recognition of a power, claim, interest or 
 advantage in one person, and its undertaking to compel another 
 or others to observe and respect the same, constitutes the legal 
 obligation existing between such persons with reference to the 
 recognized power, claim, interest or advantage. Thus, if one 
 person have a claim against another which is well founded in 
 morals, the latter would be morally obliged to recognize it. This 
 would constitute no legal obligation; if, however, the sovereign 
 having jurisdiction over both persons should say: "This claim is 
 proper, and I will enforce it," this recognition and undertaking 
 to enforce by the sovereign gives legal obligation to the claim, 
 and at once transforms it into a legal right. 
 
 Legal rights may exist in the whole body of the people collec- 
 tively, or in private persons. The mass of rules made for the 
 protection of public rights against individual wrongs is called 
 Criminal Law ; the mass of rules made for the protection of the 
 private rights of individuals is called Civil Law. 
 
 The rights existing in the public and protected by the Crim- 
 inal Law, and subjection to punishment for violation thereof, are 
 dependent upon the will of the sovereign, and are in no wise
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 145 
 
 dependent upon the assent and acquiescence, individually, of the 
 person charged with the offense. 
 
 The private rights protected by Civil Law, many of them, exist 
 independent of the assent of the parties owing the correlative 
 duties. These constitute the rights protected by tort, or non- 
 contract law. The law recognizes the power of persons, under 
 certain restrictions, to create new rights, or modify or destro}' 
 previously existing ones by agreement. Agreements having such 
 characteristics that the law will recognize and enforce them are 
 called contracts, and the rules governing the formation, effect, and 
 enforcement of such agreements are called Contract Law. 
 10
 
 CHAPTER II. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER (CONTD.) 
 SUBJECT MATTER OP LAWS. 
 
 The subject matter of private laws are persons and things, and 
 the conduct of persons with reference thereto. I should prefer 
 to limit it to human conduct, but persons and things have so long 
 been included that it is not desirable to omit them except for suffi- 
 cient reasons, which do not seem to exist. They are, therefore, 
 retained, and the idea of conduct added. 
 
 persons. 
 
 A person is a being capable of having legal rights and owing 
 legal duties. 
 
 Persons are of two kinds, natural and artificial; the first in- 
 cluding all human beings, whether normal or abnormal, and the 
 second including certain ideal entities recognized by the law as 
 existing separate and apart from the actual persons composing 
 them, having such powers and capacities and subject to such 
 restrictions and duties as are determined in their creation. These 
 artificial persons are known as corporations. 
 
 Natural persons are classified in various ways. When viewed 
 with reference to their relation to particular governments, they 
 are separated into citizens or subjects, denizens, and aliens ; with 
 reference to their representation of sovereignty, into public and 
 private ; with reference to their capacity to act for themselves, 
 into those sui juris and those non-sui juris. These classes are 
 again subject to subdivision. 
 
 Citizens. 
 
 A citizen is one of the sovereign people. (19 How., 404.) A 
 constituent member of the State. (92 U. S., 342 ; 21 Wall., 162.) 
 
 All persons, except Indians, born or naturalized in the United 
 States and subject to the jurisdiction thereof, are citizens of the 
 United States and of the States in which they reside. (U. S.
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 147 
 
 Const., fourteenth amendment.) The only difference between the 
 rights and duties of native and naturalized citizens is that the 
 latter can not become President or Vice-President of the United 
 States. 
 
 Birth may be actually or constructively within the United 
 States. The first includes all actual births within the territory 
 of the United States, except of children of parents resident here 
 in the diplomatic service of some foreign government, or who 
 are alien enemies within the territory. (169 U. S. 649.) The sec- 
 ond includes all births in foreign countries, or on the seas, when 
 the parents are citizens and engaged in the diplomatic service 
 of the United States, and also when both parents are citizens of 
 the United States but temporarily absent. (5 Blatch. 18; 50 
 Fed. Rep., 310.) 
 
 Naturalization. — The Federal Constitution puts the subject of 
 naturalization in the hands of Congress (Const,, Art. I, Sec. 3c-5), 
 and Congress has passed general laws on the subject, under which 
 the State governments are authorized to act. (Act April 14, 
 1802.) This power of Congress to naturalize, so as to make 
 citizens of the United States, is exclusive, and can not be exercised 
 by the States. (2 Story on Const., Sec. 1104; 7 How., 556; 19 
 How., 393; 143 U. S., 160.) The States may, however, confer 
 such rights upon persons resident within their borders as they 
 see fit, even though they be such as are usually enjoyed only by 
 citizens. (10 How., 393; 143 U. S., 160; 4 Dill., 425; 5 C. C. A. 
 [T. C. A.], 31 and note.) The State can thus confer the right 
 to vote, and as voters for the Federal representatives and presi- 
 dential electors are the same as qualified voters for house of rep- 
 resentatives in the particular State, it follows that the State can 
 practically withhold the right of suffrage in Federal elections 
 from citizens of the United States and confer it upon persons not 
 such citizens. (See former authorities.) 
 
 Who May Be Naturalized. — Any alien friend who is a white 
 person or of African descent may be. But Chinese, Sandwich 
 Islanders, Japanese, and Burmese can not. But it has been held 
 that a Mexican may be. 
 
 The children of the above classes, born in the United States, and 
 whose parents are not in the diplomatic service, are citizens 
 (10 Fed., 456.)
 
 148 AMJ5RICAN BLBMSNTABY LAW. 
 
 Process of Naturalization. — There are two distinct steps in 
 naturalization: (1) The declaration of intention. (2) The ac- 
 tual adoption into citizenship. The first is a sworn statement 
 by the alien, before some court of record or its clerk, that he 
 desires to become a citizen of the United States, and renounces all 
 foreign allegiance. This must precede the final action by at least 
 two years. The final action is taken by appearing before a court 
 of record, in open court, and declaring on oath that the person 
 will support the Constitution of the United States, and renounces 
 all foreign allegiance. He must also prove that he has made the 
 former declaration in 'due form, that he has resided in the United 
 States for five years and in the State or territory in which the 
 court is held for three years, that he is well disposed to the 
 United States, and has conducted himself properly during his 
 residence here. 
 
 Naturalization confers citizenship, but not necessarily all poli- 
 tical privileges. Citizenship and allegiance are correlative terms, 
 and the citizen is entitled to the full protection of the law in 
 all his rights, personal and property, but he is not necessarily 
 entitled to all political privileges, or rights, as they are frequently 
 termed. Political privileges or rights are enjoyable by such per- 
 sons only as the sovereign sees fit to designate. Many citizens 
 have limited political rights, as women and infants, who are not 
 permitted to vote, persons who are deaf or blind, or who can not 
 read or write, who are ordinarily relieved from jury service, per- 
 sons not having legal qualifications, and hence debarred from 
 holding office, etc. The privilege of voting can be taken away 
 from classes once enjoying it, provided the exclusion be not 
 based on race, color, or servitude. The provisions of the Federal 
 Constitution, as to rights of citizens, have been already given. 
 
 Subjects. 
 
 This term applies, or is sometimes used to apply, to the same 
 persons as citizen, but this is not accurate. Its proper meaning 
 is confined to monarchical forms of government, and indicates 
 one who owes permanent allegiance to a monarch. 
 
 Denizens, in English Law, are persons not citizens and not nat- 
 uralized, but who have been granted some special privileges by 
 the King. By analogy the term is here applied to persons not
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 149 
 
 citizens, but residents who, by treaty or by some legislation, en- 
 joy some privileges beyond those enjoyed of common right by all 
 residents, and who owe a qualified allegiance on that account. 
 The condition is anomalous and infrequent, and the status of the 
 person in each instance depends on the treaty or statute out of 
 which the relation grows. (Andrews' Amer. Law, 3.) 
 
 Aliens are citizens or subjects of a foreign nation or State; 
 that is, persons born out of the jurisdiction of the United States, 
 and who have not been naturalized. 
 
 An alien woman who marries a citizen becomes a citizen, but 
 the converse does not hold good, and a citizen woman who marries 
 an alien does not thereby lose her citizenship. (56 Fed., 536.) 
 
 Aliens have such rights and privileges in a country as its laws 
 allow them. (149 U. S., 698 ; 12 Wall., 457 ; 153 U. S., 458.) 
 
 The policy of the United States has usually been liberal in its 
 dealing with aliens, and they ordinarily enjoy large privileges 
 here. Their purely personal rights and rights in and to personal 
 property are almost, if not entirely, identical with the rights of 
 citizens in those regards. Their rights as to real property are 
 more limited, and are usually defined by statute. (For Texas 
 statutes see Kev. Stats., 1895, Arts. 9-15.) 
 
 The above applies to alien friends. Alien enemies are the 
 subjects of States at war with the United States. Formerly they 
 could hardly be said to have legal rights. The tendency of 
 modern civilization is to ameliorate this condition. 
 
 Persons Sui Juris, or Normal Persons. 
 
 Persons who possess normal intellects and wills, and who are 
 not subjected to influence supposed by law to be controlling, are 
 called sui juris. Persons in this normal condition, in goveru 
 ments such as ours, are the real sovereigns and law-makers. The 
 governments are organized, maintained, and operated by them; 
 the law is the result of their judgment, and embodies their au- 
 thoritative will. Each is subject to it, and each has a voice in 
 its making, and one of the chief guarantees of justice and modera- 
 tion is found in the fact that they who make the laws are also 
 bound to obey them. As the rules for regulating the conduct of 
 all persons are made and enforced by these normal individuals, 
 it follows that the law practically embodies their standards of
 
 150 AMERICAN ELEMENTARY LAW. 
 
 right and their conceptions of propriety, modified, of course, by 
 matters of practicability, as before indicated. It is, therefore, 
 essentially true that the law's standard by which to measure 
 conduct is the average man. 
 
 Not only are the laws made by him, but primarily they are 
 made for him, and the rules of conduct prescribed are such as 
 he should observe, and the protection afforded it such as he should 
 have. 
 
 Persons Non-Sui Juris, or Abnormal Persons. 
 
 The class of persons designated as non-sui juris includes those 
 who are abnormal, or rather below normal in intellect or will, and 
 those who are subjected to influences by others which are sup- 
 posed by law to be controlling. Such persons, while in this con- 
 dition, have no direct part in the formation or operation of the 
 government, nor any voice in the making of the laws, though they 
 frequently share in its burdens and always in its benefits. The 
 rules regulating their rights and duties vary from those provided 
 for the normal person as their special needs may require. These 
 variations usually take the form of lessened capacity to divest 
 themselves of rights or to assume obligations. The extent to 
 which these deviations go, and the circumstances and length of 
 time under which they exist and the methods of their termination 
 vary with the different facts on which their disabilities are based. 
 
 The classes of persons usually regarded non-sui juris are per- 
 sons mentally unsound, persons under duress, persons in a state 
 of intoxication, infants and married women. 
 
 Considering these in their order, we have: 
 
 Insane Persons. 
 
 1. The lack of mental capacity to enable one to appreciate in- 
 telligently the nature of conduct and the natural consequences 
 to result therefrom, or of sufficient will power to enable him to 
 determine his course with regard thereto, of necessity removes 
 the person from among the normal and constitutes incapacity 
 both in fact and in law. So it is everywhere held that such a 
 person shall be protected from the consequences of his voluntary 
 acts, so far as they result in injury to the public or in attempted 
 voluntary assumption of new legal relations; that is, from lia-
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 151 
 
 bility for crime and improvident contracts. But such an one is 
 still capable of doing actual injury to another, and in such case 
 the loss must be borne by one or the other, the abnormal agent 
 or the innocent sufferer. It is held as a very general rule that 
 it is better for it to fall on the agent than the victim. If, how- 
 ever, the wrong be such an one that an affirmative evil intent is 
 an essential element, a person non compos mentis being incapable 
 of entertaining such an intent, can not commit the wrong. 
 
 We therefore find these rules to be of practically universal 
 application. 
 
 (1) An insane person, one mentally incapable of understand- 
 ing the nature and consequences of certain acts or omissions or 
 of controlling himself with regard thereto, is not responsible, 
 criminally, therefor. 
 
 (2) A person in this condition can not, by agreement, bind 
 himself to do or forbear any act or omission so as to create a 
 valid contract or obligation against himself, except it be for 
 necessaries. If, however, the other party to the agreement acted 
 in ignorance of this abnormal condition and without legal notice 
 thereof and has changed his condition in dependence on the con- 
 tract, the right to be relieved from the agreement is coupled with 
 the requirement that the insane person shall put the other person 
 in statu quo. Such an one can not represent himself before the 
 courts, but must appear by guardian, regular or special. 
 
 (3) Such a person is responsible in compensatory damages for 
 torts committed by him which do not include an element of intent 
 to do evil. If the tort be one to which a specific evil intent is 
 necessary, he can not commit it, and is not responsible for it. 
 He can not be held responsible for punitive or exemplary dam- 
 ages. 
 
 If the condition is temporary, and not dangerous to others, the 
 negative protection afforded by the above rules of non-liability is 
 deemed sufficient. If it be continuing but not violent, in addition 
 to the non-liabilty, a guardian should be appointed to conduct the 
 affairs of the insane person, under the direction of the proper 
 court. If the condition be violent, other considerations enter 
 into the matter and the safety of the public, as well as of the 
 individual, is to be considered, and if necessary he may be 
 restrained of his liberty.
 
 152 AMERICAN ELEMENTARY LAW. 
 
 Persons under Duress. 
 
 2. Duress is another partial incapacity. It consists in such a 
 state of facts as amounts to coercion, overcoming the will of the 
 party and destroying, for the time being, his free agency. In 
 such case the person apprehends the nature and consequences of 
 his act, but is not free to choose between performing it and leaving 
 it alone. The circumstances must be such as to be calculated to 
 overcome the will of the particular person and must, in fact, 
 have had that effect. When this is shown, it will avoid a con- 
 tract into which the person has been forced; but, with the ex- 
 ception of coercion exercised by the husband over the wife, it 
 is not a defense to an action for tort. In some instances, it ex- 
 cuses an act otherwise criminal, and in others it does not. For 
 rules governing this subject, reference must be had to works on 
 Criminal Law. 
 
 Drunken Persons. 
 
 3. When drunkenness has been so protracted and severe as to 
 result in delirium tremens, it is recognized as a species of insanity, 
 and is governed by the general rules given above. When it is 
 temporary, it relieves from liability on agreements entered into 
 under its influence, provided the party act promptly and justly, 
 in disaffirming when he becomes sober. Drunkenness does not 
 relieve from liability for tort or crime, except when some intent 
 of which the person is incapable is an essential element of the 
 wrong. If a person desiring to do a wrong, whether a tort or 
 a crime, makes himself drunk in order to do so, his intoxication 
 will be no defense, nor even mitigation, but will rather be an 
 aggravation. 
 
 Married Women and Infants. 
 
 The disabilities of coverture and infancy will be considered in 
 a subsequent portion of our work. 
 
 THINGS. 
 
 A thing is any existence not a person, natural or artificial. 
 They are divided into corporeal and incorporeal. Corporeal 
 things are those which are discernible by the physical senses, 
 usually having tangible form and substance. Incorporeal things 
 are those existing only in thought or idea. They may be quite 
 as real, practical, and important as things tangible, though they
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 153 
 
 can not be discovered by the physical senses. Probably the most 
 familiar illustration of an incorporeal thing is a debt. One man 
 loans to another a sum of money which the borrower promises to 
 repay at a certain time. The borrower obtains the money, the 
 lender obtains the enforcible promise of repayment, or the debt 
 from the borrower to him. In legal contemplation this debt is 
 as real as the money for the repayment of which it was incurred. 
 Another illustration is found in an easement which one man has 
 upon the property of another, say a right of way across his land. 
 The right of way is not the land, but a simple right of user in 
 a designated manner for designated purposes; yet, this right of 
 user is real, valuable and protected by law. 
 
 The law is concerned in and deals with things only as they are 
 connected with persons, and are the subjects of rights or bases of 
 liability as between persons. 
 
 The relationship between a person and a thing by which the 
 former is entitled to full legal dominion over the latter is called 
 ownership. Ownership may be resolved into several elements, 
 each of which may be the subject of legal right These elements 
 are possession, use, profit, modification, and disposition. When 
 the relationship between a given individual and a given thing 
 embraces all these elements, he is a general owner. When the 
 relationship between the person and the thing embraces some 
 one or more, but not all, of these elements, or all of them for a 
 limited time or to a limited extent, the relationship is called 
 limited or special ownership. 
 
 When the facts are such that the law recognizes and undertakes 
 to enforce and protect the relationship between the individual 
 and the thing, the person has a legal right in and to the thing 
 to the extent of such recognition and protection. 
 
 The rules of law regulating these relationships between persons 
 and things constitute the law of property, and are essential to 
 the well being and the safety of every State. The different inter- 
 ests that persons have in things, when recognized and protected 
 by law, are called estates, and the facts and instruments by 
 which these estates are proven are called titles. 
 
 The most important classification of things, legally speaking, is 
 into real and personal property. This classification takes into 
 account both the nature of the thing and the quality of the estate
 
 154 AMERICAN ELEMENTARY LAW. 
 
 held in it. Eeal property includes all immovable and enduring 
 things, whether corporeal or incorporeal, held under an estate 
 that is inheritable, indeterminate in its duration, and lasting as 
 long as one life. Personal property includes all property not real, 
 as defmed above. 
 
 To properly regulate the conduct and rights of persons with 
 reference to things is one of the most important duties of gov- 
 ernment. The law governing these matters will be given at more 
 length in subsequent chapters on property. 
 
 CONDUCT. 
 
 The real subject matter of private municipal law is human 
 conduct. As legal rights involve and their enjoyment is secured 
 by control over the conduct of others, and as legal duty involves 
 subjection of conduct to control, it seems to follow logically that 
 the only way in which the law can deal with persons or things 
 is by prescribing and enforcing rules of conduct for or with 
 reference thereto. This is correct practically as well as theoret- 
 ically. It is, therefore, essential to have accurate ideas as to 
 what is conduct; what its characteristics must be for the law to 
 take cognizance of it; for whose conduct each person is respon- 
 sible, and to what consequences of conduct legal liability attaches. 
 
 Conduct is both affirmative and negative, and the law takes 
 cognizance of both. 
 
 Affirmative conduct, includes all human activity that in any 
 way manifests itself outside of the actor, that is, everything said 
 or done by any human being. No particular form of manifesta- 
 tion is necessary; it may be by speech, by look, or by any other 
 outward sign or action. It does not include unmanifested thought 
 or feeling. 
 
 Negative conduct, includes all failures to act when action is 
 a duty. Simple failure to act when there is no duty requiring 
 action is not conduct, but whenever a legal duty to act exists 
 failure to meet this duty is just as much a manifestation of the 
 person, his disposition and character as affirmative action could be. 
 
 The law takes cognizance of, and undertakes to regulate and 
 control both these affirmative activities and wrongful failures to 
 net, so far as in the judgment of the law-maker they appreciably 
 violate the just rights of others and are of such kind that they
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 155 
 
 can be dealt with practically through governmental agencies. 
 If conduct, affirmative or negative, does not violate the just rights 
 of others or is of such kind that it or its consequences cannot 
 practically be inquired into and justly weighed and determined, 
 the law does not undertake to control it. 
 
 The law does, however, as just said, take cognizance of all out- 
 ward conduct, affirmative or negative, which, in the judgment 
 of the sovereign, needs and is practically subject to control. It 
 declares its will concerning such conduct in authoritative rules, 
 to be observed by all persons to whom they are addressed, and 
 which are sanctioned by appropriate rewards for conformity or 
 penalties for nonconformity. Conduct approved by the sovereign 
 is lawful ; conduct disapproved by the sovereign is unlawful, and 
 subject to penalty. 
 
 To subject one to legal penalty, his conduct must be unlawful. 
 As we have seen, on the one hand, that all rules of law result in 
 the establishment of legal rights and duties between either the 
 public and individuals or between or among individuals as such, 
 and on the other that no legal right or duty can exist except by 
 the force of some rule of law, it therefore follows that every 
 unlawful act or omission must violate some legal right and its 
 correlative legal duty, and no lawful act can have such effect. 
 
 It is said by writers of high authority that one may break the 
 law. become legally a wrong-doer, in three ways: 
 By doing an unlawful act. 
 By doing a lawful act in an unlawful way. 
 By failure to do that which is a legal duty. 
 The first of these corresponds to our division of affirmative 
 wrong conduct, and the third to negative wrong conduct. I have 
 been unable to find any appropriate place for the second sub- 
 division, and its introduction seems to lead to confusion. It is 
 used to include those instances of wrong which consist of sonic 
 one or more affirmative unlawful acts, committed in the prosecu- 
 tion of some enterprise in itself lawful, as an assault by a con- 
 ductor upon a passenger on his train. Here the operation of 
 the train, the general enterprise, is lawful ; but the particular 
 manner of doing it in the supposed case, viz. : assaulting the 
 passenger, is unlawful. It seems all such cases are embraced 
 strictly in the first head, affirmative wrongdoing. It is not the
 
 156 AMERICAN ELEMENTARY LAW U 
 
 lawful enterprise of running the train that constitutes the legal 
 wrong, but the affirmative act of assaulting the passenger. This 
 is in itself a distinct and independent violation of the law, and 
 is not, it seems, aptly described as an unlawful way of doing a 
 lawful act. We will therefore look more directly to the par- 
 ticular conduct, and include all legal wrongs under the two 
 heads ; affirmative acts violative of legal rights, and negative con- 
 duct in disregard of legal duty. 
 
 Affirmative Wrong-doing. 
 
 There are so many and such widely differing methods of doing 
 wrong affirmatively that it is not practicable either to deal with 
 them all in the same way, or even to enumerate and classify them 
 with any advantage at this stage of our study. The law deals 
 with each in the manner that is deemed most reasonable and 
 effective, seeking to establish rules of conduct which shall at once 
 best subserve the public good and be most just to individuals, 
 making its rules general, applying to all persons alike, and pro- 
 portioning the penalty for wrong-doing to the nature of the 
 wrong. In many instances the condition of the wrong-doer, his 
 intent and motive, are taken largely into account. In public or 
 criminal law these considerations many times are controlling; in 
 civil law they have greater or less weight according to the cir- 
 cumstances of the case. These matters have been somewhat 
 considered, and will be taken up in subsequent chapters. 
 
 Negative Wrong-doing. 
 
 Every affirmative violation of a right involves a failure to dis- 
 charge the correlative duty, but usually the law deals with these 
 in their positive aspect of affirmative wrong, and they fall under 
 the head treated in the preceding section. It is with omissions, 
 failures to do what should have been done, that we are now deal- 
 ing. These are of fewer kinds than affirmative wrongs, and the 
 strong tendency is to group them under the general head of 
 negligence. All, of course, can not be forced into this head, and 
 those which can not be are dealt with specifically, under appro- 
 priate designation. But after all these are excluded, the wrongs 
 still remaining under the general term negligence are so numerous 
 and their underlying doctrines are so important that they require 
 special attention
 
 CHAPTER IIL 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER (CONTD.). 
 MENTAL CONDITION AND ATTITUDE, AS AFFECTING CONDUCT. 
 
 We have already considered this subject briefly in several con- 
 nections, but some further treatment of some phases of it seem 
 desirable here. 
 
 Human conduct is complex, consisting of external acts, affirma- 
 tive or negative, and mental condition and attitude. Both in 
 ethics and in law, some of the most difficult questions which arise 
 are involved in the true determination of the quality of conduct. 
 In a general way, the standards employed in each are the same, 
 though, for practical reasons, the law can not cover the full 
 ground occupied by ethics. One difference is readily apparent: 
 Ethics goes to the very root of the matter, and deals with mental 
 conditions, desires, motives, while they are still in the mind and 
 heart of the individual; while law can not notice or deal with 
 these until they are in some way manifested. Something preju- 
 dicial to the rights of the public, or of one ,or more individuals, 
 must be done manifesting this mental condition before the law 
 can take cognizance of it. The whole purpose need not be fully 
 accomplished to bring it within the law's jurisdiction. Any ex- 
 ternal manifestation of the inward state sufficient to indicate 
 clearly its existence and nature is sufficient; but something of 
 this sort must appear. We may, therefore, dismiss unmanifested 
 design and motive from consideration. 
 
 Exceedingly difficult questions still remain with reference to 
 the effect of mental capacity and of design and motive on conduct. 
 Shall conduct, unaccompanied by motive or design, as the action 
 of an insane person or pure accident, lead to legal responsibility ? 
 Shall all action prompted by evil motive and which results in 
 injury to another be punished? Shall all action prompted by 
 proper motive go unpunished, no matter how harmful to others? 
 
 When each of the foregoing questions has been answered, shall 
 the answer be of universal application, enforced inexorably, under
 
 158 AMERICAN ELEMENTARY LAW. 
 
 all conditions, or shall it be only a rule of general application, 
 admitting of exceptions ? And if so, in what shall the exceptions 
 consist, and when shall they be recognized? Again, if difference 
 in mental capacity shall be taken into account, in what shall these 
 differences consist, and how and by what standards shall they be 
 determined ? In short, in determining the law 's recognition of and 
 control over outward conduct and its consequences, how far shall 
 the presence or absence of mental capacity, or of intent to do the 
 act, and accomplish the result, and how far shall the motive in- 
 ducing such intent be regarded? No legal questions are more 
 difficult to answer, whether the attempt be made theoretically or 
 practically. 
 
 Deducing our answers from the body of the law, we find that 
 no statement of universal application can be made, and to approx- 
 imate an intelligible reply, the questions must be subdivided, and 
 looked at from at least three points of view: (1) From the point 
 of view of criminal law; (2) of tort law ; and (3) of contract law. 
 Taking these up in their order and approximating, we find the 
 result to be as follows: 
 
 In Criminal Law. — In determining the quality of conduct, in 
 criminal law, mental capacity, the purpose to do, and the motive 
 with which a thing is done or foreborne are almost universally 
 considered, and made conclusive; that is, mental capacity and 
 guilty knowledge or evil intent are essential elements in almost 
 all crime. There are a few minor police regulations in which 
 this is not true. To illustrate the place of motive and intent, 
 in criminal law, let us take homicide. Taking human life is not 
 necessarily criminal. The quality of the act depends upon the 
 mental capacity of the slayer and the prompting motive and the 
 accompanying intent. If the person committing the homicide is 
 insane, it is no offense. If it be by an officer in obedience to the 
 judgment by a court of competent authority, after due and legal 
 trial, it becomes a legal duty. If it be in the necessary defense 
 of one 's life, it is justifiable. If it result from inevitable accident, 
 it is excusable. If it be from slightly culpable negligence, it is 
 a misdemeanor. If upon implied malice, it is murder in the 
 second degree. If it be upon express malice aforethought, it is 
 murder in the first degree. In all these cases, the physical fact 
 of taking life is the same, but the legal act, by absence of mental
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 159 
 
 capacity, or modified by motive and intent, ranges from legal duty 
 to one of the most atrocious crimes. The same thing is true with 
 reference to dealings with property. If one person takes prop- 
 erty belonging to another, under an honest but mistaken claim of 
 right, the act would not be criminal; but the same physical act, 
 accompanied by a fraudulent design to appropriate to one's use 
 the property of another, thus depriving the owner of it, would 
 be theft. So, to pass a forged instrument would not be a crime, 
 while to knowingly do so is a felony. So, as stated above, we may 
 conclude that the mental attitude of the actor is an important and 
 controlling consideration in criminal law. 
 
 In Tort Law. — The rules constituting the law of torts are estab- 
 lished by the sovereign for the protection of the private rights 
 of individuals. The validity of these rules and the legal rights 
 and duties resulting from them do not depend upon the assent of 
 the parties. The sovereign says, through its regular agencies, 
 that certain rights are just, and entitled to legal protection, and 
 that all other persons must recognize them, and leave them in- 
 violate. This duty of noninterference is imposed upon the per- 
 sons owing it by the will of the sovereign, and is not assumed by 
 the assent or conduct of those from whom it is due. It is ap- 
 parent, if the assent of the party obliged is not essential to the 
 obligation, that no question of his mental capacity or incapacity 
 can enter into the existence or nonexistence of the duty. It is 
 a rule of almost, if not universal application, that if a duty exists 
 and is not discharged, or is affirmatively violated, the motive of 
 the person disregarding or disobeying the duty is not to be con- 
 sidered in determining his liability to give just compensation for 
 loss resulting from the breach. If one person owns property, and 
 another destroys it, the loss in value must be borne by one or 
 the other, or be divided between the two. The extent of the loss 
 is neither increased nor lessened because the party occasioning 
 it was insane, or acted designedly or inadvertently. The almost 
 universal rule of tort law is that he who, by wrongful conduct, 
 directly occasions injury to another must make the loss good, with- 
 out reference to mental condition, or to design or motive. This 
 is not universally true; for, in a few exceptional cases, whether 
 or not an act or omission is to be regarded as a tort depends 
 ^pon whether it is prompted or accompanied by an evil motive.
 
 160 AMERICAN ELEMENTABY LAW. 
 
 In such cases absence of mental capacity or of evil motive prevents 
 the conduct from being unlawful, and, of course, all legal liability 
 therefor. These cases seem always to be those in which the act 
 or omission would, under general principles, be unlawful, but in 
 which, for some reason of public policy it is licensed or permitted 
 to go unpunished if unaccompanied by evil motives. In such 
 cases, the license or permission is limited to those instances in 
 which the act or omission is strictly inadvertent, or accompanied 
 with and prompted by proper motives, and is not extended to 
 those instances in which evil motives exist. So as to these, that 
 is, cases prompted by evil motives, the evil motive destroys the 
 law 's license, and they are left on the original basis of unlawful- 
 ness and the consequent liability. 
 
 To illustrate : The general rule of law is that every one is 
 entitled to complete immunity of his body from all contact what- 
 soever by other persons. Under this doctrine, the application of 
 any force, however slight or however innocent the motive, would 
 be unlawful. But society could not exist upon this basis. To 
 make unlawful and actionable all the casual contacts of social life 
 would be impracticable, and would put well-disposed persons com- 
 pletely at the mercy of the ill-natured and litigious. Therefore, 
 as a matter of public good, the law declines to take cognizance of 
 the slight and inconsequential applications of force incident to 
 ordinary life, so long as they are merely casual, and not the result 
 of evil design or motive. If, however, one, designing to humiliate 
 or insult or injure another, applies to his person no more force 
 than frequently occurs in the conduct of ordinary affairs, the law 
 holds him responsible, and will not only prosecute him criminally, 
 but gives to the individual whose person has been thus maliciously 
 interfered with a right to recover damages. 
 
 And so through the whole range of human conduct. "Whenever 
 an interference with individual right is exeused on the grounds 
 of public policy and convenience, the excuse is designed for the 
 law-abiding and well-meaning, and not as a shield to the vicious. 
 
 "When we say that the absence of evil motive is not ordinarily 
 a defense against liability in the law of torts, we mean a defense 
 against just compensation for injuries actually sustained. There 
 is an anomalous doctrine known as punitory or exemplary dam- 
 age. It has no place in enlightened jurisprudence, but is so
 
 MUNICIPAL. LAW AND ITS SUBJECT MATTER. 161 
 
 firmly established by precedent that it seems useless to decry 
 against it. Under this doctrine, where a wrong has been com- 
 mitted against an individual through gross wantonness or with 
 evil motive, the wrong-doer may be compelled, at the suit of the 
 injured party, to pay to him a sum in addition to the actual 
 injury sustained, by way of punishment or "smart money." 
 Such damage is only recoverable in cases of gross wantonness or 
 malicious injury, and in this character of cases and as to this 
 kind of damage the mental attitude of the wrong-doer is material. 
 
 In Contract Law. — Contract obligation always has its legal basis 
 in the agreement of the parties. Assent of the mind being essen- 
 tial to an agreement, mental capacity at the time the contract is 
 entered into is always a controlling question, and if there be no 
 such capacity, there can be no assent ; if there be no assent, there 
 can be no agreement; if there be no agreement, there can be no 
 contract, so that contract obligation can not exist except as a 
 result of mental capacity existing when the obligation is assumed. 
 It must, however, be borne in mind that contract obligation comes 
 into being as soon as an agreement having all the legal require- 
 ments is entered into, and that obligation, once fixed, is not there- 
 after affected by change in the mental condition of the parties, 
 subsequently arising, and the obligation must be met by the par- 
 ties upon whom it rests, and motives and reasons for failure can 
 not be received as a discharge thereof. "We therefore find that 
 the mental capacity of the parties to an agreement, at the time 
 it is entered into, is of vital consequence, and that no true con- 
 tract obligation can be assumed in the absence of such capacity, 
 but that subsequent mental conditions or motives inducing the 
 breach of contract obligation are immaterial, and are not be taken 
 into account in determining the rights of the parties. 
 
 In this connection, we must distinguish between ordinary con- 
 tracts which may be performed by a single act, or which do not 
 involve continuing personal performance, and those which do 
 have the last characteristic. If the agreement be for service, or in 
 any other way involves the exercise of mental or bodily capacity, 
 the loss of either to such an extent as to render performance im- 
 possible will, as a rule, relieve from liability for subsequent non- 
 performance by the disabled party, and would also relieve the 
 other from further obligation under the agreement; the law 
 11
 
 162 AMERICAN ELEMENTARY LAW. 
 
 making such adjustment for any partial performance which had 
 taken place before the disability occurred as justice requires, 
 under all the circumstances of the case. 
 
 Recapitulating, we find that, in criminal law and tort law, 
 duty is imposed by the sovereign and not assumed by the obligor, 
 while in contract law the duty is not imposed by the sovereign, 
 but is voluntarily assumed by the obligor, and is then recognized 
 by the sovereign. 
 
 That in determining what conduct shall be unlawful from the 
 criminal law point of view capacity to understand the act and 
 its consequences, the design to do the act, and the motive prompt- 
 ing it, are of the uttermost consequence, and in almost all in- 
 stances give legal character to the conduct. 
 
 That in determining what conduct is unlawful, from the tort 
 point of view, the question is usually to be decided by the nature 
 of the overt act or the manner of its performance, and not by 
 the accompanying mental condition and attitudes ; that in a few 
 exceptional cases, as explained above, this rule is not applied. 
 That where conduct is unlawful in itself, and is either malicious 
 or grossly wanton, in addition to compensatory damage the law 
 allows punitive or exemplary damage; that, in such cases, the 
 mental attitude is important. 
 
 That in contract law mental capacity at the time the agreement 
 is entered into is absolutely controlling; that subsequent mental 
 attitudes either as to mental capacity or motive are immaterial, 
 except in those instances in which the contract contemplates 
 service of some kind. 
 
 Standards of Mental Capacity. 
 
 Whenever legal responsibility for conduct is made to depend on 
 the mental capacity of the party at the time of the act or omission, 
 the standard or test by which to judge such capacity is: Did the 
 person, at the time of such act or omission, have sufficient mental 
 capacity to understand the nature and consequences of such con- 
 duct, and to contemplate and realize its natural and probable 
 results? If so, the person is capacitated and legally responsible; 
 if not, he is incapacitated and legally irresponsible. The test is 
 confined to the particular matter under investigation and the 
 condition of the mind at the time the act was done or determined
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 163 
 
 upon. The range of inquiry may be widely extended in order 
 to arrive at the truth with reference to the mental attitude as 
 to the particular conduct at the particular time, but ultimately, 
 the test is: Did he understand the nature and consequences of 
 that particular act or omission, and was he capable of contem- 
 plating and appreciating the natural and probable results at the 
 time the transaction occurred? 
 
 Ignorance and Mistake. 
 
 How shall conduct based on design or actuated by motive, in- 
 duced by ignorance of material matters or mistake regarding 
 them, be classed and judged? Stating it differently: Shall ig- 
 norance, or mistake of law or of fact, ever be taken into account 
 in determining the quality of conduct ; and, if so, when, and under 
 what circumstances, and with what effect? 
 
 It is a very general rule that simple ignorance of law does not 
 excuse conduct otherwise illegal, nor constitute a defense against 
 claims or demands otherwise good. This is true in criminal, tort, 
 and contract law. 
 
 Deception as to the law may be considered in determining rights 
 and liabilities between the deceiver and the deceived, when the 
 latter had, under the circumsstances, a right to rely upon the 
 former for legal information and he purposely, or through gross 
 negligence, misled him. 
 
 Ignorance of fact, in criminal law, excuses when not attributa- 
 ble to negligence. Mistake of material fact, not attributable to 
 negligence, will excuse, in criminal law, when the conduct under 
 investigation would have been lawful had the assumed fact been 
 real. Ignorance of fact, or mistake of fact, rarely excuses, in 
 tort law, from liability for actual damages. As the existence of 
 a tort always depends on the unlawfulness of the act or omission. 
 in some rare cases, when the element of unlawfulness is dependent 
 entirely upon the criminal law, ignorance or mistake which pre- 
 vents the act from being criminal will also prevent it from being 
 tortious. These instances are exceptional and rare. 
 
 Ignorance or mistake of material fact by both parties to an 
 agreement will, in contract law, entitle either to set aside the 
 agreement. Ignorance or mistake of fact by one party, not 
 attributable to wrongful conduct by the other, or not going to
 
 164 AMERICAN ELEMENTARY LAW. 
 
 the existence or identity of the subject matter, or to the terms 
 of the agreement, will not avoid the agreement. If, however, 
 either party be mistaken as to the subject matter in the mind of 
 the other, or as to the terms of the agreement, there is no meeting 
 of the minds, and so no contract. Care must be taken here to 
 distinguish between mistake of the terms of the agreement, that 
 is, as to the words used, and mistake of the meaning of words; 
 for, if both parties use the same words, but with different mean- 
 ings, the words will control and be given their usual meaning and 
 both will be held to the agreement thus interpreted. If the 
 ignorance of one party be attributable to the other under such 
 circumstances as to constitute fraud, the defrauded party can 
 avoid the agreement. 
 
 Accidents. 
 
 There is another phase of conduct which should not be omitted, 
 that is, those occurrences which take place without intent on the 
 part of any one to bring them about, usually called accidents. 
 It is not unusual, even in law books, to define an accident as the 
 happening of an event without human agency. Such events cer- 
 tainly are accidents but there are many other events in which 
 human agency has been the real occasion of the occurrence which 
 are as truly accidental as those included in the above definition. 
 It is with accidents in this latter sense that the law deals most 
 frequently and with regard to which the student of law should 
 have the most accurate conceptions. 
 
 A better legal definition is, The happening of an event without 
 human agency or, if through human agency, without the con- 
 currence of the will of him by whose conduct it is caused. 
 
 The law divides accidents into two classes, avoidable and in- 
 evitable. Avoidable accidents include all such happenings as 
 would have been prevented if all the parties sought to be held 
 liable had fully discharged all their legal duties to prevent the 
 same. Inevitable accidents include all those happenings which 
 occur without human agency and those which occur through 
 human agency notwithstanding the parties sought to be held 
 liable had fully discharged all their legal duties in the premises. 
 
 Keeping this distinction in mind it is apparent that an avoid- 
 able accident should lead to liability on the part of those whose
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 165 
 
 failure of duty occasioned it to the full extent of the damage 
 directly resulting therefrom ; and that inevitable accident cannot 
 be made the basis of liability at all except by some one who by, 
 agreement or law, has become responsible for loss occasioned 
 thereby as an insurer. 
 
 It must always be borne in mind that liability for avoidable 
 accidents, as for all other legal wrong, is limited to the directly 
 resulting consequences, that is, those which should have been 
 anticipated as the natural and probable result of the wrongful 
 conduct. Thus, a railroad train was scheduled for a certain time. 
 It was delayed a considerable time by the negligence of one of the. 
 operatives. In proceeding upon its way on the delayed schedule, 
 it encountered a cyclone, which crossed its track for a width of 
 about one-fourth of a mile; the train was wrecked and its pas- 
 sengers injured. Had the train been on the regular schedule, 
 it would have passed the point where the cyclone crossed the 
 track some time before the cyclone arrived. The fixed rule of 
 law that a wrong-doer is not liable for all consequences of his 
 wrongful act, but for those only which he intended, or which an 
 ordinarily prudent person would have foreseen as probable and 
 natural, was applied, and it was Held : that the resulting wreck 
 was an inevitable accident, as there was no causal connection be- 
 tween the negligence which delayed the train and the injury — as 
 no human foresight could have anticipated that such delay would 
 naturally or probably result in a meeting of the train with the 
 cyclone.
 
 CHAPTER IV. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER (CONTD.). 
 
 TO WHOSE CONDUCT DOES THE LAW LOOK IN AWARDING BENEFITS 
 AND FIXING LIABDLITY? 
 
 Primary Range of Right and Liability. 
 
 The normal person is entitled to all benefits directly arising 
 from his own lawful conduct put forth in his own behalf ; on the 
 other hand, he is legally responsible for all injurious consequences 
 arising directly from his own unlawful conduct. The scope of 
 his own action and the benefits arising therefrom and the liabilities 
 attaching thereto constitute the primary range of right and 
 liability. Extensive as this sphere of action, and as far-reaching 
 as its consequences are, it by no means covers the whole field of 
 right and liability resulting from conduct. 
 
 Secondary Range of Right and Liability. 
 
 This brings us to the larger subject of the rights and liabilities 
 of one person growing out of the conduct of another. It is ap- 
 parent that, in carrying on the social and business activities of 
 the world, no one can confine his own operations strictly to him- 
 self, but of necessity must come in contact with others, and for 
 any effective life he must operate with and through others. This 
 practical condition is recognized by the law, and by far the greater 
 number of rights to which one is entitled and liabilities to which 
 he is subjected grow out of and depend upon the conduct of 
 other persons. 
 
 There are numerous legal doctrines upon which these rights 
 and liabilities are based. These are: (1) legal identity; (2) sub- 
 stitution; (3) co-operation; (4) express agreement; (5) non- 
 assignability of duty and (6) in a few rare cases public policy 
 as expressed in some statute creating such liabilities. There are 
 other analogous doctrines, which are sometimes treated as lead- 
 ing to such right and liability, such, for illustration, as the owner- 
 ship of property, but which, upon closer inspection, appear not
 
 MUNICIPAL LAW AND ITS SUBJECT MATTEB. 167 
 
 to belong in this enumeration, as liability arising from ownership 
 i* referable to the conduct of the owner himself. 
 
 Legal Identity. 
 
 In the first edition of the text the term merger was used to 
 indicate the doctrine now under consideration. That term has a 
 well established legal meaning. The doctrine being dealt with 
 is only one of a number of applications of this meaning and 
 hence the phrase legal identity seems preferable in this con- 
 nection. 
 
 Legal identity is, therefore, used to indicate the Common Law 
 doctrine that the legal existence of the woman passes into that 
 of the husband upon marriage. The old Common Law doctrine 
 is fairly well expressed in the statement that upon marriage the 
 man and the woman became one and that one is the man. 
 
 This doctrine has been very much modified in later years but 
 some of its legal results remain in the present law. Except as 
 modified by statute, in Common Law countries upon marriage all 
 the property rights of the woman, speaking generally, that is, 
 the title to her personalty and the beneficial use of her realty vest 
 in the husband and he is made responsible for all of the wife's 
 antenuptial debts. The beneficial results of her conduct inure 
 to his benefit and civil liability resulting from her wrongs, so far 
 as it attaches to any one, rests upon him. In some cases this 
 doctrine is carried so far as to make him liable for her criminal 
 acts. 
 
 In the Roman Law this Common Law doctrine of merger is 
 unknown ; the marital relation is more in the nature of a conjugal 
 partnership, each spouse retaining his and her separate property 
 rights and obligations, and each being entitled to the profit arising 
 from his or her respective estates. 
 
 It is difficult to state any general rules of American law on 
 this subject at this time, as Common and Civil Law ideas have 
 acted and re-acted upon each other until there is no longer uni- 
 formity on the subject. Enough of the general Common Law 
 doctrine, however, remains in our American jurisprudence to 
 hold the husband responsible for all torts committed by his wife, 
 even though in opposition to his will, and for all contracts made 
 by her in procuring necessaries for herself and family, even
 
 168 AMERICAN ELEMENTARY LAW. 
 
 though he had expressly forbidden the agreement. It is cus 
 tomary to treat this last liability as arising from agency by 
 necessity, but it is apparent that it is but an application of the 
 doctrine of legal identity. 
 
 This power of the wife to bind her husband against his will 
 for necessaries must be distinguished from her general authority 
 to act and make contracts for him in the reasonable and proper 
 conduct of their household affairs. This last authority is clearly 
 one of agency and comes properly under the doctrine of sub- 
 stitution. 
 
 Substitution. 
 
 The second of these doctrines is that which permits one person 
 to substitute another for himself in the exercise of ordinary 
 powers and rights. The doctrine does not extend to powers, 
 rights or privileges growing out of special and confidential re- 
 lations in which the rights of other persons or of the public are 
 involved. These must be exercised by the person himself, or not 
 at all. The range of practical substitution is, nevertheless, ex- 
 tensive, and of extreme importance. The effect of the substi- 
 tution is to make the substitute or representative, the alter ego 
 or other self, of the constituent or party making the substitution, 
 within the limits of the activity, enterprise or matter included 
 within the substitution, or, as it is frequently expressed, the con- 
 stituent is bound by the act of the representative committed 
 within the scope of the employment. As to what matters are em- 
 braced in the substitution, and how the substitute is to perform 
 his service, the agreement of the parties and instructions given 
 by the constituent to the substitute are binding as between them 
 and are to be taken as the basis of adjustment of their rights re- 
 spectively. These agreements and instructions constitute the 
 true bounds or limits of the substitution and are, therefore, also 
 binding upon all parties who have knowledge of them. They are 
 not binding, however, upon third persons not having knowledge 
 or notice of their existence. The constituent having substituted 
 his representative for himself in the exercise of a certain power 
 or right, third persons not otherwise advised are permitted to 
 judge of the extent and scope of the substitution and the author- 
 ity of the substitute by the facts and circumstances surrounding
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 169 
 
 the transaction as they would be reasonably interpreted by a man 
 of ordinary judgment and prudence. Hence it follows that, al- 
 though the constituent may have expressly forbidden the doing 
 of a certain thing within the reasonably apparent scope of author- 
 ity of the substitute, if, nevertheless, the substitute does do the 
 forbidden thing, and in so doing unlawfully interferes with the 
 rights of others, who have no knowledge or notice of these orders 
 or instructions, these third parties can look to the constituent 
 and hold him responsible for the unauthorized and forbidden 
 wrong done by his substitute. 
 
 The most common examples of substitution are in the rela- 
 tions of master and servant and of principal and agent. In the 
 first, the master is the constituent, the servant is the substitute ; 
 in the second, the principal is the constituent and the agent the 
 substitute. It is quite difficult to draw clearly the line of separa- 
 tion between these two relations and to determine, under all cir- 
 cumstances, which, in fact, exists as between two individuals. 
 The most intelligent basis of classification seems to be that a 
 servant is one who is employed to exercise powers or rights when 
 the employment does not contemplate the exercise of the power 
 to contract and thus the establishment of new legal relations with 
 other parties, and that an agent is one who is employed to exercise 
 the powers and rights of the constituent to contract in such way 
 as to bring about or establish new legal relations with third per- 
 sons. Even this basis of separation is not free from confusion 
 as, under it, in many instances the same persons will, at the same 
 time, sustain toward each other both the relation of principal 
 and agent and master and servant, so that as to one act or series 
 of acts their rights and liabilities would be judged by the rules 
 of law applicable to master and servant, while as to other con- 
 current acts or series of acts they would be judged by the rules 
 of law applicable to principal and agent. This much of con- 
 fusion seems to be inherent in the situation. Fortunately, the 
 rules of law as to the two relations are based upon the same gen- 
 eral principles, and in their main features are identical. 
 
 Legal substitution, with few possible exceptions not requiring 
 notice in this connection, always results from agreement of the 
 parties. This agreement usually precedes the act done by the sub- 
 stitute for the constituent, sometimes it is concurrent with the
 
 170 AMERICAN ELEMENTARY LAW. 
 
 act, and sometimes is subsequent. The latter method of substi- 
 tution is called ratification, and has some characteristics peculiar 
 to itself. The first two classes, that is, the antecedent and con- 
 current, have nothing peculiar in their nature nor special in their 
 designations, except that in some contracts of service the minor- 
 ity or coventure of the servant is not an incapacity as to entering 
 into the agreement and subsequent incapacity to perform the 
 agreement will terminate it. 
 
 Co-operation. 
 
 The third doctrine upon which one is held responsible for the 
 conduct of another is co-operation. Where two or more persons 
 act together with a common design and understanding to ac- 
 complish a common purpose, each is responsible for the conduct 
 of the other, within the limits of the common design. The doc- 
 trine is simple, but far-reaching. In Civil Law, it is usually 
 known as co-operation, or joint action ; in Criminal Law, as con- 
 spiracy. In this, as in the doctrine of substitution, the limit of 
 liability as between the parties themselves, in those cases in which 
 adjustment between them is permitted at all, is the common un- 
 derstanding and agreement; but as between each of these par- 
 ties and third persons affected by their conduct, the limit of lia- 
 bility is the reasonable scope of the enterprise. To illustrate: 
 A and B agree together to acquire and conduct a certain business, 
 and A is put in charge, with an understanding between the two 
 that the business is to be conducted in a certain way and within 
 a certain limit of expense. If A should disregard this under- 
 standing and conduct the business on other lines and at greater 
 expense than agreed upon as between him and B, their rights 
 will be adjusted on the basis of the understanding, and A must 
 bear the loss incident to his departure. If, however, A should 
 do some act within the reasonably apparent scope of the business 
 or enterprise which should affect third parties, such parties could 
 hold both A and B responsible for injurious results; unless, of 
 course, the third party had knowledge of the limit of A's author- 
 ity. This illustration is an example of joint action in a lawful 
 enterprise, and gives the rules of law applicable there. If we 
 change it and have A and B engaged jointly in an unlawful 
 attack upon C. here no right of contribution would exist as
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 171 
 
 between A and B, both being guilty before the law. If A should 
 injure C by act within the original plan, B would be equally re- 
 sponsible with him for such injury. Also, if A should do some 
 act which had not been specifically agreed upon, but which was 
 such an one as should naturally and probably have been antici- 
 pated as a part or direct result of the carrying out of the common 
 design, both would still be responsible. If, however, A should 
 depart from the common design and do some act not included 
 therein, or not so connected therewith as to have been reasonably 
 anticipated as a part of or natural result of the scheme, then A 
 alone would be responsible 
 
 Express Agreement. 
 
 One person may further become responsible for the conduct 
 of another, not generally, but to a designated person or persons by 
 express agreement to that effect. The most frequent illustrations 
 of this are contracts of suretyship, and of insurance. In the 
 first, the party bound expressly agrees with the designated per- 
 son that another designated person will do a certain thing, and 
 if he does not, he, the surety or indemnifier, will do the act him- 
 self. In the second, the party agrees for a certain consideration 
 passing to him from another interested in the happening of a cer- 
 tain event or contingency, that upon such happening he will pay 
 to him or to those designated by him a certain sum of money. 
 Here, as in the case of fire insurance, the act or omission bring- 
 ing about the contingency contemplated, is not limited to any one 
 person or persons, but may be the conduct of any one, except the 
 willful destruction of the property by the insured, which would 
 bring into operation other principles of law. In this class of 
 cases dependent upon express contract, the nature, extent and 
 terms of liability depend upon the agreement itself, construed by 
 the applicable rules of law. 
 
 Non-Assignability of Duty. 
 
 The law recognizes the assignment of rights, in many instances, 
 and the delegation of power. It also recognizes the substitution 
 of another to discharge duty, in many instances, though not in 
 all; but such substitution is not of itself a discharge of the duty 
 or a release of the original obligor. The obligation or duty still
 
 172 AMERICAN ELEMENTARY LAW. 
 
 remains upon him who primarily owed it. If the substitute shall 
 discharge the obligation according to its terms, it is, of course, 
 thereby extinguished. If he does not, the original obligor is 
 bound to the obligee, and can not avail himself of the fact that 
 he employed another to discharge the duty for him. To state 
 it differently the law permits the delegation of the discharge of 
 duty but does not permit the assignment or transfer of the duty 
 itself without the consent of him in whose favor the obligation 
 exists. 
 
 To illustrate : If one person owes another and gives to a third 
 person the money with which to pay the debt, and this third per- 
 son does pay the debt, the obligation is as fully discharged as if 
 payment had been made by the debtor directly; but, if the third 
 person entrusted with the money shall abscond, the debt remains 
 undischarged, and it is no defense against the creditor's claim 
 that the debtor had provided the means and employed another 
 to make the payment. This illustration, while simple, sets forth 
 a principle far-reaching in the law, which is applied under many 
 and widely different conditions and circumstances. Indeed, the 
 doctrine seems to be of universal application that the discharge 
 of duty can not be given over or assigned to another with the 
 effect of relieving the original obligor from liability, except by 
 the consent of the person to whom the duty is due. By a tripar- 
 tite agreement between the obligor, the substitute and the obligee, 
 the former may be discharged and the substitute become solely 
 responsible. But this grows out of the assent of the obligee. 
 
 Another familiar illustration of this doctrine is found in its 
 application against railroad companies, based on their duty to 
 protect passengers. If a conductor in charge of a train should 
 commit an assault upon a passenger, the passenger would have 
 a dual basis of liability on the part of the company. First, the 
 doctrine of substitution ; that the company had selected a conduc- 
 tor, put him in its place to control and operate its train, and that 
 his unlawful conduct within the scope of his employment was, 
 therefore, the conduct of the company, his constituent, for which 
 it is responsible. The second would be the non-assignability of 
 the duty of protection. "When a carrier receives a passenger for 
 the purpose of transportation, it owes to him the duty of reason- 
 able care for his protection en route, and if it fails to discharge
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 173 
 
 this duty of using reasorable care for this purpose and injury 
 results to the passenger, it is responsible for the nondischarge of 
 the duty. If, however, the assault is not committed by the con- 
 ductor, but by a fellow passenger, the doctrine of substitution 
 does not apply ; and, if recovery can be had at all, it must be based 
 upon the fact that the company has failed to use reasonable care 
 to protect the injured passenger from the unlawful acts of the 
 stranger. 
 
 Public Policy. 
 
 In rare instances a legislature from considerations of public 
 policy will enact a statute to the effect that one person shall be 
 liable for the conduct of some other person. Some of these stat- 
 utes have been upheld as not violative of the provisions of the 
 State and Federal constitutions, regarding due process of law 
 and equal protection and have been upheld. These instances are 
 so rare that they do not require detailed treatment or discussion 
 in a treatise of this kind. 
 
 Analogous Relations Sometimes Supposed to Lead to Liability. 
 
 Liability is often charged to a person because of his ownership 
 of some particular thing or things. Sometimes the circumstances 
 are such that, on casual consideration, it seems that the owner 
 is responsible to other persons for the conduct of third parties 
 with reference to things owned by him. It is possible that this 
 is really true in a few instances, but in almost all, if not all, cases 
 of such liability, in its last analysis, it may be traced either to the 
 affirmative conduct of the owner himself, or to the fact that he 
 has failed to discharge some non-assignable duty resting on him 
 as owner. Instances are very rare, if indeed, any in fact exist, 
 in which one is responsible for the condition of his property 
 which does not result from his own affirmative act, or his failure 
 to use due care for the rights of others; and, whenever either of 
 these conditions exist, the liability is really due to his own con- 
 duct, or it is based on the conduct of some one substituted for 
 him in the exercise of his right of control or use of the property.
 
 174 AMERICAN ELEMENTARY LAW. 
 
 TO WHAT CONSEQUENCES OF CONDUCT DOES LEGAL LIABILITY 
 
 EXTEND ? 
 
 When we consider that, from the beginning of the world up to 
 the present time, there have been infinite lines of unbroken causa- 
 tion, that everything that is now results from that which has been, 
 and that nothing could be as it now is except for that which has 
 preceded and led up to it, and consider that this applies as well 
 to the injurious consequences of conduct as to any other thing 
 in life, we see the absolute necessity of some rule by which to 
 determine how far back of an injury the law will go in fixing legal 
 liability. A person is unlawfully injured by the explosion of 
 dynamite. "Who shall pay ? The man who directly occasioned the 
 explosion, the man who sold him the dynamite, the man who made 
 the dynamite, the man who invented dynamite, or the man who 
 invented or discovered the constituent elements which go to make 
 up the explosive ? Some rational and fairly just answer must be 
 given to questions of this sort, or litigation would be interminable, 
 and the liabilities of life too great to be borne. Something has 
 been thought and a great deal has been written on this subject, 
 and many tests have been submitted, and have proved more or less 
 efficient and just in their application. Numerous incidental 
 matters have been dragged into the discussion at different times 
 and by different persons, such as the effect on legal responsibility 
 of the intervention of an independent agent or agents between the 
 wrongful act of the party sought to be charged and the conse- 
 quential damages for which recovery is desired. And the end 
 is not yet. 
 
 The simplest, most just and satisfactory test and, as it seems, 
 the true one, is found by applying to the facts the law's original 
 standard of measurement, the average man. The rule thus 
 obtained is that the law holds each person responsible for such 
 consequences of his conduct as were either intended by him as re- 
 sults, or as a reasonably prudent person situated as he was would 
 reasonably have anticipated as the natural and probable conse- 
 quences of the act or omission. This test is simple in itself and 
 fairly easy of application. If it be adopted, it eliminates much 
 of the confusion arising in the application of some of the others by 
 reason of the intervention of independent agencies. The rule on 
 that subject would be reduced to this : If the intervention of the
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 175 
 
 independent agent should have been reasonably anticipated, such 
 intervention and its co-operative effects are among the conse- 
 quences of the original act which a reasonably prudent man would 
 have foreseen and which, therefore, every man is justly held to 
 have foreseen and contemplated ; if, on the other hand, the cir- 
 cumstances are such that such independent intervention would 
 not reasonably have been anticipated, it breaks the causal con- 
 nection, and no liability attaches to the original wrong-doer. 
 
 This doctrine is as applicable in cases within secondary range 
 of right and liability as those within the primary. If a person 
 is to be held responsible at all for the conduct of another, the 
 consequences of the conduct for which he is held are determined 
 by the same rules as in cases of wrong by him personally. 
 
 We are not now discussing the vexed question of remuneration 
 or contribution among wrong-doers, but the simple proposition 
 as to what consequences of wrong legally attributable to him each 
 wrong-doer is held responsible for. 
 
 This subject is usually treated as the doctrine of remote and 
 proximate cause, and most of the learning and much of the con 
 fusion in the books pertaining to it can be found under those 
 catch-words.
 
 CHAPTER V. 
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER (CONTD.) 
 STATUS AS AFFECTING LEGAL RESPONSIBILITY. 
 
 The ordinary rules of law are made by normal persons for the 
 government of normal persons, and there is no occasion to discuss 
 status as applicable to them further than to say that all persons 
 are primarily presumed to be normal, and if any individual is 
 generally, or as to any particular thing under investigation, ab- 
 normal, these facts must be made to appear in his behalf, or he 
 will be judged and his rights and liabilities tested by the ordinary 
 rules. If, however, his condition be generally abnormal, or if he 
 be abnormal as to the particular matter under investigation, and 
 this is made to appear, then, in determining his legal rights and 
 liabilities, he will be judged by such of the general rules as are 
 not affected by his particular incapacity, supplemented by the 
 special rules applicable to his particular abnormal condition. 
 
 The principal abnormal conditions are mental unsoundness, 
 drunkenness, duress, infancy and coverture. Some of theie are 
 incapacities both in law and in fact; some of them are incapaci- 
 ties in law, wthout any corresponding incapacity in fact. 
 
 Mental Unsoundness. 
 
 This, in its different effects upon conduct, and consequently 
 upon the responsibility of the party, has been considered at some 
 length under the preceding head of what constitutes conduct, 
 and need not be again dealt with here. 
 
 Drunkenness. 
 
 The use of intoxicants, not so extensive as to affect the intellect 
 and judgment to the point that the person does not understand 
 the nature and consequences of his conduct, is not an incapacity. 
 If, however, the mind has been so far affected as temporarily to 
 deprive one of the capacity to understand and appreciate the 
 nature of his conduct and its natural and probable consequences,
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 177 
 
 he is, for the time being, of unsound mind, and is not legally 
 responsible for any act, or its consequences, which involves formed 
 design and purpose or evil motive. This statement must be 
 modified to this extent: if the evil design and motive exist in the 
 mind of the party and he, desiring and purposing to carry them 
 out, shall voluntarily intoxicate himself and while in this condi- 
 tion execute the design formed while sober, he will be respon- 
 sible as though he had not been intoxicated. 
 
 If the intoxication is so severe and protracted as to bring about 
 a fixed state of mental unsoundness, as is usually the case in 
 delirium tremens, the law then deals with the condition as a 
 disease, and the responsibility of the party is measured by the 
 same rules as any other person suffering from insanity. 
 
 Duress. 
 
 Duress is coercive undue influence brought to bear on the will, 
 without reaching the intellect by means of force or threats. 
 That is to say, it is threatened injury to the person or property of 
 the party, or those under his protection, of such nature as prac- 
 tically to deprive him of free choice in the matter. Its effect is 
 different in different departments of the law. In Criminal Law, 
 where evil intent and motive is usually the gist of the charge, 
 duress is almost always a defense. In Tort Law, where acts and 
 their consequences are the principal consideration, it is not a 
 defense, except in those few instances in which evil motive is an 
 element of the tort, or when exercised by the husband over the 
 wife. In Contract Law, as the basis of liability is the free assent 
 of the party bound, duress, operating upon the mind of one of the 
 parties to the agreement, destroys the legal element of assent, 
 and the supposed agreement or contract extorted from him is 
 voidable at his instance. If, however, contract obligation has 
 been voluntarily assumed, duress producing breach is not an 
 excuse for the breach. The party is still bound by the contract, 
 and it may be enforced against him. 
 
 Infancy. 
 
 In Common Law countries a person is deemed to be an infant 
 or minor until he attains twenty-one years of age. Persons 
 under that age differ very greatly in point of fact both in intel- 
 12
 
 178 AMERICAN ELEMENTARY LAW. 
 
 lectual and will power. It is also apparent that no sudden great 
 change takes place in the capacity and power of a person upon 
 attaining this age. Many persons under the age of twenty-one 
 are better developed and more discreet than many others above 
 that age. Still some line of separation between the minor and 
 the adult must necessarily be drawn and the Common Law places 
 it at twenty-one years, and declares all persons under that age 
 to be infants and minors and all over that age to be adults. 
 
 Every adult is presumed by law in absence of proof to the 
 contrary to be capable of caring for himself and to be legally 
 responsible for all his conduct. Frequently this is not true in 
 fact. In such cases the nature and extent of the actual incapac- 
 ity must be plead and proven to entitle the party whose conduct 
 is under investigation to the benefit of it or to subject him to its 
 disabilities as the case may be. 
 
 The legal effects of minority cannot be stated so readily and 
 positively. These differ according to the point of view and to 
 approximate accuracy we must consider the matter separately 
 with reference to the criminal, tort, and contract law. 
 
 At Common Law children below seven years of age are con- 
 clusively presumed to be incapable of committing crime and no 
 proof will be received to show that some particular child under 
 that age did in fact have sufficient intelligence to entertain crim- 
 inal intent. Between the ages of seven and fourteen an infant 
 is presumed to be incapable of criminal intent but this presump- 
 tion may be overcome by proof showing that he had discretion 
 sufficient to understand the nature and illegality of the act con- 
 stituting the offense. An infant above the age of fourteen is 
 prima facie as responsible for crime as an adult. 
 
 The general rule of law is that an infant is responsible for 
 torts committed by him to the same extent as an adult. Duty 
 in the law of torts is imposed by law and does not depend upon 
 the capacity of the party doing the wrong to voluntarily assume 
 obligation and as the legal duty exists its violation necessarily 
 leads to liability for the actual damage inflicted. 
 
 There are a few torts in which evil intent is an essential ele- 
 ment and an infant, so young as to be incapable of such intent, 
 cannot commit such a tort. Where a tort is committed with 
 evil intent the wrong-doer is responsible for exemplary damage
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 179 
 
 beyond the amount necessary to compensate the injured party. 
 A child incapable of entertaining such evil intent cannot be held 
 liable for exemplary damage. 
 
 In Contract Law, infancy is prima facie good ground for avoid- 
 ing the contract by the infant, though the adult party to the 
 agreement is bound. An infant is, however, bound by contract 
 for necessaries for himself, at least to the extent that he must pay 
 for them, though the price agreed upon will not be enforced if 
 it be shown that it is unreasonable or unfair. An infant may 
 repudiate or avoid his contracts for personal property, either 
 during his minority or within a reasonable time thereafter. He 
 can not repudiate his contracts with reference to real estate dur- 
 ing his minority, but may within a reasonable time after he at- 
 tains his majority. Failure to disaffirm the contract in a reason- 
 able time after attaining majority or the claim or exercise of 
 rights under the contract after majority in such way as to indi- 
 cate affirmative acquiescence in the contract, or in such way as 
 to prejudice appreciably the right of the other party, destroys 
 the right of rescission. If the infant or quondam infant still has 
 under his control anything acquired by the contract, or had this 
 under his control when he attained his majority, he can not re- 
 pudiate the contract without making restitution of the property 
 or value which he has or had at his majority. If, during his 
 minority, he consumed, squandered or lost the property or money 
 and did not, when he attained his majority, have anything re- 
 ceived by him under the contract, he is excused from restitution. 
 
 Coverture. 
 
 Among the effects of marriage upon the woman at Common 
 Law was incapacity to bind herself by contract. Having lost all 
 control over her property, and being without capacity to acquire 
 more, by her own effort, the fact of her nonliability was of no 
 material loss to parties with whom she dealt. She was, however, 
 regarded as the agent, by necessity, of her husband to bind him 
 for the reasonable value of necessaries for herself and children, 
 and this agency could not be repudiated by the husband except 
 upon proof that he had, in good faith, provided for her so that 
 the necessity from which the agency was said to arise did not, in 
 fact, exist. The extent to which she could thus bind him and his
 
 180 AMERICAN ELEMENTARY LAW. 
 
 property as an agent by necessity, varied with their station and 
 condition in life. The limits were narrow, and usually strictly 
 adhered to. Under the ordinary domestic relations, her author- 
 ity to bind her husband by an implied agency was much greater. 
 Her authority thus to bind him was implied from the marital 
 relation, unless something was done by the husband to show a 
 different intent on his part. Notice that he would not be bound, 
 or a course of dealing which put others upon reasonable notice 
 of the fact that he would not recognize the wife as his agent be- 
 yond the limits of agency by necessity as fixed by law, would re- 
 lieve him from liability for her ordinary undertakings in his be- 
 half. These matters are somewhat apart from the subject di- 
 rectly under consideration. Returning to that, we find that at 
 Common Law the married woman was incapaciated to bind her- 
 self by contract, or to convey property. The effect of coverture 
 upon the contractual power of the woman in most, if not all, the 
 States of the Union, is now largely a matter of statute. These 
 statutes, except in Louisiana, are looked upon as amendatory of 
 the Common Law and are construed with that as a background, 
 so that we may say that, in all of the States except Louisiana, 
 the capacity of a married woman to contract is regulated by the 
 Common Law, as modified by the applicable constitutional and 
 statutory enactments of the particular State. 
 
 Coverture does not affect the woman 's liability for tort, except 
 in the one ease of duress by the husband. As to this it is said 
 that, if it be clearly shown that the woman was coerced by her 
 husband into the commission of the wrong, he, and not she, is 
 liable therefor. If the tort by the married woman is not con- 
 curred in by the husband, still both she and he are liable; but, 
 if he is compelled to pay, he may have compensation from her 
 separate estate, if any she has. If the tort is committed by them 
 jointly, or if committed by the wife with the acquiescence or ap- 
 proval of the husband, both are responsible to the third party, 
 and contribution or restitution between them must be determined 
 by the general rules of law without reference to the fact of 
 coverture. 
 
 Coverture has no effect upon liability for crime. In a few 
 instances, coercion by the husband, although not amounting to 
 duress such as would relieve from liability, is taken into account, 
 and punishment of the woman mitigated.
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 181 
 
 Coverture does not incapacitate a woman to act as the servant, 
 or agent, of another, and as such she may exercise powers and 
 make contracts for and in behalf of her principal just as though 
 she were unmarried. The theory is that the servant, or agent, is 
 but a substitute for the master, or principal, and that the legal 
 capacity of the constituent is acting through the representative, 
 so that the lack of capacity in the latter is immaterial. 
 
 RELATIONS TO SOVEREIGNTY. 
 
 Governmental Agencies. 
 
 We have found that there are two classes of persons, natural 
 and artificial. Sovereignty deals with and through persons of 
 each class. Its direct representatives are different legal entities, 
 created by it to act as its agents in the exercise of its govern- 
 mental functions. Many of these various agencies are recog- 
 nized in law as having legal existence distinct from that of their 
 constituent members. In their several capacities as separate en- 
 tities they have various dealings in the business world and per- 
 form many acts to which, if performed by ordinary individuals, 
 legal liability would attach. These legal agencies, existing only 
 in theory or contemplation of law, as public corporations, can 
 act only through natural persons, and these natural persons, for 
 the time being, representing the governmental agencies, we know 
 as different classes of officers. So that we see that the corporate 
 governmental agency is the direct representative of sovereignty 
 and the natural persons exercising the powers and discharging 
 the duties of these governmental agencies are its indirect repre- 
 sentatives. Many questions have arisen as to how far govern- 
 mental agencies and public officers should be responsible for their 
 conduct and its results. Questions of public policy, of necessity, 
 come in for consideration, as well as matters of private right. 
 The adjustments and resulting rules have been fairly though not 
 absolutely uniform and the results may be stated with reason- 
 able, though not perfect, accuracy. 
 
 Direct Representatives of Sovereignty. 
 
 The most extensive direct sovereign agent in the United States 
 is the Federal Government, standing for the people of the United 
 States, created by their will and carrying out their purposes. 
 Legal responsibility is enforced through the courts, and these
 
 182 AMERICAN ELEMENTARY LAW. 
 
 courts are but departments of the government created by the 
 sovereign ; and the question has often arisen : Shall the creator 
 be called to account before tribunals of its own formation and be 
 judged by its own creature ? Closely related questions are : Shall 
 the people of the United States, in their governmental capacity, 
 be subject to suit in a State court ? and shall the States severally 
 be subject to suit in the United States courts or the courts of 
 other States ? The universal answer is that the Federal Govern- 
 ment is not subject to suit in either State or Federal courts, ex- 
 cept upon its express consent given. It has been quite liberal 
 in this regard, and has authorized suits against itself in a great 
 many instances, and has even gone so far as to organize and main- 
 tain several courts for this express purpose, which have no juris- 
 diction over any other matters ; so that, in effect, this Government 
 has given its consent to be sued in its own courts in almost all 
 classes of cases that can arise against it. If, however, any claim 
 should come up not provided for in these several permissive stat- 
 utes, suit could not be brought upon it. The Federal Govern- 
 ment has never given its consent to suits against itself in a State 
 court, and can not be sued in them. 
 
 The several State governments are the direct representatives of 
 sovereignty in the several States ; and, as such, are immune from 
 suits either in their own courts, the courts of other States, or the 
 Federal courts, unless they shall have antecedently authorized 
 or consented to such proceeding. There are general provisions 
 in the Constitution of the United States, acceded to by all the 
 States, by virtue of winch any of the States may be sued in the 
 Supreme Court of the United States either by another State or 
 by the Federal Government. No other Federal court can enter- 
 tain a suit against' a State at all, and the Supreme Court can not, 
 except within the particular instances specified in the Federal 
 Constitution. There are no general laws of the several States 
 subjecting their respective State governments to suit in their 
 ewn courts, so that they may not be sued or held legally within 
 their owe tribunals, unless, by special statutory enactment, they 
 have given authority for the proceeding. No State has ever 
 given its consent to be sued in the courts of another State, and 
 no such jurisdiction exists.
 
 MUNICIPAL LAW AND ITS SUBJECT MATTES. 183 
 
 Political Subdivisions — Counties. 
 
 Each State in the Union, for its general convenience in the 
 administration of its internal affairs, is subdivided into small 
 districts, usually called counties, sometimes parishes or shires. 
 These divisions have certain political autonomy, and through 
 their political agencies transact business and exercise such of the 
 functions of sovereignty as are committed to them. They are 
 not recognized as being so directly representative of sovereignty 
 as the State government ; still, they share in immunity from legal 
 responsibility and suit, to a very great extent. They are never 
 responsible for injuries occasioned in the direct exercise of 
 their political or governmental authority. They are never re- 
 sponsible for torts of any kind, unless there be some constitutional 
 or statutory provision upon which such liability can be based. 
 When they are given authority to contract, this is construed as 
 permission to the other contracting party to sue, in the event the 
 contract is broken by the county. In many States it is required, 
 as a condition precedent to a suit against a county for money, 
 that the claim shall be presented and demand made to the county 
 officers charged with the administration of its financial affairs. 
 
 Incorporated Cities and Towns. 
 
 The next political subdivisions recognized by law as capable of 
 sustaining legal relations are cities and towns incorporated either 
 under general or special laws. These are regarded as still further 
 removed from the general sovereignty of the State and as 
 more particularly representing local interests, and there is 
 a consequent diminution of immunity from suit. These corpora- 
 tions also have their dual life, the one phase consisting of the 
 exercise of political or governmental authority and the other 
 of the conduct of their local business affairs. So far as the first 
 powers are concerned, we may say, generally, that no liability 
 at all exists; that is, that a city or town is never held legally re- 
 sponsible for injuries resulting directly from the exercise of a 
 general governmental power. On the other hand, they are held 
 responsible for all injuries directly resulting from the exercise 
 of their powers as local business agents, or as representatives of 
 the local business interests of their respective communities. 
 These rules are easy of statement, but exceedingly difficult of ap-
 
 184 AMERICAN ELEMENTARY LAW. 
 
 plication. Just where the line of separation 'between the general 
 governmental power and the local business function is to be 
 drawn is not yet fully determined. For illustration : The main- 
 tenance of a public road by the county is regarded universally 
 as the exercise of a general governmental power, and for injuries 
 resulting in such maintenance, or in negligent failure to main- 
 tain, no liability on the part of the county exists. But when a 
 city is incorporated and takes charge of its streets and highways, 
 while these continue to be public thoroughfares, they are held 
 to be maintained more particularly for the benefit and conven- 
 ience of the inhabitants of the city than of the people of the 
 State as a whole; and so, for injuries resulting from their neg- 
 ligent maintenance, the city is held responsible. Again, with 
 reference to public utilities, such as water, light and gas works 
 and sewers, the city is ordinarily held responsible for tortious 
 conduct of its agents or representatives resulting in injury to 
 others. This rule applies to Common Law torts. Where conduct 
 which is not tortious at Common Law is declared to be tortious by 
 statute, and designated persons alone are declared to be respons- 
 ible for such torts, cities are not usually held as included under 
 the general designation of persons, but if the legislature desires to 
 fix liability upon them it must be more specific and use apt terms 
 specially referring to them. 
 
 It is not ordinarily necessary to present a claim to the city 
 council or other financial board or representative before suit is 
 brought upon it. If it be one upon which the city is liable, no 
 demand need be made; if the city is not liable, demand would, 
 of course, be useless. 
 
 Other Less Organized Subdivisions. 
 
 In each State there are subdivisions of the counties into pre- 
 cincts or townships; sometimes into school districts; and again, 
 a county or number of counties may be constituted into a political 
 district, for convenience in the election of officers and in the 
 administration of the law. The exact powers and responsibilities 
 of these several divisions depend upon the statutes creating them. 
 Ordinarily, their organization is very limited and of a very loose 
 nature, and they have no financial responsibility, and but few 
 questions have ever arisen as to their liability as legal entities.
 
 MUNICIPAL LAW AND ITS SUBJECT MATTES. 185 
 
 The general statement may be made that their lack of organiza- 
 tion, and of assets or means of raising money, are practical dif- 
 ficulties in the way of enforcing liability, that are insurmountable, 
 even if a theoretical liability were recognized as existing. It is 
 exceedingly doubtful whether any such liability could be sus- 
 tained theoretically. As stated above, the extent of their powers, 
 rights and liabilities is dependent, in each instance, upon the 
 creating act, and extends as far and no farther than such act, 
 properly construed and interpreted, may go. 
 
 Indirect Representatives of Sovereignty — Officers. 
 
 The liability of officers for acts done under guise of official 
 authority has given rise to a great deal of discussion, in which 
 widely different positions have been taken and which has resulted 
 in adjudications not easily reconciled. It may be stated, however, 
 as a universal rule, that no personal liability ever attaches to an 
 officer from the discharge of his official duty in a lawful way. 
 Whatever the consequences to others may be, so far as the officer 
 is concerned, they must be borne without reimbursement or com- 
 pensation; but when the officer, under the guise of official au- 
 thority, does that which the law does not really warrant him in 
 doing, shall he then be responsible personally and make good to 
 the injured party the damage sustained ? No answer of universal 
 application can be made. In some instances, the officer is held 
 responsible; in others, he is not. The most usual statement of 
 the line of demarcation between liability and nonliability is that 
 the ministerial officer is responsible for mistakes or intentional 
 wrongs done under the guise of his office, but the judicial officer, 
 or the officer whose duties require the exercise of discretion, is 
 not. Properly understood, this doctrine is correct, but the lan- 
 guage, as usually employed, is somewhat misleading. There are 
 few, if any, offices all of the duties of which are ministerial, and 
 there are few, if any, all of the duties of which are judicial, or 
 involve official discretion. So that to make liability depend upon 
 the nature of the office can not be accurate. The better doctrine 
 is that the officer is liable when the duty is ministerial, and not 
 liable when the duty involves official discretion, and to apply this 
 rule to each official act, or claimed official act, under investigation. 
 This necessarily involves the determination of what is a minis-
 
 186 AMERICAN ELEMENTARY LAW. 
 
 terial act or duty, and what is one involving official discretion. 
 The answer is by no means easy. No act, private or official, 
 which involves intelligence or reason can be said not to involve 
 the exercise of judgment, and in this sense every act involves 
 discretion; and, if ministerial be the opposite of discretionary, 
 in this sense, there would be no ministerial action. This would, 
 of course, be to destroy our basis of separation. The true point 
 of view seems to be that, if the act involves official discretion, its 
 performance or omission does not lead to liability, but that the 
 fact that the act involves individual or personal discretion does 
 not prevent its being ministerial and does not relieve from lia- 
 bility for mistakes or wrong committed under guise of office. 
 Official discretion, in this connection, would mean a discretion 
 exercised by the officer as a representative of the government. 
 That is to say, the scope of his agency or delegated power in- 
 cludes the right of exercising judgment as to the particular matter 
 before him, not alone for his guidance, but also with authority 
 to bind others by such exercise of judgment. To state it differ- 
 ently, the fact that an officer must get information, investigate 
 facts and weigh them and exercise judgment as to what he shall 
 do in his office, does not of itself, make his action involve official 
 discretion. All these duties may rest upon him and his act, when 
 performed, still be ministerial. But if his official duty requires 
 the investigation and determination of these facts, in order to 
 enable him to act intelligently in the discharge of his office, and 
 further authorizes him to bind other parties as to their legal 
 relations, rights and duties by the conclusion arrived at by him, 
 then the act involves official discretion, and is not ministerial. 
 Intended or negligent wrong in the discharge of ministerial duty 
 always leads to liability. Very frequently a wrong determination 
 of fact, made in good faith by a ministerial officer, and acted upon 
 to the injury of another, leads to liability. Mistake in the exer- 
 cise of official discretion rarely leads to personal liability. In a 
 few rare cases, where the mistake is of such nature that it could 
 not reasonably be believed that a person fairly qualified to dis- 
 charge the duties of the office would have made the mistake, lia- 
 bility will attach. 
 
 If the foregoing views be correct, it is immaterial to what de- 
 partment of government the officer belongs, or by what name he
 
 MUNICIPAL LAW AND ITS SUBJECT MATTER. 187 
 
 may be called. Still, the rule as to liability would apply much 
 more frequently to officers in the executive department of the 
 government than to those in either the legislative or judicial de- 
 partments. This is true because of the nature of the discretion 
 involved in the discharge of the duties of the several depart- 
 ments — almost all legislative and judicial action involving official 
 discretion, as defined above, and the large percentage of executive 
 action not so doing.
 
 CHAPTER VI. 
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 
 Definition. 
 
 A legal right is a power, claim, interest, or advantage which 
 one or more persons enjoy under the protection of law, secured to 
 him or them by the sovereign, by giving him or them the capacity 
 to control by law the conduct of others with reference thereto. 
 
 Every legal right has its correlative legal duty which is in- 
 separable from it. The consideration of the one necessarily in- 
 volves consideration of the other. 
 
 It may well be said that the sole end of private law is to 
 determine, define, and protect legal rights. No claim or ad- 
 vantage or privilege is protected by law until its justice, pro- 
 priety, and value have first been recognized by law. No one can 
 be legally called to account and punished for conduct unless such 
 conduct invades the legal right of another. To know fully the 
 law of legal rights in all its aspects is to know fully the law of 
 the land. It is exceedingly important, therefore, to get a clear 
 and thorough understanding of rights and duties and to hold this 
 information in the mind in a readily available form. 
 
 CLASSIFICATION OF LEGAL RIGHTS. 
 
 Legal rights are of different kinds and a great many different 
 classifications of them have been made by different writers and 
 at different times. Many of these are fairly accurate and com- 
 prehensive but none are entirely satisfactory as a basis for a 
 simple and comprehensive treatment of the subject. 
 
 So many classifications have been made that one more will 
 not perceptibly increase the confusion, and the following is sug- 
 gested : 
 
 1. Personal Rights, 
 
 2. Civil Rights, 
 
 3. Political Rights, 
 
 4. Rights against Particular Persons,
 
 LEGAL EIGHTS AND THEIR CLASSIFICATION. 189 
 
 5. Rights in Things, 
 
 6. Rights in Persons, 
 
 7. Remedial Rights. 
 
 Under Personal Rights, we will treat all those rights which 
 pertain to a man's personality considering him as a human social 
 being. 
 
 Under Civil Rights, we will treat those rights which are 
 guaranteed under the XIV and XV Amendments to the Con- 
 stitution of the United States. 
 
 Under Political Rights, we will treat all those rights which 
 pertain to a man as a member or subject of some particular gov- 
 ernment. 
 
 Under Rights against Particular Persons, we will treat all 
 those rights which are correlative to duties which are owed by 
 particular individuals. 
 
 Under Rights in Things, we will treat all those rights which a 
 person may have in things, usually known as property rights. 
 
 Under Rights in Persons, we will treat all of those rights which 
 one may have in the capacities and personality of another. 
 
 Under Remedial Rights, we will treat of all those rights which 
 arise upon the violation of any right of any of the preceding 
 rights. 
 
 PERSONAL RIGHTS. 
 
 These rights include all those which pertain to man as an in- 
 dividual, considered as a human being simply, and as a member 
 of society generally. 
 
 Under these are included: 
 
 1. Personal security, covering body, mind, and morals to the 
 extent that the law affords protection to each. 
 
 2. Freedom of action, covering also the three departments of 
 man's being, to the extent that the law affords protection in the 
 use of each. 
 
 Bodily Security. 
 
 The most obvious right which a person has is to retain his body 
 uninjured by wrongful conduct of others. This is the first right 
 felt and appreciated by men, and is one to which the law gives 
 very great attention. This protection is afforded in two ways:
 
 190 AMERICAN ELEMENTARY LAW. 
 
 (1) By recognizing the interest of the public in the safety and 
 well-being of each individual and making injury to his body, with 
 few exceptions, a crime; and (2) by recognizing the right as a 
 private one in the individual, and giving redress for its violation 
 by a civil action. While the general purpose of the law is the 
 same in each instance, the point of view is different, so that some- 
 times injury to the body will be criminal when the person injured 
 can not have a remedy ; sometimes it will be actionable in behalf 
 of the individual, though not criminal ; and more frequently still, 
 the same facts will lead to liability both to the public and to the 
 individual. In short, the law undertakes to protect the body of 
 the individual, as far as it can be done practically, against all 
 wrongful injury, by whomsoever or by whatever means the injury 
 may be attempted. The difference in means and methods of 
 committing these wrongs leads to different manners of dealing 
 with the wrong-doer, and to different names for the offense and 
 different penalties or compensations for the wrong; yet the law 
 includes them all in its denunciation, and treats each in such way 
 as to be most conducive to the good of the individual concerned, 
 and of the general public. 
 
 The recognition of a person's right in his body, and giving him 
 a cause of action for injuries inflicted upon it wrongfully, have 
 been part of the Common Law from time immemorial. The right 
 is necessarily personal, and the injury to it of the same nature. 
 The Common Law, stressing this idea of the personal nature of 
 the right and the injury, did not recognize a claim for damages 
 for its violation, as either assignable or heritable. Such claim 
 died with the death of the injured party. The wrong conduct 
 resulting in the injury was also regarded as strictly personal, 
 and the claim for damages against the wrong-doer did not survive 
 his death. So at Common Law, the death of the injured party, 
 or of the wrong-doer, before the claim for damage had been 
 reduced to judgment, destroyed the claim; if suit had already 
 been brought, but had not proceeded to judgment before such 
 death, it abated. If no suit had been brought before such death, 
 none could be thereafter instituted. These Common Law rules 
 have been changed, to some extent, in most of the States, if not 
 all ; the extent and nature of the changes varying with the judg- 
 ment of the several legislatures.
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 191 
 
 Homicide, while severely punished criminally, was not a tort 
 at Common Law. Clearly the injured party could maintain no 
 suit, and the law did not recognize any cause of action as sur- 
 viving in his estate, as such, or in any of the members of his 
 family. In 1846, the British Parliament passed a statute, known 
 as Lord Campbell's Act, giving a right to designated relatives of 
 the deceased to sue the wrong-doer and recover damages when 
 homicide had been committed under specified circumstances. 
 Since that time, almost all the American States have passed 
 statutes to the same effect. These statutory rights pertain to 
 the designated surviving members of the family of the deceased, 
 and will be dealt with under the fifth classification of rights. 
 
 Use of Force. 
 
 We may summarize the rules of law for the protection of the 
 body as follows : 
 
 The general rule is that the use of any force by one person 
 upon the body of another is unlawful. To this, there are five 
 exceptions : 
 
 (1) "When the force is applied in obedience to the command 
 of the law, as an officer in arresting a person charged with crime 
 for whom he has a warrant, or to prevent a public disturbance 
 or breach of the peace. 
 
 (2) "When applied in proper self-defense. 
 
 (3) "When the act is committed reasonably in the proper con- 
 trol of one subject to some special relation, as the moderate cor- 
 rection of the child by the parent, or of the pupil by the teacher. 
 
 (4) "When occurring under the license of the law for reasons 
 of public policy, as in the ordinary contacts of life. 
 
 (5) "When it is a result of inevitable accident. 
 
 Security to the Mind. 
 
 Hurt to the mind is of two general kinds, the first involving 
 mental impairment which may consist of the destruction or weak- 
 ening of the mental faculties, and the second involving only men- 
 tal pain or suffering without impairment of faculties. 
 
 These injuries may be occasioned in an almost infinite variety 
 of ways. For legal purposes they may be divided into hurts 
 resulting from or accompanied by physical injury on the one 
 hand, and hurts unaccompanied by physical injury on the other.
 
 192 AMERICAN ELEMENTARY LAW. 
 
 We may therefore divide mental injuries into four groups: 
 
 (1) Those involving impairment of the faculties resulting from 
 or accompanied by physical hurt. 
 
 (2) Those involving mental pain and suffering merely, not 
 extending to impairment of faculties, and resulting from or ac- 
 companied by physical hurt. 
 
 (3) Those involving impairment of the faculties not resulting 
 from nor accompanied by physical hurt. 
 
 (4) Those involving mental pain and suffering merely, not 
 extending to impairment of faculties and not resulting from nor 
 accompanied by physical hurt. 
 
 The law on the subject of mental security is not definitely set- 
 tled. The law took cognizance of and undertook to protect the 
 body before it did the mind. In the earlier cases involving mental 
 injury the question arose in connection with bodily hurt, usually 
 being presented as to whether or not damage for mental hurt 
 could be recovered in connection with damage for hurt to the 
 body. It was only in later years that protection of the mind 
 against hurts not resulting from bodily injury arose. 
 
 The present rules may be fairly stated as follows: 
 
 (1) The law does recognize a person's right in and to his mind 
 and undertakes to protect him against mental injury as far as 
 this can be done practically. 
 
 (2) The law uniformly gives redress for wrongs which injure 
 the body and also injure the mind, either by impairment of the 
 faculties or simply by occasioning mental pain and suffering 
 though not extending to impairment of faculties. 
 
 (3) It also gives redress for impairment of faculties where 
 this can be satisfactorily shown although there be no accompany- 
 ing physical hurt. 
 
 (4) There is much uncertainty as to the rules governing cases 
 involving mental pain and suffering unaccompanied by physical 
 hurt. Much authority can be found on both sides of the question. 
 The cases allowing damage for mental suffering under these cir- 
 cumstances contend that the law in allowing damage for such 
 suffering when accompanied by bodily hurt, recognizes this as 
 a legal element of damage susceptible of being measured and 
 expressed in terms of money, and this being so, the party who 
 has sustained such damage by the wrong of another is justly en-
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 193 
 
 titled to redress. The cases denying such recovery contend that 
 though mental anguish when properly established, is a just ele- 
 ment of damage, proof of it is so difficult to make and the op- 
 portunities for simulation and fraud are so great, that to permit 
 recovery in cases where no bodily hurt can be shown would open 
 too wide the door for fraud and vexatious litigation. These 
 courts further urge that the difficulty in showing causal connec- 
 tion between the act complained of and the mental hurt is very 
 great where there is no physical injury. This difference of opin- 
 ion makes it quite difficult to state satisfactorily the rules of law 
 applicable to such cases. 
 
 The results may be approximately summarized as follows: 
 Compensation for mental suffering not produced by nor accom- 
 panied by physical injury, is not ordinarily allowed. Such com- 
 pensation is allowed in cases where the wrong producing it was 
 intentionally committed, and also in cases where, by reason of 
 some special relation between the parties, or other special facts, 
 the mental suffering should have been anticipated as the natural 
 and probable result of the wrong. 
 
 Security to Morals. 
 
 To afford protection to a man's moral nature is even more 
 difficult and impracticable than to his mind. The result is that 
 the law does not undertake to give damages or compensation to 
 a person because another has caused his morals to deteriorate. 
 The subject is too intangible and causal connection too hard to 
 trace, the doctrine of contributory negligence too generally ap- 
 plicable, and the just measurement of the injury in dollars and 
 cents too uncertain. So that no protection to the morals of the 
 individual, by giving him money for their impairment, is pro- 
 vided. This does not mean that the law does not recognize man 's 
 moral nature, nor undertake to afford some protection to it. 
 "When the practices or conduct complained of are continuous in 
 their nature and their consequences clearly demonstrable, and 
 the complainant is in no wise implicated in the wrong, it may 
 sometimes be prevented by dealing with it as a nuisance. Be- 
 sides, a number of criminal laws are designed to punish and 
 prevent immoral practices. 
 
 It is readily perceived that the law, as to the matters considered 
 iii this and the last preceding paragraph, is not settled, but is 
 13
 
 194 AMERICAN ELEMENTARY LAW. 
 
 still in the formative state. What the ultimate result may be, 
 no one can tell. In no branch of the law does the idea of im- 
 practicability of dealing efficiently with the proposed matter 
 afford more difficulty or emphasize more clearly the necessity of 
 separating municipal law from moral. The difficulties are not 
 easy to overcome, and will be solved only by repeated experiment 
 and honest effort 
 
 Freedom of Action. 
 
 This right, as it would exist in a person in a state of nature, 
 is necessarily modified by membership in any society or govern- 
 ment It is in this modified form that we deal with it here. It 
 is a very general and indispensable right. Its extent is to do 
 any and everything one may desire, except such things as may 
 be violative of the just rights of others. It covers the privilege 
 to go where one pleases, do anything he wishes, engage in any 
 business he sees fit ; in short, to conduct himself at all times and 
 at all places as he may desire, unless he shall thereby invade the 
 just rights of others. The law should abridge these rights and 
 interfere with their exercise only so far as the public good and 
 equality in rights of individuals may demand. These two con- 
 siderations, however, necessitate very material and continuous 
 limitations upon the freedom of action of the individual. The 
 recognition of every person 's right of bodily security is a limita- 
 tion on every other person's actions with regard thereto. A rec- 
 ognition of property rights necessarily excludes all persons except 
 the owner from equal use and enjoyment with the owner in the 
 thing owned. So, throughout the whole catalogue of private 
 rights, as each is secured to its possessor by capacity to control 
 by law the conduct of others, its enjoyment necessarily involves 
 a proportionate loss of self-determination by others. The just 
 and proper balancing and adjustment of these rights and limi- 
 tations is one of the most delicate and difficult duties of sover- 
 eignty. The result, when it shall have been successfully attained, 
 will be the perfection of civil liberty. 
 
 Any interference by one person with the freedom of action of 
 another is wrongful, unless authorized by law ; that is, the rules 
 governing the conduct of individuals in these respects, as in all 
 others, are made by the sovereign and not by private individuals, 
 and each person is equally permitted to carry out his own designs
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. VJo 
 
 and purposes uncontrolled and uninterfered with, except as the 
 law may prescribe. 
 
 This right of freedom from restraint, except as authorized by 
 law, is protected by both criminal and civil law, and invasions 
 of it, usually called false imprisonment, are punishable as crimes 
 and subject to civil liability to the injured party. 
 
 In addition to the criminal penalties and liability to damage 
 in civil suits, so jealous is the law that it has provided, in behalf 
 of the persons restrained of their liberty, a special remedy of 
 habeas corpus. This is a command issued by a court or judge, 
 upon the appication of the person detained, or of some one in his 
 behalf, or upon the motion of the judge himself, if he believe just 
 cause for so doing exists, commanding the person, whether officer 
 or private citizen, who has another in his possession and custody, 
 to produce or bring such person before said court or judge, or 
 some other court or judge having jurisdiction, at a time and place 
 named in the writ, then and there to show cause why such person 
 should not be set at liberty. This is an ancient and most highly 
 prized writ and is one of the most effective safeguards of our 
 liberty. By it any one who is unlawfully detained may invoke 
 the power of the government in his behalf and have his detention 
 and its legality inquired into and if it be unlawful secure his re- 
 lease. So greatly was this remedy prized by the English people 
 that its continuance and uninterrupted use were among the 
 guarantees which they compelled the King to give in written 
 charter. It is equally esteemed in America. Article I, Section 9, 
 Clause 2, of the Constitution of the United States declares: "The 
 Privilege of the writ of habeas corpus shall not be suspended, 
 unless when in cases of invasion or rebellion, < the public safety 
 may require it." Similar guarantees are contained in most, if 
 not in all, of the State constitutions. Some of the State con- 
 stitutions go even further and declare that the writ of habeas 
 corpus is a legal right and should never be suspended. 
 
 A large part of those portions of State Constitutions usually 
 designated as bills of Rights are guarantees of personal freedom 
 of action intended to protect the citizen in his liberty. 
 
 These guarantees are not identical in phraseology nor even in 
 scope in all the constitutions, but their real spirit and substance 
 is largely the same. Among the most frequent are provisions
 
 196 AMERICAN ELEMENTARY LAW. 
 
 against unreasonable seizure and search; to secure the privilege 
 of bail in reasonable amount; to insure a speedy and public trial 
 by an impartial jury; to entitle a person accused of crime to full 
 information as to the nature of the charge against him ; to guar- 
 antee against testifying against himself in criminal cases; to 
 guarantee the right of being heard by himself or counsel in 
 every trial to which he is a party; to be confronted with wit- 
 nesses against him ; and forbidding that he shall twice be put in 
 jeopardy for the same offense or tried again for the same offense 
 after a verdict of not guilty.
 
 CHAPTER VIL 
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION (CONTD.) 
 
 PERSON AL RIGHTS ( CONTD.). 
 
 THE RIGHT TO CONTRACT. 
 
 The right to contract as well as a number of the rights dealt 
 with in the paragraphs immediately succeeding this may well be 
 included under the preceding head of Freedom of Action but 
 these special kinds of action are so important that it is better to 
 deal with them under separate headings. 
 
 The right to contract is the right to create, modify or destroy 
 legal rights by executory agreement of parties. It is apparent 
 that this right is very important and its exercise far-reaching. 
 In recognition of these facts the law limits this right in many 
 ways. In the first place it is quite careful to determine and 
 define what agreement is, and in the second place, it is equally 
 careful in determining what characteristics agreement must have 
 before the law will undertake to recognize it as affecting legal 
 rights. 
 
 Agreement. 
 
 Agreement is the real meeting of the minds of two or more 
 parties. It involves two elements : first, a common understanding 
 and second, a concurrence of the wills of the parties. That is, 
 the parties to an agreement must understand the matter alike 
 in all its material features, and, so understanding it, must have 
 the same will concerning it. Absence of either of these elements 
 prevents agreement. It is for this reason that mutual mistake 
 or duress prevents agreement and that fraud vitiates it. Mutual 
 mistake prevents agreement because the minds of the parties are 
 dealing with different subject matter and their understandings 
 do not meet. Duress prevents agreement because, though the 
 understandings meet, there is no mutual concurrence of will. 
 Fraud vitiates agreement because there is no real meeting of
 
 198 AMERICAN ELEMENTARY LAW. 
 
 the minds on the basis of truth but only a supposed or fictitious 
 meeting of the minds on the basis of the fraudulent misrepre- 
 sentation. 
 
 These matters may be made plainer by example. If A and B 
 attempt to enter into an agreement regarding the sale of a piece 
 of land, have the same tract in mind, inspect it together, discuss 
 the terms cf the sale, have a common understanding concerning 
 all these matters and then have the same will regarding it, that 
 is, A wills to sell the particular tract of land on the designated 
 terms to B, and B wills to buy the particular tract of land on 
 those terms from A, and this common understanding and will are 
 declared between them, there is agreement. 
 
 If A and B attempt to enter into an agreement regarding the 
 sale of a piece of land, but A has one tract in his mind and B 
 has another in his, there is no meeting of the minds on a common 
 subject matter and no agreement. This transaction could not 
 effect a sale of the land or a change of legal rights. It is not 
 a sale of the tract which A thought he had sold because B never 
 agreed to buy that. It is not a sale of the tract which B thought 
 he had bought because A had never agreed to sell that. The 
 transaction would be mutual mistake and not an agreement. 
 
 If A has a tract of land and B is anxious to acquire it and goes 
 to A with a deed ready for signature, reads the deed over to A. 
 explains it to him, and offers him five hundred dollars in cash 
 for the land, and A refuses this, and B presents a pistol toward 
 A and compels him to sign the deed, takes the deed and leaves 
 the five hundred dollars, this would not be an agreement. A and 
 B understood the transaction alike. There is no mistake about 
 the matter, but A's will did not act voluntarily in signing the 
 deed. He was compelled to do so in order to save his life. There 
 is no mutuality of will, hence no agreement. It is a case of 
 duress. 
 
 A has a tract of land which he desires to sell and which he 
 knows to be barren and worthless. B desires to buy a tract of 
 land for fanning purposes. A designedly misrepresents the tract 
 which he owns and states to B that it is fine farming land, in 
 a good state of cultivation, yielding large crops. B, being un- 
 acquainted with the land, believes A's statements regarding it 
 and is so induced to buy it and does buy it. This would be a clear
 
 LEGAL BIGHTS AND THEIR CLASSIFICATION. 199 
 
 case of fraud. It is not a case of mutual mistake for A knew 
 the exact truth about the land all the while. It is not a case of 
 duress for A has not used force or threats to overcome B's will. 
 It is not a case of true agreement because B did not agree to buy 
 the tract of land as it really was, but to buy a tract having the 
 qualities falsely attributed to A 's tract by A. The assent of B 's 
 mind was not given to the purchase of the real tract but of the 
 non-existent tract which A described. The law deals with this 
 anomalous situation by declaring that the transaction will bind 
 A, if B so desires, but will not bind B if he desires to be re- 
 lieved. 
 
 Essentials of Contract. 
 
 The foregoing gives the idea of agreement. The next inquiry 
 arising is, does the law recognize and undertake to enforce all 
 agreements, or does it limit its recognition to those having certain 
 characteristics or elements ? The answer is that the law is quite 
 careful regarding the creation, modification, and destruction of 
 legal rights by agreement of parties and requires that every 
 agreement, to be enforceable at law, must have certain character- 
 istics. 
 . These characteristics are: 
 
 1. Legally competent parties, 
 
 2. Legality of purpose, 
 
 3. Consideration, 
 
 4. Proper form. 
 
 A true agreement having each of the four foregoing elements 
 is legally enforceable and is properly called a contract. It is a 
 very general rule that agreements still unperformed, which lack 
 any one or more of these characteristics, will not be enforced 
 either by compelling the parties to fulfill the promise or by allow- 
 ing damages for refusal to do so. 
 
 Parties. — Agreement necessarily implies at least two parties. 
 The general rule is that every person is legally competent to enter 
 into binding agreements. And the parties undertaking to make 
 an agreement are presumed by law to be competent until proven 
 otherwise. 
 
 The persons who have not the power to contract, or rather whose 
 power to contract is specially limited, are insane persons, drunken
 
 200 AMERICAN ELEMENTARY LAW. 
 
 persons, minors, and married women. These limitations are not 
 imposed by way of reflection or penalty but as a means of pro- 
 tection against improvident impulses of the parties themselves 
 or undue influence of others. It follows that the limitations are 
 enforced in those classes of cases in which the real interest of 
 the abnormal party is subserved by recognizing the power to 
 bind himself, hence we find that agreements of insane and 
 drunken persons and of minors for purchase of necessaries are 
 sustained. The same considerations do not apply with equal 
 force in the case of married women, as they are permitted by 
 law to obtain necessaries on the credit of their husbands. Still 
 in many states a married woman can bind her separate property 
 for necessaries, even though her Common Law disabilities have 
 not been removed in other respects. 
 
 Purpose. 
 
 Of course, the law can not undertake to uphold any person 
 in its own violation, and therefore it can not recognize or attempt 
 to enforce any agreement which has a direct unlawful purpose. 
 There are some very nice questions as to just how closely con- 
 nected the agreement must be with the proposed violation of the 
 law to render it unenforcible. It seems to be clear that, whenever 
 the purpose is to violate the law, and this intent is common to 
 both parties, the agreement is unenforcible. If the purpose be to 
 commit a heinous offense, and this is entertained by one person 
 and known to the other, the result is the same. If, however, one 
 has an unlawful purpose, unknown to the other, it will not avoid 
 the agreement to the injury of the innocent party. If the pur- 
 pose be not heinous, but be to break some statutory provision not 
 involving moral turpitude, if it be known to but not acquiesced 
 in by the other party, the result is unsettled, in our law. The 
 foregoing statements are general, and apply alike to all cases of 
 contracts, except in a few of those which are merely mala pro- 
 hibita and as to which the legislature did not intend to affect the 
 enforcibility of the agreement by prohibiting it. These cases are 
 extremely rare, but do sometimes arise. 
 
 It may be well to consider agreements forbidden by statute 
 more in detail. 
 
 In these cases the effect upon the agreements, and on the rights
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 201 
 
 and liabilities of the parties under it, is exclusively one of legis- 
 lative intent. "Whatever the intent' may be, the courts must en- 
 force it. These agreements may be placed in five groups : 
 
 Group 1 : Agreements expressly prohibited by law, with express 
 penalty of nullity. Here there can hardly be said to be any room 
 for construction. The law says the attempted agreement is void 
 and can not be enforced, and that ends the matter. 
 
 Group 2: Agreements expressly prohibited, with a criminal 
 penalty, but nothing said as to consequences civilly. Here, as I 
 understand, the courts apply the rule that no cause of action can 
 arise from a violation of the criminal law, in behalf of the wrong- 
 doer. And as both parties to the agreement are wrong-doers, the 
 attempted contract is unenforcible. 
 
 Group 3 : Agreements forbidden by statute, no penalty, civil or 
 criminal, being denounced. These are put on the same footing as 
 the preceding classes. The effort to enter into the forbidden 
 agreement being itself unlawful, no cause of action arises from 
 it. There is some conflict in the cases, but I think that this rule 
 is sustained by the weight of authorities. 
 
 Group 4. Agreements prohibited expressly, but where the whole 
 act, taken together, shows that the legislature did not design that 
 the agreement should be void. Here, as in other cases, the legis- 
 lative intent is respected and the contract is declared not to be 
 void, but the penalty contemplated by the legislature is imposed 
 upon the party or parties. 
 
 Group 5 : Contracts expressly prohibited, with an express pen- 
 alty prescribed by the act, which is not nullity, but which is for 
 the benefit of certain persons. In such cases the contract will 
 be enforcible in favor, of, but not against, the person in whose 
 favor the penalty is provided. 
 
 Consideration. » 
 
 To support an unexecuted promise at Common Law, there must 
 be some consideration. This is something of value, in the eye of the 
 law, moving from one party to the other, either for the benefit 
 of the promisor or to the detriment of the promisee. It is not 
 the same as motive. Motive may be ex parte, or unilateral. Con- 
 sideration is something in the minds of both parties, which both 
 recognize as inducement to the promise. (Bouvier's Law Die-
 
 202 AMERICAN ELEMENTARY LAW. 
 
 tionary, "Consideration.") It may take many forms, but must 
 always be present in some form in an enforcible agreement. It 
 need not be in such proportion to the thing promised as to be 
 adequate, though inadequacy may be considered, in connection 
 with other evidence, as indicating fraud, or undue influence, or 
 unconscientious advantage. 
 
 At Common Law instruments under seal are said to import 
 consideration. Whether this means that the seal is a substitute 
 for consideration and so dispenses with consideration in fact, or 
 is presumptive evidence of consideration and hence only relieves 
 from the necessity of pleading and proving it, is an unsettled 
 matter. Whichever view be taken a contract under seal can be 
 enforced at Common Law without the necessity of either plead- 
 ing or proving that it was based upon or supported by consid- 
 eration. 
 
 At Common Law written agreements not under seal and verbal 
 agreements do not import consideration and will not be enforced 
 unless consideration in fact exists. 
 
 The Civil Law and the Law Merchant did not regard con- 
 sideration as essential to the obligation of agreement. The pres- 
 ent rules of the Law Merchant recognize it as essential, but pre- 
 sume it to exist in all negotiable contracts. This presumption 
 is prima facie only as between the original parties, or others hav- 
 ing notice, but is conclusive in behalf of innocent purchasers of 
 paper before maturity, for value, without notice. If any one of 
 these facts is wanting, the consideration may still be inquired into. 
 
 Form. 
 
 Form of some kind is essential to contract. This is but another 
 way of saying that the assent of the parties to the agreement must 
 be manifested and evidenced in some way before the law can take 
 cognizance of it and enforce it. In the great majority of in- 
 stances the agreement is evidenced by spoken words, and fre- 
 quently words and acts are sufficient and, in rare instances, acts 
 unaccompanied by words may be taken as sufficiently indicative 
 of assent. 
 
 In certain classes of contracts coming under what is usually 
 denominated the Statute of Frauds, form is emphasized to such 
 extent that the law requires the agreement to be reduced to
 
 LEGAL BIGHTS AND THEIR CLASSIFICATION. 203 
 
 writing and signed by the parties. In some agreements the law 
 goes beyond this and requires that the writing be sealed. 
 
 Whatever may be the requirements of the law as to the form 
 of any particular agreement these requirements must be com- 
 plied with or the agreement will be non-enforceable. This gen- 
 eral rule is subject to a few exceptions which need not be con- 
 sidered at this time. 
 
 The Bight to Acquire, Hold and Dispose of Property. 
 
 This is an important right, which pertains to individuals as 
 members of society. It must be carefully distinguished from 
 the actual ownership of some particular thing, which would be 
 classed under the fourth general heading of rights in things. 
 The matter now under consideration is the general capacity, 
 which a person has in law, to acquire and hold property. The 
 right exists in all normal persons, and may be exercised by them, 
 in conformity with the law, as often and to as great an extent as 
 they may be severally able. Property can only be acquired by 
 lawful means, used for lawful purposes, and disposed of in lawful 
 ways; but, within these legal limits there is no restriction upon 
 the amount of property that any one individual or number of 
 individuals may acquire and hold. 
 
 Perhaps the distinction between the personal right now under 
 consideration, that is, the general right to acquire and hold prop- 
 erty, on the one hand, and the right in a particular thing which 
 the owner has already acquired and is now holding, on the other 
 hand, may be plainer by illustration : Suppose an auction is being 
 held. Any one has a right to bid for the property on sale. A 
 particular thing is offered, and a number of persons bid for it. 
 As each one makes his bid, he therein exercises his right to acquire 
 property, and if the article be struck off to him, this specific thing 
 will become his. He does not, by thus exercising his authority 
 to acquire property and buying a particular thing exhaust it; 
 and, if another article is put up and he desires it, he still has 
 capacity as a buyer, and if he bids and that article is struck off 
 to him, he will own that also. In each case, by the exercise of 
 his general capacity to buy, he has acquired actual ownership 
 over a specific thing, and has rights in that thing and can control 
 the conduct of others with reference to it. Suppose, in the
 
 204 AMERICAN ELEMENTARY LAW. 
 
 progress of the auction, some one shall falsely and maliciously 
 state to the auctioneer that the bidder is insane or insolvent, and 
 thus induce the auctioneer to refuse his bid, although it is the 
 highest; this unlawful interference with the general right to 
 acquire property, existing in the bidder, would prevent the vest- 
 ing in him of the ownership of the thing bid for, and he would 
 not acquire any right in it ; still, he would have a cause of action 
 against the unlawful intermeddler for interfering with his right 
 to buy. This right to buy is the matter now under consideration, 
 and is a personal right. 
 
 The second phase of this right is the capacity to hold property 
 It is one of the most important among the personal rights. It is 
 so closely connected with the owner's rights in the property held 
 that it need not be discussed at this time, except to say that it 
 is practically without legal limitation, save in the case of cor- 
 porations and aliens, who are each often limited as to the quantity 
 of real estate which they may own, and the length of time they 
 may hold it. 
 
 The right to convey property is also an important one. This, 
 also, is subject to legislative control so far as the public good may 
 require. If dealing in any particular article or commodity is 
 contrary to the general good by affecting injuriously either the 
 safety, health or morals of the people, such dealings may be either 
 prohibited or regulated, as the best interests of the public may 
 demand. "When such course of dealing is continuous or exten- 
 sive, it would be regarded as the conduct of a business, and would 
 come under the next paragraph ; but even the single act involved 
 in a single disposition may be prohibited or regulated. 
 
 Right to Carry on Business. 
 
 This right is rather a combination or outgrowth of the two 
 just discussed — the right to contract and to acquire, hold and 
 dispose of property; but as it is often practically presented as 
 a right to follow a certain occupation or prosecute a certain busi- 
 ness enterprise, it needs some consideration. Every individual 
 has an unquestioned right to occupy his time, means and capacity 
 in any way that he sees fit, so long as he does not unduly interfere 
 with the just and legal rights of other individuals, or the com- 
 munity at large. But, whenever such interference begins, his 
 right ceases. It is, therefore, one of the unquestioned preroga-
 
 LEGAL. RIGHTS AND THEIR CLASSIFICATION. 205 
 
 tives of the State to provide special regulations for, or wholly to 
 prohibit, such occupations and engagements as interfere, in a 
 way that can be practically appreciated, with the safety, health 
 or morals of the community. This right has been exercised, from 
 time immemorial, by all civilized governments ; and, as civilization 
 advances and public opinion becomes better informed and estab- 
 lishes higher standards as to health and safety, the exercise of 
 the right by the government is proportionately extended. 
 
 A Right to Form Special Relations. 
 
 This right is closely allied to, yet somewhat different from, 
 those which we have just been considering. It is an extensive 
 and practically valuable right. Under it fall the right to form 
 family relations and other social connections and combinations. 
 Its exercise is regulated largely by social sanctions and public 
 opinion. It is not, however, beyond the control of governmental 
 agencies, as we see in the statutes forbidding marriage between 
 persons within certain degrees of kinship or belonging to different 
 designated races, and also in the regulations as to marriage cere- 
 monies and similar enactments. 
 
 Freedom of Speech. 
 
 So valuable to the public and to individuals is this right re- 
 garded that it is guaranteed, both in our Federal and State Con- 
 stitutions. Nothing on this subject was contained in the Con- 
 stitution of the United States as originally adopted, but the 
 omission was made so formidable an objection to the instrument 
 that a provision curing the defect was incorporated in the first 
 amendment, and Congress has been thenceforward forbidden to 
 make any law abridging the freedom of speech or of the press. 
 
 This amendment has no application to the several state govern- 
 ments but there is a similar article in almost, if not in every 
 State Constitution. We give the one in the constitution of Texas 
 as fairly typical. 
 
 "Every person shall be at liberty to speak, write or publish 
 his opinions on any subject, being responsible for the abuse of 
 that privilege; and no law will ever be passed curtailing the 
 liberty of speech or of the press,. " These provisions, read 
 casually, would seem to guarantee unrestrained license in the 
 matter of expressing thought ; but this is not true. Freedom of
 
 206 AMERICAN ELEMENTARY LAW. 
 
 speech is not license of speech, but is liberty of speech — that is, 
 the right to speak, limited by due and just regard for the rights 
 of others. Each man's right of speech stops where the other 
 man's right of reputation sets in. It is as much the duty of the 
 sovereign to protect the one in his just good name as to guarantee 
 to the other the right to express himself on proper occasions on 
 proper subjects. So that, notwithstanding these constitutional 
 provisions, reasonable and just laws are enacted punishing de- 
 famation, both criminally and civilly. 
 
 Freedom of Thought. 
 
 Thought, unexpressed by word or act, is the individual concern 
 of the mind producing it, and the law does not take cognizance 
 of it. When it is expressed, it becomes conduct, and is regulated 
 by the rules applicable to freedom of action. 
 
 Freedom of Conscience. 
 
 This is in the same category as freedom of thought. When the 
 eonscience manifests itself in words or conduct, these become 
 proper subject matter for legal cognizance. The law is very 
 tender in its regard for the conscientious . scruples of the indi- 
 vidual, and allows to him the very largest latitude consistent 
 with the safety of other individuals, and 6f the public. But one 
 can not, under claim of obedience to conscience or to a religious 
 duty or in worship, do acts which are directly invasive of the 
 rights of others, or detrimental to the public safety. 
 
 If a sect or an individual should conscientiously believe that 
 human sacrifice was pleasing to or commanded by the god whom 
 he worshipped, he still would not be permitted to take the life of 
 the proposed victim and justify it as a religious rite. Also, if a 
 sect should undertake to carry on some public form of meeting 
 which was manifestly indecent or immoral, it would be prohibited 
 from so doing. Still, if the act or acts be not clearly contrary to 
 public morals and to the legal rights of others, the government 
 will not interfere. 
 
 Right to Reputation. 
 
 Character is what a person really is; reputation is what he is 
 generally thought to be. In the early stages of social life but 
 little, if any, protection was afforded to reputation. As the world
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 207 
 
 progressed in enlightenment and its appreciation of real values, 
 social and business standing were seen to depend very largely 
 upon what was generally thought of a person, and the law took 
 cognizance of his right to a fair reputation and threw its pro- 
 tection around it. The general rule of law on this subject may 
 be stated thus : A person has a legal right to a reputation exactly 
 corresponding with his character — no better, no worse. To this 
 general rule there are a few exceptions, made from considerations 
 of public policy. These exceptions are all made against the 
 protection of the reputation. 
 
 The truth of the matter stated is always a complete defense in 
 any civil suit for defamation. So that, if one has a reputation 
 better than his character and another shall, by telling the truth, 
 reduce his reputation to the level of his character, no matter how 
 injurious this may be to the individual, it is never a tort. The 
 law looks at the matter differently, however, when the rights of the 
 public are concerned, and often, to prevent breach of the peace 
 and preserve public order, it will make the utterance of charges 
 of certain kinds against individuals criminal and punishable as 
 such, whether they be true or false. 
 
 The exceptions to the rule that false defamatory statements 
 arc actionable are based on considerations of public policy. 
 They are but an application, in this particular matter, of the 
 general rule that the public safety is the supreme law. We find, 
 therefore, if the person making the utterance is one charged with 
 an official duty and the utterance is made in the discharge of or 
 in immediate connection with such duty, the injury must be 
 borne by the person defamed, and no redress can be had from 
 the officer. This is true, even if the officer making the statement 
 knows it to be false and acts maliciously; provided, always, it is 
 made in the discharge or is directly connected with the dis- 
 charge of his public duty. The nonliability to private suit for 
 utterances made by public officials under the circumstances in- 
 dicated, is absolute and unconditional, and statements thus pro- 
 tected are known as absolutely privileged communications. 
 
 "When the person making the defamatory statement does not 
 owe a public duty, and is not discharging such a duty, but still 
 sustains such relation to the person to whom the statement is 
 made that he owes to him a duty of giving information concern-
 
 208 AMERICAN ELEMENTARY LAW. 
 
 ing the person defamed, out of consideration of this private duty 
 the law gives to the person giving the information a conditional 
 privilege to speak. This privilege is not absolute, but is condi- 
 tioned upon the absence of malice and the presence of good faith 
 that is, when a statement is made, in the attempted discharge of 
 a duty to give private information, the person making the state- 
 ment, in order to claim the privilege arising from such duty must 
 be able to show that he was not actuated by malice, and honestly 
 believed the statement to be true. If these conditions are shown, 
 he is not liable for any injurious consequences of the statement 
 made, although it were really false. 
 
 These two doctrines of absolutely and conditionally priv- 
 ileged communications constitute material limitations upon the 
 right to protect one's reputation. Subject to them, the general 
 rule, as stated above, is that each person is legally entitled to a 
 reputation which is the exact equivalent of his real character; 
 and hence no statement is, legally speaking, defamatory or in- 
 jurious, which is true and only tends to bring his reputation to 
 the level of his character. Every statement that is not privileged, 
 which is false and does bring the reputation below the standard 
 of character, is actionable, the amount of recovery depending in 
 each case upon its facts and circumstances.
 
 CHAPTER VIII. 
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION (CONTD.) 
 CIVIL RIGHTS. 
 
 The term civil rights has come into frequent use in connection 
 with Amendments XIII and XIV to the Federal Constitution and 
 acts of Congress thereunder. As thus used the term is very com- 
 prehensive covering a great many of the rights included in other 
 classes and perhaps a few not included in any other. They em- 
 brace the right to equal protection of the law, to due process of 
 law, to equal enjoyment of public privileges, and to share only 
 equally in public burdens. 
 
 Equal Protection of Law. 
 
 These are rights dependent on membership in some particular 
 State or goverment. The first and most important of them is to 
 have equal protection under the law. There are several provisions 
 in the Federal and State Constitutions guaranteeing this right. 
 The first section of the fourteenth amendment to the Federal Con- 
 stitution is in these words : 
 
 "All persons born or naturalized in the United States, and sub- 
 ject to the jurisdiction thereof, are citizens of the United States 
 and of the State wherein they reside. No State shall make or en- 
 force any law which shall abridge the privileges or immunities of 
 citizens of the United States, nor shall any State deprive any per- 
 son of life, liberty or property without due process of law, nor 
 deny to any person within its jurisdiction the equal protection of 
 the laws." But this must be a denial by governmental action and 
 not by act of the individual, to be an infringement of this princi- 
 ple. The privileges and immunities guaranteed by this amend- 
 ment are those pertaining to the person by nature, or by reason 
 of citizenship or membership in the United States government, 
 and do not include political rights in the several State govern- 
 ments. 
 
 14
 
 210 AMERICAN ELEMENTARY LAW. 
 
 Due Process of Law. 
 
 The guarantee as to due process of law is for the benefit of all 
 persons, and can be invoked by any one whose rights are being 
 dealt with by the governmental agencies of either the Federal or 
 State governments, or whose rights are involved in any litigation 
 pending in the courts of either sovereignty. 
 
 The phrase, due process of law, is hard of definition. The 
 courts have frequently declared that it is better policy not to at- 
 tempt to define it, but to deal with each case in which it is invoked 
 upon its special facts and circumstances. While this may be 
 practically convenient, it is theoretically very unsatisfactory. It 
 is an expression of great age, and is by some early English 
 authors regarded as equivalent to the law of the land, and this 
 view seems to be generally entertained by judges and writers in 
 the United States. 
 
 While exact limits may not be set to it, still it may definitely be 
 stated to include certain fundamental ideas. The right guar- 
 anteed forbids the government to deprive any citizen of rights 
 either of person or property except in due conformity to the rules 
 and principles of the Common Law. As said by Johnson, Justice, 
 in Bank v. Okely, 4 Wheaton, 235, it is apparent that "as to the 
 words from Magna Charta incorporated in the Constitution of 
 Maryland, after volumes spoken and written with the view to their 
 exposition, the good sense of mankind has at length settled down 
 to this : that they were intended to secure the individual from the 
 arbitrary exercise of the power of government, unrestrained by 
 the established principles of private rights and distributive jus- 
 tice." 
 
 Judge Cooley, in his* work on Constitutional Limitations, 441, 
 says: "Due process of law, in each particular case, means such an 
 exercise of the powers of the government as the settled maxims of 
 law permit and sanction, and under such safeguards for the pro- 
 tection of individual rights, as these maxims prescribe for the 
 class of cases to which the one in question belongs." 
 
 Mr. Webster, in his brief in the Dartmouth College case, 
 4 Wheaton, 518 says : ' ' By the law of the land is more clearly in- 
 tended the general law, a law which hears before it condemns; 
 which proceeds upon inquiry, and renders judgment only after 
 trial. The meaning is that every citizen shall hold his life, lib-
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 211 
 
 erty, property, and immunities under the protection of the gen- 
 eral rules which govern society. Everything which may pass un- 
 der the form of an enactment is not, therefore, to be considered 
 the law of the land. ' ' 
 
 The phrase is not limited to judicial proceedings. On the other 
 hand, exercise of the power of eminent domain, or of the police 
 power, or the taxing power according to the usages and customs 
 and general principles of law and justice applicable in each par- 
 ticular case, is due process of law. The rule frequently is invoked 
 with reference to legislative action depriving, or tending to de- 
 prive, individuals of property or personal rights without judicial 
 investigation and adjudication. 
 
 The general requirement as to the deprivation of right in judi- 
 cial proceeding is that the party whose right is to be affected must 
 have had prior information as to the intent to deprive him of such 
 right, and the facts or grounds upon which such deprivation is 
 sought; and, second, he must have an opportunity to be heard 
 before some legally constituted tribunal, with reference to such 
 charges, both by discussion and consideration of the charges and 
 their nature and his legal privileges and rights with reference 
 thereto, and also by the introduction of competent testimony in 
 his own behalf and the exclusion of illegal and incompetent testi- 
 mony against him. The methods of depriving a citizen of his 
 legal rights, by other departments of the government in exercise 
 of other powers, do not frequently involve this process of infor- 
 mation conveyed to him as to the charges and investigation con- 
 cerning the charge, but in each case the established usages of the 
 Common Law must be followed. 
 
 The fifth amendment to the Constitution of the United States 
 guaranteed the right of due process of law to all citizens of the 
 Federal government, so far as the action of the Federal govern- 
 ment was concerned. The fourteenth amendment, as quoted 
 above, extends this guarantee, and makes it embrace the State 
 governments, and their action as well. So that now, neither 
 State nor Federal government can deny to a citizen "due process 
 of law." Similar guarantees of this same right are found in the 
 Constitution of each State of the Union forbidding the govern- 
 ment organized thereby from interfering with or denying to the 
 citizen this right.
 
 212 AMEIilCAN ELEMENTABY LAW. 
 
 POLITICAL RIGHTS. 
 
 Suffrage. — The most important political right is participation 
 in government, This is, strictly speaking, a right derived from 
 the law as made by the sovereign. Those members of the commu- 
 nity in which sovereign power is lodged determine, by their own 
 judgment and will, what classes of persons shall participate in the 
 exercise of sovereignty. In such determination, the majority 
 rules, so that we sometimes find that this right will be extended to 
 include persons not theretofor entitled to participate ; a most con- 
 spicuous illustration being the enfranchisement of the negro, as 
 the result of the Civil War. Again, it sometimes occurs that the 
 majority of the electors will determine that certain qualifications 
 which such majority possesses, but which are not enjoyed by a 
 minority of their present number, shall be essential to the exer- 
 cise of the right of suffrage; and, when this will is properly de- 
 clared and announced, those persons who were formerly enfran- 
 chised, but who are now disqualified, can no longer insist upon 
 the right of suffrage, as one pertaining to them as individuals, 
 and of which they could not justly be deprived. 
 
 The usual method of exercising this right of participation in 
 government is by voting. Who shall vote in any particular gov- 
 ernment is always determined by the will of the sovereign in that 
 government. As pointed out before, the qualification of electors 
 in the Federal government depends, in each State, upon the will 
 of the people of that State, subject only to the limitations of the 
 fifteeth amendment, which forbid the disqualification of any per- 
 son as a voter on account of race, color or previous condition of 
 servitude. In all other respects the several States may make such 
 regulations as to suffrage as they see fit. These regulations do, in 
 fact, differ largely in the different states and it would not be 
 profitable to attempt to deal with the matter in detail. 
 
 The right to vote is the right to express one 's choice with regard 
 to any matter and to have such expression counted and given its 
 proportionate weight in the determination of the issue. 
 
 It is the duty of the state to protect the voter in the exercise of 
 his franchise. To accomplish this it is necessary to secure to him . 
 not only an expression of his preference but also to provide that 
 his vote shall be counted and estimated at what it is really worth. 
 Each legal vote cast at an election is of equal value and should 
 have equal weight. To permit illegal voting is to destroy this
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 213 
 
 equilibrium and to diminish the relative value of every legal vote 
 in opposition to which an illegal vote is received- 
 Office Holding. 
 
 Holding office is another method of actual participation in the 
 administration of government. It will be readily seen that this is 
 not a right pertaining personally to any man or set of men, but 
 only to such persons as, according to the rules and usages of law, 
 are selected for this purpose and inducted into office. 
 
 Jury service is rather a duty than a privilege. Clearly the sov- 
 ereign has the right to designate what class of persons shall per- 
 form this important function, how they shall be selected, and un- 
 der what limitations they shall serve. 
 
 Right of Petition. 
 
 The right to present petitions to different governmental 
 agencies is one recognized as existing in all people. For its denial 
 it would be practically very difficult to give adequate and appro- 
 priate remedy, except by criminal prosecution and removal from 
 office, or by impeachment. It is more, in its nature, an effort to 
 persuade than a right practically enforcible by law. 
 
 RIGHTS AGAINST PARTICULAR PERSONS. 
 
 These are rights which exist only in behalf of particular per- 
 sons against particular persons. They are not rights pertaining 
 to any one or more designated persons and enforceable against 
 the whole world nor are they rights pertaining to everyone 
 against a particular person or persons. They exist only in favor 
 of a particular person or persons and are enforceable only against 
 a particular person or persons. 
 
 Dependent on Contract. 
 
 By far the larger share of these rights arise from agreement or 
 contract between the parties having the right and owing the cor- 
 relative duty. In some instances, however, they grow out of 
 special relations between parties which do not depend upon agree- 
 ment between them. 
 
 Such of these rights as depend upon contract are regulated 
 largely by contract law and the agreements from which they re- 
 sult must have the characteristics that have been heretofore indi-
 
 214 AMERICAN ELEMENTARY LAW. 
 
 cated, viz., genuineness, competency of parties, legality of pur- 
 pose, consideration, and proper form. 
 
 This class of rights is very extensive and covers most of the re- 
 sults of the business activities of the world. They include agree- 
 ments to pay money, to render service, or to do or not to do any 
 of the innumerable things that are covered by the contracts of 
 men in carrying out their several occupations. 
 
 In this class are all the respective rights between master and 
 servant, principal and agent, common carrier and patron, bailor 
 and bailee, and all other such special relations as may exist be- 
 tween particular persons. 
 
 Not Dependent on Contract. 
 
 In this class are the rights existing between parent and child as 
 such. They are scarcely to be regarded as rights in the strict use 
 of the term. The authorities usually speak of them as rights of 
 imperfect obligation ; that is, as conditions which the law recog- 
 nizes, and which it takes into account in construing and determin- 
 ing the legal effect of the voluntary acts of the parties, and yet 
 out of which, considered strictly as such, no enforceable obligation 
 arises. That is, the parent is recognized as morally and legally 
 bound to support the child; and if he fails to do so and a third 
 party supplies the child with necessaries, the parent may be 
 forced to pay for them ; but the child would have no cause of ac- 
 tion for the pain or inconvenience or injury sustained by it by 
 reason of the want of proper nourishment and support. So the 
 parent is entitled to the wages of the child earned during minority 
 and if the child works and earns wages the parent can compel the 
 party for whom the service was rendered to make the payments 
 to him ; but if the child does not work, and does not earn wages, 
 the parent can not sue him for such failure and compel him to 
 pay to the parent the value of the child's time. These conditions 
 are anomalous, but must not be overlooked. 
 
 The rights and duties existing between an officer of the law and 
 those with whom he deals in his official capacity also come under 
 this head. The same is true as to all rights and duties incidental 
 to other special relations which do not depend upon contract. 
 
 RIGHTS IN THINGS. 
 
 When a person sustains such a relation to a thing that he has 
 over it the dominion known as ownership, we say, and say truly, 
 that he has a right in the thing. Such rights are enforceable
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 215 
 
 against all persons, and not against specific or particular persons, 
 and, for this reason, they are very frequently called rights in 
 rem, or rights enforceable against the whole world. These terms 
 and designations are quite appropriate and would be very useful 
 but for the fact that they have been used by so many persons and 
 in so many different senses that it is almost impossible to keep in 
 mind just what different persons mean by them ; and so it seems 
 best to use the simpler expression of rights in things. These 
 rights are also known as property rights. This is quite an apt 
 designation. 
 
 Ownership. 
 
 Ownership, in full sense, has five elements: (1) The right of 
 possession; (2) of use; (3) to receive profits or increment; (4) to 
 modify or destroy; (5) to dispose of. When these five powers, or 
 privileges, combine in one person as to any one thing, such person 
 is the general owner of such thing. These rights of the general 
 owner are exclusive, and the law, in recognizing them, gives to 
 him the capacity to control others with reference to the thing thus 
 owned. He may keep it in his possession or, if he desires, place it 
 in the possession of some other person willing to receive it; he 
 may use it himself exclusively and deprive all other persons of 
 any participation in such use ; he may receive and appropriate to 
 himself, to the exclusion of all others, all profits and benefits aris- 
 ing from it ; he may change its form or nature, or destroy it en- 
 tirely, and he may also dispose of it, or transfer his title or estate 
 to other persons. Thus, if A owns a tract of land and any one 
 else enters into possession of it and seeks to appropriate its use 
 and benefit to himself, the sovereign will, upon proper application 
 by A, or his proper representatives dispossess the intruder and re- 
 store A to possession; and will also compel the wrong-doer to ac- 
 count to A for the reasonable value of the use of the land, while 
 unlawfully detained by him, and for any injury he may have 
 done to it during his possession. The same is true of personal 
 property. The owner can compel the trespasser to surrender the 
 thing to him, and account for the reasonable value of its use, and 
 also for damages done to it by him. If the wrong-doer has de- 
 stroyed it or taken it away so that the owner can not regain the 
 thing itself, he may compel payment of its value. 
 
 Thus we see that a person invested with complete ownership in 
 a thing can prevent its use, possession, injury or destruction by
 
 216 AMERICAN ELEMENTARY LAW. 
 
 another, or hold such other responsible for a disregard and viola- 
 tion of his (the owner's) rights in either of the elements of own- 
 ership. The owner also has the affirmative right of possession use 
 and enjoyment himself, without liability to any one therefor. He 
 may also modify or change the thing owned. If it be personal 
 property, he may absolutely destroy it. If it be land, he can 
 remove or destroy the improvements thereon, quarry the rock, cut 
 the timber, or in any way lessen or diminish its value, and in no 
 event will he be liable to any one else for so doing. 
 
 His right of ownership also extends to the power of disposition 
 over the property; that is, he may transfer his estate or owner- 
 ship to another and substitute the latter for himself in his rela- 
 tion to the thing. This right of disposition, or power of substitu- 
 tion, may be exercised either fully, by transfer of the whole estate. 
 to the whole property, or partially by transfer of some estate less 
 than all, or by transfer of the whole estate to some part of, but 
 not to all, of the thing owned. From the transfer of some inter- 
 est, claim or estate less than the complete ownership results what 
 is known in law as special or limited ownership of property. 
 
 When we say that the person is the general owner of a thing 
 and has complete and unlimited estate in it or title to it, we speak 
 relatively. We mean he has the highest form or character of title 
 and the most beneficial ownership which the law recognizes. We 
 do not mean that he can enjoy any one of the incidents of -owner- 
 ship absolutely and without limitation. All ownership is not only 
 subject to limitation while it continues, but the estate itself, with 
 all its incidents, may be taken from the owner at any time, if the 
 public good requires it. If this taking be under the exercise of 
 the power of eminent domain it must ordinarily be accompanied 
 by compensation, or provision for compensation. If, however, the 
 taking be under the ex&rcise of the police power, the owner is not. 
 in all instances, guaranteed even this right of compensation. 
 Here, also, the public safety is the supreme law. and if it be 
 demonstrated that the public safety requires the sacrifice of the 
 property of the individual, the right of the individual must yield. 
 
 So, as to changes or modifications of the thing, and so also in 
 the regulation of the right of disposition. Illustrations of the 
 latter are constantly occurring. The statutes regarding the trans- 
 fer of real estate require that they be in writing. Denials to 
 minors and married women of the power to sell land at all, or
 
 LEGAL. RIGHTS AND THEIR CLASSIFICATION. 217 
 
 only in prescribed ways, etc., are so familiar to us that we merely 
 note them as limitations on this right. 
 
 So we may regard it as a settled rule of law that there are real 
 and effective limitations on the rights which the law denominates 
 as absolute or general ownership. They grow out of two legal 
 principles: that the public safety is the supreme law, and that 
 every one must so use his own as not to interfere with the just 
 rights of others. We may, therefore, define general ownership of 
 a thing as : the right to exclusive dominion over it and to the ex- 
 elusive possession, use, and enjoyment of it and the power, of 
 changing or disposing of it, subject only to the rights of the pub- 
 lic in the thing and to control of the owner in its use and dis- 
 position as reserved in the Constitution and Law. 
 
 Special ownership. — Special ownership is some interest or es- 
 tate in a thing existing in one not the general owner, by which he 
 is legally entitled for a limited time and to a limited extent, and 
 for limited purposes, to exercise dominion or rights of ownership 
 over it. 
 
 This special property is some interest or estate carved out of 
 or separated from the general ownership, either by act of the 
 parties or by operation of law. The following are illustrations of 
 special ownership : 
 
 1. Some title or estate less than absolute, as the hiring of a 
 chattel or the leasing of land. 
 
 2. A legal right to possession, coupled with some duty concern- 
 ing the thing, as a common carrier having freight in his posses- 
 sion, or an officer holding property under legal process. 
 
 3. Simple prior possession, as by finder of lost property, or by 
 a trespasser as against all persons except the owner. 
 
 4. Some pledge or encumbrance of the property, as a deposit of 
 note as collateral security, or a mortgage on real estate. 
 
 In these and all other instances the rights and liabilities of the 
 special owner depend on the facts of the case. Usually these 
 rights grow out of or result from contract with the general owner, 
 in which cases the rights of the parties depend on the contract 
 construed and interpreted by law. Sometimes they grow up by 
 operation of law, as in case of administration and receivership, 
 etc. In all cases the rights of the parties are such as the law cre- 
 ating the estate provides. 
 
 Ownership is acquired (1) by discovery, (2) by conquest,
 
 218 AMERICAN ELEMENTARY LAW. 
 
 (3) by production, (4) by increase, and (5) by legal succession 
 to the rights of another, as by purchase, gift, inheritance, pre- 
 scription, etc. 
 
 Practically anything may, under proper conditions, become the 
 subject of man's dominion and legal right. The exceptions us- 
 ually given are human beings, light, air, and water. In a general 
 way, these are correct, but not literally so. The law does recog- 
 nize ownership, under special circumstances, in water, air, and 
 light. These we will consider later. 
 
 The subjects of ownership are usually divided into real and 
 personal property, or into land and chattels. The lines of sepa- 
 ration are not always clearly drawn, and it is frequently difficult 
 to determine in which class a given estate or thing falls. This 
 classification involves both the nature of the thing owned and the 
 nature of the estate or interest held in it. The distinguishing 
 characteristics of real property are, as to the thing owned, per- 
 manency and immobility, and as to estate inheritability and in- 
 definite duration not shorter than one life. All property and es- 
 tates which are not real are personal. Everything which may be 
 owned, and which does not come within the meaning of real es- 
 tate, is personalty. We will consider the general subject of prop- 
 erty more at length hereafter. 
 
 RIGHTS IN PERSONS. 
 
 This is not the usual method of classifying the kind of rights 
 now under consideration. It, however, seems the simplest and 
 most natural. 
 
 Some separate classification is necessary to distinguish these 
 from rights inhering in one's own person, rights in things, and 
 rights against persons, as heretofore discussed. 
 
 These rights consist in the legally protected privileges, claims, 
 and interests which one person has in another. They always re- 
 sult from some special relation existing between the person having 
 the right and the one as to whom the right exists. 
 
 This special relation may be dependent on contract between the 
 parties, or it may be independent of contract. These privileges 
 and interests differ materially from property, in the sense we use 
 that term regarding things. Under our law, a person is not a 
 subject of ownership. Nor can one acquire over another that
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 219 
 
 species of dominion which the law denominates ownership, but 
 still he may have legal rights of a different kind, resembling that 
 in some respects. 
 
 The most important of these rights result from the relations 
 which are usually spoken of as domestic, viz. : husband and wife, 
 parent and child, master and servant. 
 
 The husband has certain well established rights regarding the 
 person, services, society, and affections of his wife, and any one 
 violating any one of these will be subject to suit therefor. So the 
 wife has similar rights though not to the same extent, perhaps, 
 with regard to the husband. It is well settled that the parent is 
 entitled to the services of the child, and that the child is entitled 
 to maintenance and support from the parent. This last, however, 
 is a right which is not directly enforceable. So the master is en- 
 titled to the services of the servant, and any person who, by direct 
 and unlawful act, prevents his rendering such service is respon- 
 sible for damages. 
 
 Possibly the most clearly defined and strikingly illustrated in- 
 stance of the rights which one person has in another is furnished 
 by the statutory provision for compensating certain persons for 
 injuries sustained by them by the wrongful killing of another. 
 While the deceased person lived, these other parties sustained to 
 him such relations as to make it, in most instances, his legal duty, 
 and in all instances his moral duty, to aid and serve them to some 
 extent. This service he may not render, but if the relationship is 
 such as to make it the legal duty to render it, or if the duty be a 
 moral one, and there be proof of actual recognition and observ- 
 ance of the duty by the deceased, the statute recognizes this fact, 
 and allows compensation to the designated parties for what they 
 have lost in the death of the relative. This compensation is not 
 for the injury sustained by the dead person, nor for the mental 
 pain or suffering of the living, but for the pecuniary loss they 
 have sustained by reason of the death of the other party. 
 
 These are purely statutory rights, and no one is entitled to 
 them except those mentioned in the statute, and no one is re- 
 sponsible except those made so by the statute. The liability only 
 arises when the killing occurs in the manner set out by the stat- 
 ute. In other words, the rights are purely statutory, and the 
 statutes are strictly construed.
 
 220 AMERICAN ELEMENTARY LAW. 
 
 REMEDIAL RIGHTS. 
 
 These rights are of two kinds : 
 
 (1) Such as are recognized by law as existing in individuals, 
 to be exercised by them, usually known as the right of self-help 
 or self-defense, and 
 
 (2) Those created by law, consisting in the right to compensa- 
 tion, through governmental agencies, for wrongs already com- 
 mitted, and the right, through such agencies, to prevent the com- 
 mission of threatened and imminent injury. 
 
 In the state of nature which preceded law, whatever remedy 
 one had depended on his capacity to care for himself. He de- 
 termined what his rights were, and upheld them with the strong 
 hand, as far as he was able. With the coming of government 
 there necessarily came limitations upon the individual. The 
 extent and nature of these limitations differ in different govern- 
 ments, and in the same governments at different times. As these 
 limitations on self-determination of right and self-execution of 
 remedy are established by law, the law itself, as a compensation, 
 affords protection to such of the claims theretofore asserted by 
 the individual as it deems proper to recognize and perpetuate. 
 Sometimes this protection is effected by recognizing in the indi- 
 vidual the privilege of preventing or suppressing the threatened 
 wrong, but usually by announcing its recognition of the right 
 and affixing certain public penalties or private remedies for its 
 violation, aud establishing tribunals to act for it in investigating 
 alleged violations of such rights, and applying the penalty or 
 remedy as the law and the facts may require. This gives us our 
 two classes of remedies, those applied by the individual in his 
 own behalf, and those applied by the law through its duly au- 
 thorized representatives. 
 
 Self-Hebp. — The first of these classes is small in number, and 
 rarely, if ever, extends to redress for injuries already sustained. 
 They usually consist in the privilege of defending one's self and 
 members of his family, or even other parties, from some imme- 
 diate and serious bodily harm, sought to be inflicted by another. 
 In some instances, the rule is enlarged so as to include defense 
 of the rightful possession of property. The general rules gov- 
 erning this subject are : 
 
 (1) The injury sought to be prevented must be unlawful and 
 substantial in its nature.
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 221 
 
 (2) It must threaten the person of the one sought to be de- 
 fended, or property in actual possession of the person exercising 
 the privilege. 
 
 (3) It must be real danger, or the circumstances, as they rea- 
 sonably atppear to the party acting, must be such as to give a 
 reasonable appearance of danger. 
 
 (4) The danger must be immediate and present, and not pros- 
 pective or future. 
 
 (5) No more force must be used than is reasonably sufficient 
 to prevent the threatened wrong. 
 
 Unless these facts concur, the remedy by self-help is not recog- 
 nized. 
 
 Remedy Through Governmental Agencies. — The second class of 
 remedies, those afforded through governmental agencies, are 
 much more numerous. The instrumentalities through which they 
 are usually applied are the courts. Ordinarily, the law says' cer- 
 tain acts, violative of the rights of others, must not be done, or 
 that certain acts conducive to the good of others must be done, 
 and provides a penalty, or means of redress, for a violation of 
 the rule of conduct thus created, rather than agencies through 
 which to see that the rule is obeyed. Usually this remedy pro- 
 vided by the law is compensation in money for the injury or 
 damage sustained. 
 
 In a few instances, the remedies are not compensatory, but pre- 
 ventive, as injunctions forbidding the doing of threatened wrongs, 
 the abatement of nuisances, compelling persons to give peace 
 bonds, etc. When the remedy is compensatory, the law deter- 
 mines the elements of damage to be taken into account for the 
 violation of every right, and gives rules, as accurate as the nature 
 of the injury will permit, by which to estimate or measure in 
 money the amount of such damage, and allows to the injured 
 party as compensation for his injury the amount thus ascertained. 
 In some cases of extreme atrocity, other damages, called punitive 
 or exemplary, are allowed, by way of example in addition to the 
 amount estimated for compensation, but these cases are rare. 
 
 It is frequently said that there is no legal right without a legal 
 remedy, and this is a fairly accurate statement. 
 
 As the application of remedies is the almost universal way of 
 protecting legal rights, the relation between the two is exceed- 
 ingly close. Yet it must be observed that the remedy is not the
 
 222 AMERICAN ELEMENTARY LAW. 
 
 right; it is only the means by which the right is protected and 
 practically made available. The remedy by which the right is 
 protected may be taken away and another substituted in its stead 
 without destroying the right, provided the substituted remedy be 
 substantially as effective as the original one ; but any change re- 
 sulting in appreciable lessening of the remedy would work a cor- 
 responding depreciation in the right. Such changes seem to be 
 within the power of the State legislature as to rights not depend- 
 ing on contract, as there is nothing in the Federal Constitution 
 on the subject. The clause denying to the States the power to 
 pass laws impairing the obligation of contracts, however, pre- 
 vents them from taking away all remedy for breach of contract, 
 or so changing the remedy as to destroy its practical efficiency. 
 
 Summing up, we may say that the following things are essen- 
 tial to the existence of a remedial right of this second kind : 
 
 (1) A right in one or more persons recognized and protected 
 by law. 
 
 (2) A violation of this right by a wrongful act or omission of 
 one or more persons, accomplished or imminent. 
 
 (3) Injury, actual or presumed by law, resulting to the per- 
 son or persons having the right, directly from its violation. 
 
 The injury may be threatened, if imminent and practically 
 sure to follow the wrong, or may be accomplished, having already 
 resulted from the wrong, or may, in case of continuing wrongs, 
 be both accomplished and prospective. 
 
 Effect of Locality on Remedial Rights. 
 
 Crimes. — As crimes are offenses against the positive law en- 
 acted for the benefit and protection of the sovereign, and as the 
 power of the sovereign is limited by the territorial boundaries 
 of the country in which it exists, it would seem to be logical and 
 fundamental that punishment could only be inflicted for crime 
 committed in the country in which the criminal law was enacted 
 and in force; we do find this very largely the case. A second 
 thought, however, will show that some acts or omissions done or 
 suffered outside the State may very seriously affect its welfare 
 and security. Suppose one person stands near a State line and 
 maliciously shoots another who is in another State. Is he to be 
 unpunished? Is the sovereign on whose soil he stood powerless 
 because no wounding or killing occurred within its territory, and
 
 LEGAL RIGHTS AND THEIR CLASSIFICATION. 223 
 
 is the other without jurisdiction because, at the time the wrong- 
 ful act was done by him, he was not on soil belonging to it? 
 Whatever may be said about the logic of these propositions, the 
 .'aw answers them both in the negative, and holds that the of- 
 fender is subject to punishment in either jurisdiction if it have 
 a criminal law covering the case. And so in a great many other 
 cases. Thus we find that the criminal laws of the different 
 States make provision for the punishment of a number of acts 
 and omissions committed outside the State, but which directly 
 affect the peace and welfare of the commonwealth. 
 
 Torts. — As a tort is a violation of duty imposed by law, the 
 same limitations would seem to apply to them as to crimes, and 
 we will find this true, to a great extent. This is, however, much 
 modified by the principles of comity or good will between gov- 
 ernments, and under them many laws imposing duties are given 
 more or less affect beyond the territorial limits of the govern- 
 ment enacting them. 
 
 With respect to the place of giving redress, wrongs not in- 
 volving breach of contract are divided into two classes: Local 
 and Transitory. 
 
 A local wrong is one which can only be done at one place. 
 
 A transitory wrong is one that might have been done anywhere. 
 
 Thus, land is immovable, consequently injury to any particu- 
 lar parcel of land can be done at only one place, viz. : where the 
 land is situated. 
 
 Personal property may change its location, and is subject to be 
 injured wherever it may be ; hence, injuries to it are deemed tran- 
 sitory. It is true any given injury must have occurred at some 
 one place, still, on account of the movable nature of the property 
 and its liability to injury in different places, the law looks upon 
 the injury as transitory. 
 
 The rule is that local wrongs can only be redressed by the gov- 
 ernment in whose territory the wrong is committed ; transitory 
 wrongs may often be redressed wherever the wrong-doer may be. 
 
 Transitory wrongs committed in one government and sought 
 to be redressed in another may be divided into four general 
 classes, as follows: 
 
 (1) Those in which the right claimed to have been violated is 
 not recognized and no remedy is given in the country where the
 
 224 AMERICAN ELEMENTARY LAW. 
 
 facts occurred, but in which the right claimed to have been vio- 
 lated is recognized and a remedy is provided in the country where 
 the suit is brought. 
 
 (2) Those in which right and remedy both exist where the 
 facts occurred, but neither where suit is brought. 
 
 (3) Those in which the right is the same in both places, but 
 materially different remedies are provided. 
 
 (4) Those in which the right and remedy are substantially the 
 same in both places; in this class the distinction must be made 
 between cases arising under the common law and those arising 
 under statute. 
 
 In cases one, two and three no redress is given. 
 
 Class four requires more careful consideration. The American 
 courts presume ordinarily. that the common law is in force every- 
 where, unless the contrary is pleaded and proved. If, therefore, 
 the matter complained of be a tort at common law redress can be 
 had. If the wrong is not a tort at common law, but is under a 
 statute in force where the act was done which is substantially the 
 same as the statute on the subject in the state where suit is 
 brought, then redress may be had, but the. existence and terms 
 of the statute where the act was done must be pleaded and proved 
 by the person to be benefited thereby. If there is any substantial 
 difference between the statute where the act was done and the 
 statute where the suit is pending, this, under the later cases, 
 seems to defeat the right to the suit. 
 
 Contract. 
 
 As contract rights and duties grow out of the acts of the par- 
 ties thereto, and not out of direct act of the sovereign, they are 
 regarded as transitory, and go with the person into whatever 
 jurisdiction he may be. So if the agreement is valid in the coun- 
 try where it was made usually it will be enforced wherever the 
 parties may be found. However, it must not be contrary to the 
 criminal law or public policy of the place where it is sought to be 
 enforced.
 
 CHAPTER IX. 
 
 SPECIAL KINDS OP CONDUCT AFFECTING LEGAL RIGHTS AND DUTIES. 
 
 In our consideration of legal rights, we have found that some 
 of them are inherent in man as an individual, and would exist 
 in him if there were but one man. Others are not so inherent, 
 but pertain to him only in connection with and in relation to 
 other persons and things, and that the relations out of which 
 these grow differ. Some are social relations and some govern- 
 mental; and of each of these there are numerous subdivisions. 
 It is also apparent that many of these relations are concurrent, 
 and that the same individual may, and in practical life really 
 must, sustain a great many of these relations at the same time, 
 and so will have many legal rights and owe many legal duties 
 differing in kind and consequences, at the same time. It is also 
 apparent that life and its various relations are constantly chang- 
 ing, and that these changes are individual as well as collective, 
 and hence each person 'has different legal rights and duties at 
 different times. 
 
 These changes in legal rights and duties involve, first a change 
 of fact and second the law's recognition of this change in fact as 
 sufficient to work a change in legal right and duty; that is, if a 
 person at a given time has certain fixed legal rights and duties 
 and some new fact comes into his life, this new fact may or may 
 not change some one or several of his legal rights or duties. This 
 will depend upon the law 's recognition of the fact as sufficient to 
 have this effect, or its failure so to recognize it. 
 
 Suppose A owes B one thousand dollars, which is due. Here 
 B has the legal right to demand and receive from A that much 
 money, and A owes the legal duty to pay it. The legal relation 
 of debtor and creditor exists between the two. A pays B. This 
 fact is recognized by the law as destroying B's right to demand 
 and receive the money and A's duty to pay it. It completely 
 ends the relations of the parties as to that debt, B no longer 
 being creditor and A no longer being debtor. But suppose that, 
 16
 
 226 AMERICAN ELEMENTARY LAW. 
 
 instead of paying B, A should ask of him an extension of time 
 of payment, and B, without any consideration for so doing, 
 should tell A he could have an additional six months in which to 
 pay. This would not in any way affect their legal relations, be- 
 cause the law does not recognize such a promise as valid, and will 
 not undertake to enforce it. Having no consideration, and being 
 executory, the law will pay no attention to it, and B could sue A 
 the next day and recover judgment. The difference is this: in 
 the first case, A and B have done certain things which the law 
 recognizes as sufficient to change their legal rights and duties. 
 In the second, they had done certain things which the law does 
 not recognize as sufficient for that purpose. Before we are com- 
 petent to judge of the legal rights and duties of any person at 
 any time we must have some knowledge of the kind and quality 
 of conduct which is recognized in law as sufficient to create, 
 modify or destroy such rights or duties. 
 
 The rights which are known as personal are not created by 
 conduct. They are inherent in human personality and come into 
 being with life. They may, however, be modified or destroyed by 
 conduct. All other rights are, however, dependent upon conduct 
 for their existence, and so may be and are created as well as 
 modified and destroyed by it. The questions necessarily arise: 
 What lands of conduct does the law recognize as sufficient to mod- 
 ify or destroy absolute rights, and to create, modify, or destroy 
 others? Detailed answers would cover the whole body of Civil 
 and Criminal Law. We may, however, get fairly accurate gen- 
 eral conceptions, which will be very helpful as foundation or 
 basic doctrines, out of which, in their various combinations, all 
 the detailed rules of law proceed. 
 
 CONDUCT VIOLATIVE OP CRIMINAL LAW. 
 
 Rights of individuals may be lost or modified by conduct vio- 
 lative of criminal law. Such violation may result in loss of 
 property rights, as when the penalty is a pecuniary fine; or loss 
 of freedom of action, as when the punishment is imprisonment; 
 or even in loss of life as when the crime is so heinous as to re- 
 quire the death penalty. The rules regulating conduct which 
 leads to such result constitute the Criminal Law, in all of its 
 minuteness. In some States these rules are embraced in common
 
 SPECIAL KINDS OP CONDUCT. 227 
 
 or unwritten law. In the Federal Government and in a number 
 of the States, the entire Criminal Law is set out in statutory en- 
 actments, and no act or omission is punishable as a crime unless 
 it be expressly so provided in the acts of Congress, on the one 
 hand, or of the State legislature on the other. It would not be 
 profitable to take up these Criminal Law rules at this time. 
 
 CONDUCT AFFECTING PRr/ATE RIGHTS. 
 
 Passing to conduct affecting the rights of individuals as be- 
 tween or among themselves we find it impossible of comprehen- 
 sive and accurate classification. There are, however, special 
 kinds of conduct very frequent among the activities of life which 
 may be studied profitably though not with the exactitude of 
 scientific classification. 
 
 Some of these kinds of conduct we will present in the following 
 order : 
 
 (1) Agreement resulting in contract, 
 
 (2) Agreement not resulting in contract, 
 
 (3) Conduct not in reality involving- agreement yet dealt with 
 as contract, 
 
 (4) Negligence, 
 
 (5) Fraud, 
 
 (6) Estoppel, 
 
 (7) License, 
 
 (8) Waiver, 
 
 (9) Laches, 
 
 (10) Limitation, 
 
 (11) Notice, 
 
 (12) Death. 
 
 Agreements Resulting in Contract, 
 
 Agreements having the characteristics recognized by law as 
 giving them validity are the most usual and simple means by 
 which legal rights and duties are created, modified, and termin- 
 ated. Such agreements are called contracts. We have also found 
 that the essentials of contract are (1) Actual meeting of the minds 
 of the parties, including both understanding and will, (2) Le- 
 gally competent parties, (3) Legality of purpose, (4) Consid- 
 eration, and (5) Proper form.
 
 228 AMERICAN ELEMENTARY LAW. 
 
 Contracts are divided into several different classes. The most 
 important of these for our present purpose are into executory 
 and executed contracts and into express and implied contracts. 
 
 Executory contracts. — There is difference of opinion as to the 
 proper distinction between executory and executed contracts. 
 There is high authority, holding that an executory contract is one 
 of which no term has been performed by either party and that 
 performance by either party, makes the contract executed, though 
 it be still unperformed by the other. The simplest line of sep- 
 aration is to regard all contracts as executory so long as one or 
 more of the terms of the agreement consist of unfulfilled prom- 
 ises and we will use the words in this sense. Sometimes these 
 unfulfilled promises are on both sides ; that is, each party to the 
 agreement may have undertaken some one or more acts or for- 
 bearances for the advantage of the other, and all or some one of 
 these undertakings on both sides may still be unperformed. Such 
 a contract would be executory on both sides, because each would 
 still be bound or obliged to do something in fulfillment of the 
 agreement. Such a contract is bilaterally executory. Sometimes 
 the unfulfilled promises are only on one side; that is, one party 
 has done all he has undertaken to do, but the other has not, and 
 so still rests under legal obligations to fulfill his part. Such a 
 contract is unilaterally executory. 
 
 Executory contracts, whether unperformed by one or both, 
 are, as to the parties, who have not performed subsisting prom- 
 ises, which are taken into account and enforced by law. 
 
 Executed Contracts. 
 
 Executed contracts are those which have been fully performed 
 on both sides, so that nothing remains to be done under them. 
 It is frequently held that full execution discharges the con- 
 tract by fulfillment, and so destroys it. This is true where the 
 agreement is regarded simply as a basis of legal obligation ; but 
 when the agreement is looked upon, as we are now doing, as a 
 means of creating, modifying or destroying legal rights, it can 
 not be dismissed from legal consideration; for it, though per- 
 formed as a promise, is still the basis of present subsisting legal 
 rights. 
 
 To illustrate: A promises to sell to B a designated thing for 
 one thousand dollars, the thing to be delivered in thirty days,
 
 SPECIAL KINDS OP CONDUCT. 229 
 
 and the money to be paid in sixty days. Before the first thirty 
 days expires the agreement is bilaterally executory, neither party 
 having performed. "When the thirtieth day comes and A delivers 
 the thing, he performs or executes his part, and for the next 
 thirty days the contract, from A's point of view, is unilaterally 
 executed; from B's point of view it is unilaterally executory. 
 The sixty days elapse, and B pays. The contract becomes bilater- 
 ally executed. Nothing more is to be done under it by either 
 party, and in that sense it has become a thing of the past, functus 
 officio. 
 
 But the agreement had a wider scope than simply binding each 
 and both of the parties to do something. Its real design was to 
 change the ownership of the thing which was sold. Before the 
 contract it was A 's ; by the contract, it became B 's. This owner- 
 ship is a continuing condition, or relation, and B 's estate, having 
 grown out of and been secured by the contract, is a continuing 
 right; and the contract still exists as the basis of this right. 
 If A should become unmindful of his agreement and sue B for the 
 thing, B would interpose A's contract of sale as an insurmount- 
 able barrier between A and the reclaiming of the thing. So, as a 
 muniment of title and basis of right, the executed contract still 
 lives. The continuing nature of the executed contract to sell is 
 readily apparent, as a basis of this right. The same is true when 
 considered as a prevention of or defense against liability. Sup- 
 pose, in the case put, B should afterward want his thousand dol- 
 lars back, and sue A for it, saying the money was his and he let 
 A have it, and now he was entitled to have it repaid. A could 
 reply to him : ' ' You let me have the thousand dollars at the time 
 claimed, but you did so in the discharge of your liability under 
 your agreement, and that agreement entered into your conduct 
 in paying and into mine in receiving the money, and in this sense 
 and for this purpose it still lives and must be recognized. You 
 can not get bach your money. " So we must fix in our minds that 
 whatever words and forms of expression we use, contracts do not 
 drop out of the business life of the world, or of the law's cogni- 
 zance, simply because they have been fully performed by both 
 parties. 
 
 Express Contracts. — Express contracts are those in which all 
 the terms are definitely understood and expressly stated in words.
 
 230 AMERICAN ELEMENTARY LAW. 
 
 They may be either written or oral. In such agreements nothing 
 is left for presumption or implication and the intent of the par- 
 ties and their consequent rights and obligations are determined 
 by the language used between them. 
 
 Implied Contracts. — These are dealt with as of two kinds, con- 
 tracts implied in fact and contracts implied in law. 
 
 Contracts Implied in Fact. — Contracts implied in fact are those 
 in. which the minds of the parties have really met though some 
 of the terms of the agreement have not been expressed in words 
 but are clearly indicated by other conduct of the parties, inter- 
 preted by the customs and habits of the parties and of the com- 
 munity in which they live. In such cases the terms of the agree- 
 ment not expressed in words are gathered or implied from all the 
 facts and circumstances of the case. These are really the only 
 true implied contracts. 
 
 The distinction between the two, express and implied contracts, 
 may be made clearer by illustration. Thus, if A goes to B's store 
 and says "I wish to buy this sack of flour," pointing out a par- 
 ticular sack, "and will give you two dollars for it tomorrow if 
 you will send it to my house this morning," and B says, "All 
 right. I will send the flour." This is an express oral contract. 
 Its parties, subject matter, and terms are all shown conclusively 
 by the language used. There is nothing left to be added by 
 implication. 
 
 If B owns a store and A is in the habit of buying goods from 
 him on a credit and A goes to the store and says to B "Send a 
 sack of good flour to my house and charge it to me," and B says 
 "All right, I will do so." Clearly there is an agreement here. 
 A portion of it is expressed in words. A has indicated his desire 
 and offer to buy from B a sack of good flour to be delivered at 
 A's house within a reasonable time, and to pay to B its fair 
 market value according to the course of business dealing between 
 them. B has accepted A's offer and indicated his purpose to sell 
 A the sack of flour on the terms proposed. Still the agreement 
 did not in language indicate the amount that A was to pay or 
 when payment was to be made. As to these two items the agree- 
 ment is indefinite, but it is perfectly plain that A intended to 
 pay something for the flour at some time. The law permits a 
 jury to interpret the conduct of the parties reasonably, according
 
 SPECIAL KINDS OP CONDUCT. 231 
 
 to the customs and course of dealing between them and make 
 these indefinite terms to the contract certain. Still it cannot 
 be designated an express contract and is known as an implied 
 contract. Speaking a little more accurately, it is a contract 
 implied as a fact from the conduct of the parties. "When the 
 terms are thus implied as facts the legal effect of the contract is 
 just the same as if all its terms had been set out in the most ac- 
 curate language. 
 
 Contracts Implied in Law. — There is another class of so-called 
 implied contracts, usually designated as contracts implied in law 
 or quasi-contracts. These arise from states of fact in which it 
 is apparent that no agreement, definite or indefinite was entered 
 into between the parties but which are of such nature that com- 
 mon honesty requires that the parties should be compelled to 
 adjust their rights and duties just as if a contract had existed 
 between them. They really are not contracts at all, but are 
 states of fact to which the law arbitrarily applies the fiction of 
 agreement and compels settlement between the parties as if they 
 had agreed to do what the law conclusively finds they should 
 have agreed to do. 
 
 Agreements Not Resulting in Contract. 
 
 The next question for consideration is : Are agreements, lack- 
 ing some one or more of the characteristics essential to contracts, 
 ever sufficient to create, modify, or terminate legal rights? If we 
 consider agreements strictly and simply as' such, they are not. 
 No agreement, not constituting contract, and entirely unexecuted 
 on both sides, is ever enforcible in law or equity. 
 
 "While this is true, still such agreement, aided by other facts, 
 does frequently create, change, or destroy rights. We will con- 
 sider, briefly and in order, agreements lacking one of the essential 
 elements of a contract, and ascertain, if we can, the circumstances 
 under which they have the effect indicated, and the reason for giv- 
 ing such effect. 
 
 Agreements Lacking Competent Parties. 
 
 A perfect contract, binding alike on both parties, can not exist 
 except as between two or more parties, all of whom are capable, in 
 law, of assuming obligations. This idea is frequently expressed 
 by saying that contracts must be mutual, and that an undertaking
 
 232 AMERICAN ELEMENTARY LAW. 
 
 which seeks to bind only one of the parties and leaves the other 
 unbound is not binding upon either. This is the general rule. 
 Agreements, otherwise good, are not usually void because one 
 party is under legal disability, but the capable person can be 
 compelled to comply, if the incapable one shall perform his part, 
 or tender to do so. This is true as to all classes of natural per- 
 sons. It is not true of corporations which have entered into 
 agreements which they are not authorized to make. These, so 
 long as executory on both sides, are void. 
 
 If the incapacity be infancy, and if the contract be for neces- 
 saries, both are bound, but if the contract is not for necessaries 
 the adult is bound, though the infant may repudiate it at the 
 time and under such rules as to restitution as the law prescribes. 
 
 If the incapacity be mental unsoundness, if the contract be for 
 necessaries, both are bound. If not for necessaries, the capable 
 person is bound and also the incapable one, unless the capable one 
 knew of the mental unsoundness of the other, or he had been 
 legally adjudged unsound. In either of the latter events, the 
 contract can be repudiated by the incapable person. If the capa- 
 ble one acted in good faith, restitution must be made, so far as 
 may be. 
 
 If the incapacity be coverture, the contract is binding upon 
 the capable party; and, if executed and evidenced in due form of 
 law, it is binding upon the married woman also. If it be execu- 
 tory as to the woman, she can not be compelled to perform, unless 
 it be for necessaries for herself or children, or for the benefit of 
 her separate estate. 
 
 If the contract be with a corporation, and is simply unauthor- 
 ized, and has been performed by either party, the other can com- 
 pel performance or restitution. This last doctrine is an im- 
 portant one, and needs some elucidation. Corporations are au- 
 thorized only to do the acts and transact the busincs covered by 
 their charters. If they enter into an agreement to do an act not 
 embraced in their charter, this agreement, so long as executory 
 on both sides, is absolutely nonenforcible. If it is performed by 
 either the corporation or the other party, the one so performing 
 can compel performance by the other; that is, the unauthorized 
 agreement is validated by unilateral performance. This is the
 
 SPECIAL KINDS OF CONDUCT. 233 
 
 rule fixed by the weight of authority, including the Supreme 
 Courts of the United States and most, if not all, of the States. 
 
 The peculiarity is not in the rule or its results, but in the 
 reason given for it. The prevailing custom is to say that the one 
 who has received the benefits, under the agreement, is estopped 
 to set up the want of legal power in its execution. The standard 
 definitions of estoppel all include the idea of deception. He who 
 has deceived another to his prejudice can not be heard to con- 
 trovert the truth of his own former statement, is its basic prin- 
 ciple. In the class of cases now under consideration, the element 
 of deception is almost always lacking. The courts pay little, if 
 any attention to its presence or absence, but enforce the agree- 
 ments, or require restitution, as well in those cases in which both 
 parties have been equally cognizant or equally ignorant of the 
 facts as in those in which there has been deception. So, in 
 reality, they are not cases of estoppel at all, but are illustrations, 
 pure and simple, of the law's requirement of common honesty 
 in business dealings, where there is no element of affirmative 
 illegality in the transaction. 
 
 Recapitulating, we find that a fully executed agreement be- 
 tween a capable person on one side and an incapable one on the 
 other is good, as against the capable person. It is good as against 
 the incapable person, if she be a married woman and the agree- 
 ment is executed in the forms of law. If the incapable be an 
 infant, or person of unsound mind and the agreement be for 
 necessaries, it is good. If it be not for necessaries, the infant 
 can repudiate it, in a reasonable time after his majority, by mak- 
 ing restitution of such of the proceeds as he had when he attained 
 his majority. If it be not for necessaries, the person of unsound 
 mind can repudiate it by making restitution, as far as in his 
 power, if the other party knew of the mental unsoundness and 
 acted in good faith. If he did not act in good faith, complete 
 resi oration is not required. If the unsoundness was not known 
 to the capable, and had nol been judicially declared, the agree- 
 ment will be enforced. If the party be a corporation, and the 
 agreemenl simply unauthorized, its execution vests the rights of 
 the parties, and neither can avoid it. 
 
 If the agreemenl is between natural persons, and is executory, 
 it is binding upon the capable person, but not on the incapable.
 
 234 AMERICAN ELEMENTARY LAW. 
 
 If it has been performed by the incapable party, he can compel 
 performance by the capable one, or he may repudiate it, under 
 the rules as to restitution given as above. If it has been per- 
 formed by the capable, he can not repudiate it nor compel resti- 
 tution, under the doctrines stated above. 
 
 If the agreement is with an artificial person, and beyond its 
 powers, neither party is bound, if entirely executory ; but if fully 
 executed, both are bound. If unilaterally executed, its enforce- 
 ment can be compelled by the party performing, subject to the 
 right of the other to restore what has been received under the 
 agreement. These seem to be the rules as to change of rights and 
 assumption of liability by agreement which falls short of per- 
 fect contract, because of lack of legally competent parties. 
 
 Agreements Lacking Consideration. — These agreements should 
 be considered under three heads: (1) Ordinary common law 
 agreements not under seal, (2) Common law agreements under 
 seal, and (3) Agreements of the Law Merchant. 
 
 (1) It is a thoroughly established doctrine that an unsealed, 
 executory Common Law agreement is not enforceable unless it has 
 legal consideration. So long, therefore, as such an agreement 
 remains executory it cannot be the basis of legal right or liability. ,- 
 It does not follow, however, that when such agreement has been 
 voluntarily performed it does not affect legal rights. Just the 
 opposite is true. Such an agreement, fully executed, will vest 
 legal rights, although but for the voluntary performance it would 
 have been without legal effect. 
 
 To illustrate : if one person promises to give a designated thing 
 to another and the latter agrees to receive it, this agreement, 
 while it remains executory is unenforceable at law or in equity 
 because there is no consideration supporting it. But, if in pur- 
 suance of the promise the donor delivers the thing to the donee, 
 the title passes to the donee and the donor cannot reclaim it. 
 Stating it tersely, a promise to give is not enforceable ; a consum- 
 mated gift passes title. Under some circumstances third persons 
 who have just debts against the donor may follow the gift into 
 the hands of the donee and subject it to the payment of the 
 donor 's debts, but as betw T een donor and donee the title has passed 
 as irrevocably as it would upon the sale of the article.
 
 SPECIAL KINDS OF CONDUCT. 235 
 
 One of the most interesting classes of agreements unsupported 
 by consideration comes under the general head of license. Li- 
 cense, in its broad sense, is very comprehensive, covering and 
 giving legal character to that large part of human activity, lying 
 between conduct in the exercise of the legal right of the actor on 
 the one hand, and conduct violative of the legal rights of other 
 persons on the other. In this broad sense the subject does 
 not come within our present topic. 
 
 We are here concerned only with those licenses which arise by 
 agreement with the licensor, unsupported by any legal con- 
 sideration from the licensee. Such licenses are perfect examples 
 of the kind of agreements now under discussion and follow the 
 general rules of law governing them. We, therefore, find that 
 an unperformed or executory license is without legal force as 
 to the future and may be revoked at the will of the licensor, and 
 further, that a license which has been fully performed, has en- 
 tered as a fact into the lives and relations of the licensor and 
 licensee, and has fixed permanently the legal nature of the acts 
 performed under it, and cannot be disregarded by the licensor or 
 by the courts in determining the legality of such action. 
 
 If the license was designed to extend over a series of acts or a 
 period of time, and is unsupported bj^ a consideration, but has 
 been acted on to some extent or for a portion of the contemplated 
 time but not fully, it, and the rights of parties under it, are sub- 
 ject to both the rules of law just stated ; that is, such license is 
 subject to revocation at the will of the licensor without creating 
 any liability on his part, but it will nevertheless be a complete 
 defense for any action taken by the licensee thereunder, before 
 revocation. 
 
 (2) Common Law agreements under seal are said to import 
 consideration and be enforceable. The form of the agreement 
 gives it higher dignity and it will be enforced by the courts even 
 though it is an executory promise. Whether this validity is 
 conclusive, and lack or failure of consideration can not be plead 
 or proved againsl such an instrument or is merely prima facie, 
 permitting the agreement to be avoided by proof of lack or fail- 
 ure of consideration, in the earlier periods of the law, is not clear. 
 The tendency of the later cases and the weight of American au-
 
 23 G AMERICAN ELEMENTARY LAW. 
 
 tliority is to the effect that the seal is only prima facie evidence 
 3f consideration and that by proper pleading and proof the agree- 
 ment can be avoided either for lack of or for failure of consider- 
 ation. In many States the doctrines regarding sealed instru- 
 ments have been abolished or modified by statute. Some of the 
 statutes bring the sealed instrument down to the level of other 
 written agreements, while others raise the unsealed instrument 
 up to parity with the sealed. 
 
 Sealed instruments which have been fully executed effectively 
 pass legal rights, whether they were originally supported by con- 
 sideration or not. 
 
 (3) There are certain kinds of contracts for the payment of 
 certain sums of money at a certain time, known as promissory 
 notes, bills of exchange, and checks which may be made payable 
 to a designated person or his order, or to bearer. These are called 
 negotiable instruments, and pass from hand to hand like money. 
 They are not Common Law contracts, but of the Law Merchant. 
 That is, the Common Law, which is a purely English product, 
 did not recognize such contracts. But the merchants of Con- 
 tinental Europe found them exceedingly useful in their business 
 enterprises, and, by their habit of dealing, introduced and used 
 them among themselves. Gradually their business convenience 
 was recognized in London and other English cities and more 
 gradually still the English law adopted, to some extent, the cus- 
 tom or law of the merchants and made it a part of the law of the 
 realm. 
 
 The Law Merchant did not regard consideration as a necessary 
 part of a contract, and in the adjustment of the two systems, a 
 compromise was made on this subject, the result of which is sub- 
 stantially this : As between the original parties to the instrument 
 and all others, except innocent purchasers for^value and without 
 notice, consideration is necessary to the validity of the promise ; 
 but the existence of consideration will be presumed, unless its 
 want or failure be shown. As between the payors of the instru- 
 ment and one purchasing it in due course of trade before its 
 maturity, paying value for it and having no notice of the ab- 
 sence of consideration, this presumption of consideration is con- 
 clusive, and the payors are not allowed to show its absence. 
 
 Agreements Defective in Form. — Ordinarily, in American law, 
 contracts, otherwise mgeting the requirements of the law, are
 
 SPECIAL KINDS OF CONDUCT. 237 
 
 valid without reference to the means by which they are evidenced. 
 That is, in the great majority of instances, the law does not pre- 
 scribe any particular methods by which the agreements of par- 
 ties shall be created or evidenced ; but any manner of manifesting 
 the agreement, whether by written or spoken words, or by con- 
 duct, is sufficient. There are, however, numerous agreements as 
 to which the law does prescribe certain formalities, namely : ex- 
 pression in written words, duly executed by the persons to be 
 bound. Most of these requirements are embraced in the enact- 
 ments known as the Statutes of Fraud. The purpose of such 
 enactments is to give certainty and permanence to such contracts, 
 and thus to guarantee to all parties to them the quiet and secure 
 enjoyment of their rights thereunder. These statutes are of 
 English origin. These English statutes are not recognized as 
 Common Law, and so are not of force in America. Desiring to 
 enjoy the benefits arising from their general provisions, the sev- 
 eral American States have enacted laws covering their main 
 features, though differing in their scope and details. 
 
 These statutes usually require all contracts for any of the 
 following purposes to be in writing: 
 
 ( 1 ) All conveyances of land, or estates in land, for longer than 
 a designated period. 
 
 (2) All undertakings by one person to answer for the debt, 
 default, or miscarriage of another. 
 
 (3) All contracts not to be performed within one year. 
 
 (4) All contracts by the representatives of the estate of a 
 deceased person, to become personally responsible for the debts of 
 the deceased. 
 
 In some States other classes of agreements such as contracts in 
 consideration of marriage and sales of goods, etc., of a designated 
 minimum value, are embraced ; but the four classes named above 
 are the ordinary and typical requirements. 
 
 We are not now considering the construction of these several 
 statutes, nor to what class of contracts they apply, but this : If it 
 be conceded that the statute does apply and has not been com- 
 plied with in a particular agreement, may such an agreement still 
 be effective to create, modify, or terminate legal rights? 
 
 In a few cases, arising under the first subdivision given above, 
 relating to conveyance of land, such an agreement does have 
 such effect. If one person shall sell to another a designated
 
 238 AMERICAN ELEMENTARY IAW. 
 
 parcel of land and put him in possession of it, or acquiesce in his 
 taking and holding possession, and the purchaser shall pay all the 
 purchase money and make improvements on the land, the agree- 
 ment to sell will be enforced and the seller be forced to make a 
 written conveyance of the property. The reason given by the 
 courts in announcing this rule is that the statute was enacted to 
 prevent the perpetration of fraud, and that to insist upon the 
 letter of the statute under the facts as set out above would be 
 to make it the instrument of its own overthrow and work a prac- 
 tical defeat of the legislative purpose in passing the law. This 
 is but another long way of saying that one must observe common 
 honesty in his dealings. I do not mean to convey the idea that 
 this principle is always, and under all circumstances, recognized 
 and enforced by the law, but that it is one of its cardinal prin- 
 ciples, and is one which, year by year, is coming to have more 
 influence both in statutory enactment and in judicial decision, 
 and that the world's progress in intelligence and moral develop- 
 ment is gradually establishing this as the standard of conduct in 
 business affairs. 
 
 There seem to be no relaxations of the statutory rules in agree- 
 ments falling under the second, third, or fourth subdivisions. 
 The only relief given as to them has been in the construction of 
 the statutes and the refusal to apply them in cases in which mani- 
 fest injustice would result, if the application could be avoided 
 I iy any fair interpretation. 
 
 Agreements Lacking Legality of Purpose. — The rule here is 
 that "from a violation of the law no cause of action can arise" 
 in behalf of the wrong-doer. This maxim, and the principle on 
 which it is founded, render unenforeible all executory agreements 
 tainted with unlawfulness of purpose in mind of both parties. 
 This is true not only when the agreement is bilaterally executory, 
 but also in cases of unilateral execution. The one who has per- 
 formed his part of the contemplated wrong can not, by reason of 
 his wrong-doing, compel the other either to go forward with the 
 agreement or to restore what he has received under it. The same 
 holds true in cases of bilateral performance. Neither party can 
 get relief against the other, because each, being a wrong-doer in 
 the very matter out of which he claims that his right has arisen, 
 has, as to enforcement or rescission of the agreement, put him-
 
 SPECIAL KINDS OF CONDUCT. 239 
 
 self without the pale of the law, and has no standing in court. 
 The law leaves both parties to such an agreement just where they 
 have put themselves, and will not interfere between them. 
 
 From this it follows, as a consequence, though not as an in- 
 tended or desired one, that such agreements, so far as executed, 
 are sufficient basis for legal rights created thereby. Take the 
 familiar example of a debtor who desires to defraud his creditors 
 and who, for such purpose, transfers property to a third person, 
 to prevent its seizure and sale for his debts. This intent to de- 
 fraud is unlawful, and both of the parties to the conveyance 
 having participated in it, neither can come into court and main- 
 tain a suit for its enforcement. Nor can the debtor, after he has 
 compromised or otherwise relieved himself of his just debts, com- 
 pel the fraudulent holder of the property to restore it to him. 
 He can maintain no suit on the fraudulent agreement either to 
 enforce it or set it aside. The title, therefore, as between the 
 parties to the fraud, remains where they placed it. Nor could a 
 third party, not affected by the fraud, dispute the title of the 
 grantee. It is no business of his how the property was acquired. 
 If, however, the creditor whom both the grantor and the grantee 
 designed to defraud should ascertain the facts, he could proceed 
 against the property for his debt, establish the fact that it was 
 sold to defraud him, and subject it to the payment of his debt, 
 The same is true of other agreements having unlawful purposes, 
 as between the parties they cannot be made the basis of litigation, 
 but the law leaves each without remedy as against the other. As 
 to third parties not included in or specially affected by the unlaw- 
 ful design, they are good, as basis of property rights. As against 
 persons sought to be injured thereby, they are inoperative. 
 
 Conduct Lacking Element of Assent and Yet Dealt with as if 
 Contract. Quasi-Contrdcts. — The condition stated in the para- 
 graph heading is an anomaly, yet it is an existing one in England 
 and those jurisdictions in which the methods of judicial procedure 
 are based upon the Common Law. There are two grand divisions 
 of the law: the first embracing the rules governing substantive 
 rights, and the second those covering remedial process or pro- 
 cedure. These necessarily act and react upon each other. As a 
 substantive right has no beneficial existence unless the law of 
 procedure gives a practical remedy for its violation, absence of
 
 240 AMERICAN ELEMENTARY LAW. 
 
 remedy is fatal to its enjoyment. In this way the substantive 
 law is limited by the law of remedy. 
 
 At an early day the remedial process of the Common Law be- 
 came fixed. There were certain established methods of procedure, 
 called forms of action. Each of these began with its appropriate 
 writ and concluded with its appropriate judgment. The form 
 of each of these writs was fixed and unchangeable. This writ 
 determined the method of procedure in the case and the nature 
 of the remedy which could be granted. If a party had a sub- 
 stantive right which, according to these forms of action, should 
 have been protected by an action of one kind and he erred in the 
 selection and attempted to establish his right in another form 
 of action, the mistake was fatal, and no remedy at all could be 
 obtained. He could not recover the remedy appropriate to his 
 right, because the fixed form of action to which he had resorted 
 did not permit ; he could not recover the remed}^ appropriate 
 to the form of action because his right did not entitle him to 
 that. 
 
 These forms of action were grouped into two classes: those 
 i .r-i nnliiK hi and those ex-delicto, between which there was a 
 great gulf fixed. In the first group were put all actions for 
 breach of contract, and in the second all for tort. The fixed 
 forms of procedure were binding upon the courts, but, fortu- 
 nately, they were not binding upon the social and business world; 
 these continued to develop and, in their development, new com- 
 binations of fact and new rights and duties necessarily arose. 
 These rights were not always adjusted between the parties, and 
 resort to the courts became essential. Under this pressure the 
 courts were constrained to do substantial justice, notwithstanding 
 the forms of action and adopted legal fictions. Instead of chang- 
 ing the rules of procedure, they would declare, as a matter of 
 law, that things were true which they, and everyone else, knew 
 were not true, and by this fiction would bring a case within a 
 given form of action, when, in reality, it did not belong there. 
 
 This was the process in the matter under consideration. Cer- 
 tain states of fact arose for which the forms of action provided 
 for breach of contract were convenient and appropriate, but they 
 could not be used because, as soon as it developed on the trial 
 that the rights of the parties were not based upon contract, the
 
 SPECIAL KINDS OF CONDUCT. 241 
 
 case would be thrown out. To obviate this the courts said: "We 
 will adopt, in advance, the legal fiction that these facts are to 
 be dealt with as if the parties had entered into certain agree- 
 ments, and the objection that they did not shall not be consid- 
 ered." This course of dealing led to the name quasi-contracts, 
 that is, facts not really constituting contract but which, by fiction 
 of law, are dealt with as if they did. We can readily forgive the 
 legal fiction and its adoption, in this instance, for the very 
 laudable purpose for which it was indulged in, viz. : jthe prompt 
 administration of practical justice. Professor Keener, in his 
 work on Quasi-Contract, says that the principle upon which the 
 whole doctrine is based is ' ' that one person should not be allowed 
 unduly to enrich himself at the expense of another." This is a 
 good statement of the rule, within the limitations put upon by it 
 by the author, and it ought ever to be enforced. However, it 
 arvims to me but a special application of the broader doctrine of 
 common honesty. 
 
 The cases dealt with as quasi-contract are so different in their 
 facts that it is difficult to generalize from them, but they all pre- 
 sent these features : One or more persons, by some course of con- 
 duct, obtain an advantage over another or others, so unjust and 
 so unconscionable as to shock the moral sense of the man of av- 
 erage judgment and conscience ; and the law, as the exponent and 
 authoritative embodiment of common judgment and conscience, 
 will not permit the transaction to stand, but compels an adjust- 
 ment of the equities between the parties in such way as may be 
 most just, under all the circumstances. 
 16
 
 CHAPTER X. 
 
 SPECIAL KINDS OF CONDUCT AFFECTING LEGAL RIGHTS AND DUTIES 
 
 (CONTD.) 
 
 NEGLIGENCE. 
 
 Negligent conduct is very important and far reaching in its 
 consequences. It is frequently quite as hurtful to another and 
 his rights to fail to observe duties due to him as to do him affirm- 
 ative injury. Failures to discharge specific duties are most fre- 
 quently dealt with under the specific heads of law regulating the 
 rights and duties involved, and are not now under consideration. 
 
 After dealing with these specified failures, as each seems to 
 warrant, declaring a great many things that must, and a great 
 many other things that must not, be done, the law admits its 
 inability to cover all kinds of objectionable conduct, or at least 
 the undesirability of attempting to do so, and says that, in ad- 
 dition to all these specific rules, the fundamental principle that 
 every person must so conduct himself and so use his own as not 
 unduly to interfere with the just rights of others, requires that 
 each person shall observe a reasonable degree of care in regu- 
 lating himself so as not to injure other persons. This reasonable 
 care being thus imposed as a legal duty, failure to observe it 
 becomes a legal wrong, which is denominated negligence. 
 
 We may, therefore, define negligence as the failure to observe 
 that degree of care for the welfare of another which the law 
 enjoins as a duty. 
 
 It must be noticed that the gist of the wrong is a failure to 
 perform duty and not the motive which prompts the failure ; that 
 is, negligence, in a legal sense, is a failure to observe a legally 
 required degree of care for the welfare of others, and not a mental 
 condition or attitude. The failure may result from inadvertence, 
 forgetfulness, misapprehension, or design; but the law does not 
 require the injured party to look into the mind of the wrong-doer 
 and determine at his, the sufferer's, peril what his, the wrong-
 
 SPECIAL KINDS OF CONDUCT. 243 
 
 doer's, mental attitude really was. That can be known, cer- 
 tainly, only to the negligent person, and to require the sufferer to 
 prejudge the fact, and determine whether the wrong proceeded 
 from forgetfulness or willfulness, and thus put him in the power 
 of his adversary, would be manifestly unjust. Therefore, the 
 law says the wrong-doer having failed to use the degree of care 
 required for the protection of his fellow, must make good to him 
 the injury he has sustained. If, in any particular case, there be 
 willful intent to injure, and this is known and can be proved, 
 it will subject the wrong-doer to larger penalties in. addition to 
 the just compensation he is required to make. 
 
 Sometimes conduct is characterized as grossly negligent. This 
 means that there is such entire absence of care as to indicate a 
 wanton and reckless disregard of the rights and interests of others. 
 In a few instances of positive written law, negligence must be 
 gross to give a cause of action ; but this is rarely, if ever, true, 
 except in cases of positive requirement of the written law. 
 
 We have defined negligence as the failure to observe that de- 
 gree of care for the welfare of another which the law requires as 
 a duty. The question necessarily arises, what degree of care is 
 thus required? The answer is obtained by resort to the law's 
 unit, or standard, of measurement, the average man ; and we find 
 that the care required is such as an ordinarily prudent person 
 would have exercised under the facts and circumstances of the 
 case. So universal has this idea become, that the ordinary defini- 
 tions of negligence are substantially one or the other of the 
 following : 
 
 Negligence is the failure to use that degree of care for another 
 which a reasonably prudent person would have used under the 
 circumstances; or, 
 
 Negligence is the doing some act, to the injury of another, 
 which a reasonably prudent person would not have done, under 
 the circumstances ; or the failure to do some act for the protection 
 of another which a reasonably prudent person would have done, 
 under the same circumstances. 
 
 In many connections, either of. these definitions is practically 
 correct, and many charges by judges to juries trying cases of this 
 kind containing one or the other have been commended. They 
 do not, however, give a correct general conception of the subject,
 
 244 AMERICAN ELEMENTARY LAW. 
 
 for the following reasons : While the average man, or man of or- 
 dinary prudence, which is the same thing in this connection, is 
 always the law's standard by which to measure conduct, still, in 
 some cases, the application of the standard to the conduct is not 
 left to be made by judicial officers in the progress of a trial, but 
 has antecedently been made and the result announced as a matter 
 of law. 
 
 Sometimes this antecedent application and annunciation of rule 
 has been made by the legislature, as in case of a railroad train 
 approaching a public road-crossing. Here the legislature has 
 determined that the average man, in control of appliances as 
 dangerous as a railroad train, when approaching a place where 
 others have equal rights with himself, would give reasonable 
 notice of his presence and intention. It therefore declares, by 
 statute, that such notice must be given by certain required sig- 
 nals, and further declares that failure to give such signals is 
 negligence. 
 
 Sometimes the antecedent application and announcement has 
 resulted from long experience and numerous litigations and 
 judicial decisions, which have become established precedents. 
 Take, for illustration, the rules governing common carriers of 
 persons. There are no statutory provisions on the subject, but 
 from time immemorial such carriers have been doing business, 
 and controversies have arisen between them and their passengers, 
 and these controversies have been decided by the courts. By 
 this process the degree of care which an ordinarily prudent per- 
 son would use as a common carrier of persons has been deduced 
 and declared, and we now have the established legal rule that 
 it is the highest degree of practicable care. So, in trying a case 
 of this kind, the judge does not charge the jury the general 
 proposition that the carrier must use such care as an ordinarily 
 prudent man would use under the circumstances ; but, recognizing 
 that the law has already determined that an ordinarily prudent 
 person, acting as a common carrier of persons, would use the de- 
 gree of care above indicated, the highest practicable, charges as 
 a matter of law, that the particular carrier whose conduct is under 
 investigation was required to use that degree of care. 
 
 These illustrations suffice to show the necessity of defining 
 negligence as failure to use legally required care, and leaving
 
 SPECIAL KINDS OF CONDUCT. 245 
 
 the degree of care in particular cases to be indicated in the 
 general doctrine of the care of the average man, or in the terms 
 of the particular rule which the law has formulated to govern 
 the particular class of cases, as the nature of the case may de- 
 termine. 
 
 FRAUD. 
 General Conception. 
 
 Fraud is a word in very general use. In ordinary parlance it 
 means deception resulting in unfair advantage to the deceiver 
 or in unfair disadvantage to the deceived. It is the deception 
 resulting in hurt that really constitutes the fraud, though the 
 word is frequently used as indicating the means by which the 
 deception is accomplished. This necessarily results in confusion. 
 It is therefore essential that we fix in mind this distinction, that 
 fraud is the deception and not the means by which the deception 
 is brought about. 
 
 Again, we must get clearly in mind that fraud is deception 
 and not the motive operating in the mind of him who brings 
 about or obtains advantage from the deception. If a person 
 makes a false material statement knowing it to be false and in- 
 tending thereby to influence another to perform some act which, 
 will be of undue advantage to the deceiver, and does so influence 
 him, the transaction is undoubtedly fraudulent. Again, if a 
 person is himself deceived as to a matter and really believes a 
 statement to be true when it is not, and so believing, makes the 
 statement to another thereby desiring to influence such other and 
 induce him to perform a certain act which is of material ad- 
 vantage to the one making the statement, and thus induces him 
 to whom the statement is made to do the act, fraud, though not 
 so readily apparent, still exists. The statement is false. It is 
 made to influence and induce action by the party to whom it 
 is made which he would not have taken but for the influence of 
 such false statement. Under its influence, he acted to his hurt, 
 and is thereby injured. There is deception as to a material point 
 influencing conduct and directly resulting in hurt. This con- 
 stitutes fraud. It is true that there was no intent to deceive 
 at the time the statement was made, no intent to obtain undue 
 advantage, but each of these results has in fact been accomplished,
 
 246 AMERICAN ELEMENTARY LAW. 
 
 and the injury to the deceived is just as great and as directly 
 traceable to the deception, as if the intent to deceive existed. 
 
 There is a marked difference in the moral nature of the con- 
 duct at the time it takes place; in the one case, at the time the 
 statement is made the man making the statement is a conscious 
 and intended deceiver designing to obtain advantage; in the 
 other case, he is himself deceived as to the facts and does not 
 design to deceive his neighbor or to profit by falsehood. It would 
 be quite unjust to regard him as intentionally dishonest at the 
 time the transaction took place. If, however, when the facts 
 become known to him, and when he is conscious that the state- 
 ment from which he has derived material advantage is false, he 
 continues to hold to this advantage and refuses to make proper 
 adjustment with the party deceived, he is equally as guilty in 
 morals, as if the intent to deceive had originally existed in his 
 mind. We may therefore conclude that he who innocently de- 
 ceives his neighbor to the latter 's hurt, and refuses to make proper 
 adjustment of the hurt when the deception becomes known to 
 him, is as morally guilty as he who primarily designed to deceive 
 in order to gain personal advantage. 
 
 This fact is not always recognized. It is much more commonly 
 accepted now than it was in the earlier stages of social and 
 ethical development. It is quite probably that among our an- 
 cestors centuries ago a very broad distinction existed between 
 the two and that the present recognition of their moral equality 
 has come about by the slow processes of general ethical develop- 
 ment. As the law is a fairly correct register of the public con- 
 science, this development in moral discernment should be clearly 
 traceable in the growth of the law. 
 
 Legal Conception. 
 
 As heretofore stated law is based upon morality limited by 
 practicability. The morality upon which any system of laws 
 rests is necessarily that of the law-maker, and in governments 
 where the law is made by the people it represents the average 
 morality of the community, limited by practical considerations. 
 From this point of view, the law represents, with fair accuracy, 
 the common conscience of the people among whom it obtains so 
 far as the rules of conduct approved by such common conscience 
 can be practically enforced through governmental agencies.
 
 SPECIAL KINDS OF CONDUCT. 247 
 
 Common Law Conception. — The general principles just an- 
 nounced and their operation are especially apparent in the rules of 
 law and of equity as to fraud. In the beginnings of our juris- 
 prudence when the Common Law was in its formative state, the 
 English people recognized that it was morally wrong to knowingly 
 deceive another to his material hurt. Hence the Common Law 
 has always recognized known deception as to a material fact re- 
 sulting directly in damage, as a legal wrong, and has always given 
 a remedy therefor. 
 
 This rule being established by the decisions of the courts 
 necessarily came within the doctrine of stare decisis. The cases 
 announcing the rule became precedents and the exact language 
 used in the decisions of the courts tended strongly to limit the 
 law and prevent remedy for fraud unless it could be shown in 
 the strictest sense that the party charged with the fraudulent 
 statements knew them to be false at the time he made them. On 
 the other hand, the just demands of a developing people for rem- 
 edy in cases not within the exact language of the early decisions 
 grew stronger as time passed on. The pressure finally became 
 irresistible and relief from some source inevitable. 
 
 The first relief came through the Common Law courts by the 
 extension of the meaning of the words known and knowingly as 
 used in the ancient opinions. The first step was to include among 
 known false statements all false statements made by a party as 
 true, when he did not really know whether they were true or 
 false but believed them to be false. This can hardly be called 
 real extension, though it was so looked upon by the Common Law 
 judges. In such a case there is every element of moral turpitude 
 that exists in the case of a known false statement. The person 
 making the statement is really ignorant as to whether it is true 
 or false, but he believes it to be false, yet asserts it to be true 
 in order to obtain advantage. He is clearly willing to deceive 
 and an actual deceiver, and is morally and legally on an equality 
 with him who makes a false statement knowing it to be false. 
 
 The next enlargement came by extending the words known 
 and knowingly so as to include statements as to the truth or 
 falsity of which the party making them had no information but 
 which he believed to be true and. to support this belief, stated 
 that they were true as of his personal knowledge ; thus leading 
 the other person to believe that he had investigated the matter
 
 248 AMERICAN ELEMENTARY LAW. 
 
 and found the statements to be true, and was affirming their 
 truth as the result of such investigation. In such cases there is 
 no intent to deceive as to the main fact contained in the statement, 
 but there is intent to deceive as to the means of information upon 
 which the statement is based, and by this incidental deception to 
 increase the weight and influence of the main statement. The 
 Common Law very justly says that in these cases there exists an 
 intent to deceive in a matter so inseparable from the other facts 
 which induce action by the injured party, that it is impossible 
 to tell to what extent the falsehood really influences the injured 
 party, and that this unlawful intent vitiates the whole transaction 
 and puts it upon the same basis as a known false statement as 
 to a material fact. 
 
 Further than indicated in the last two paragraphs, the Com- 
 mon Law courts of England, as such, do not seem to have gone 
 in giving relief for fraud. 
 
 Recapitulating, we may state that the Common Law courts 
 of England will grant relief for fraud as a tort only in cases in 
 which the party making the false statement either, 
 
 (1) Knew the statement to be false at the time he made 
 the same, or 
 
 (2) Did not know whether the statement was true or false 
 but believed it to be false, yet stated it to be true, or, 
 
 (3) Did not know whether the statement was true or false 
 but believed it to be true and accompanied such state- 
 ment by the assertion that he knew it to be true. 
 
 One of the best definitions of fraud for which the Common Law 
 courts will give relief is that given by Mr. Anson in his work- on 
 Contracts, as follows: "Fraud is a false representation of fact, 
 made with knowledge of its falsity, or recklessly, without be- 
 lief of its truth, with the intention that it be acted upon by the 
 complaining party, and actually inducing him to act upon it." 
 
 C o.weption in Equity. — While the Common Law courts, in 
 deference to their ancient precedents and the doctrine of stare 
 decisis, have never gone beyond the cases just indicated in giving 
 relief for injuries resulting from deception, the Equity courts 
 have been, and are, more liberal. 
 
 These courts originated much later than those of the Common
 
 SPECIAL KINDS OP CONDUCT. 249 
 
 Law and consequently established their doctrines and maxims 
 at a time when the common conscience was better developed. In 
 addition to this, the purpose of their creation was to grant relief 
 in cases of manifest injustice for which no remedy could be had 
 in the courts of the Common Law. 
 
 Among the earliest and most important classes of cases over 
 which this new jurisdiction was extended were cases involving 
 fraud. The cases under this head first brought to these courts 
 were confessedly those in which the Common Law afforded no 
 relief, because the injured party could not show that the de- 
 ception resulting in his hurt had been knowingly brought about. 
 To deny relief under such circumstances would have been to 
 confess that in this respect Equity was no broader than Law, 
 and thus to contradict the fundamental idea upon which the whole 
 system of Equity Jurisprudence is based. Very logically, there- 
 fore, the courts of Equity declined to limit relief in cases of de- 
 ception within the narrow boundaries of the Common Law on that 
 subject, and entertained jurisdiction in many instances in which 
 there had been real, although not intended deception. A new 
 phrase was used to indicate this new doctrine, and for many years 
 ''Equitable Misrepresentation" has been as thoroughly recog- 
 nized as a basis for relief in chancery courts as "Deceit" has been 
 at Common Law. 
 
 Equitable Misrepresentation. — This phrase, in Equity, includes 
 all cases of material deception resulting in injury to a person 
 not chargeable with legal or equitable wrong, whether the party 
 occasioning such deception did so consciously with intent to de- 
 ceive, or unconsciously with innocent intent. 
 
 This equitable doctrine requires only two concurrent, funda- 
 mental facts; first, actual deception as to material facts, brought 
 about or existing under such circumstances as to be justly 
 chargeable to the conduct of one person and, second, hurt to 
 another directly resulting therefrom. To entitle to equitable re- 
 lief it does not insist on the existence of evil or improper motive 
 on the part of the deceiver; but is satisfied with the two facts, 
 deception through the conduct of one person and directly result- 
 ing hurt to another. 
 
 The number of cases which may be relieved in Equity under 
 this doctrine but in which no remedy could be had at Common
 
 250 AMERICAN ELEMENTARY LAW. 
 
 Law is very large, and the practical results upon the law as a 
 system of jurisprudence is very great. 
 
 These differences between deceit and equitable misrepresenta- 
 tion are still retained in United States' Courts and in most, if 
 not all, of the States which recognize the old English distinction 
 between Law and Equity. In a number of the States this dis- 
 tinction has been abolished by statute. The statutes having this 
 effect are not identical and the consequent results in the different 
 States are not entirely uniform. In some, the practical changes 
 have not been great, while in others an action for damages can 
 be maintained for equitable misrepresentation as fully, to all 
 intents and purposes, as upon Common Law deceit. 
 
 Conduct Fraudulent per se. — In the last several paragraphs 
 we have considered the question of motive as entering into the 
 fraudulent character of conduct. In many cases this is very 
 important and in a still larger number the fact of deception of 
 some sort is essential to the law 's conception of fraud. Notwith- 
 standing this, there are a few classes of cases in which neither 
 motive nor deception are of any consequence. These are those 
 states of fact which are declared by law to be fraudulent in 
 themselves. 
 
 When the law denounces a transaction as fraudulent per se the 
 motive upon which the parties thereto acted, or whether anyone 
 was. deceived thereby becomes entirely immaterial. The law has 
 set its absolute disapproval upon the transaction and the matter 
 ends with that. 
 
 The classes of cases which are declared fraudulent per se are 
 small and embrace only such transactions as give large oppor- 
 tunity for fraud and in which experience has taught that fraud 
 very generally exists. Hence the law, taking a practical view 
 of the matter, says that it is better to declare such conduct fraudu- 
 lent within itself, and thus prevent opportunity for overreaching 
 and unfair advantage, than it is to leave the matter open and 
 sustain such transactions unless some complaining party shall be 
 able to prove deception and consequent hurt. 
 
 One of the most common illustrations of acts deemed fraudu- 
 lent per se is found in mortgages of stocks of goods exposed foi 
 sale at retail when the mortgagor retains possession of the stock 
 and control of the business. Such a transaction in a given case
 
 SPECIAL KINDS OP CONDUCT. 251 
 
 might be perfectly honest and of advantage to all parties, but 
 the opportunity afforded to dishonest merchants acting in col- 
 lusion with preferred creditors to defraud other creditors is so 
 great, and the temptation is so strong, that as a matter of public 
 policy the law declares that every such mortgage shall be deemed 
 fraudulent. 
 
 Matter as to which Deception must Exist. — While the law rec- 
 ognizes deception as the very gist of fraud, it is still quite par- 
 ticular regarding the nature of the matters as to which the de- 
 ception must exist and limits its recognition to deception as to 
 material facts, past or present. 
 
 This doctrine eliminates from the conception of fraud mere 
 matters of opinion or surmise. As to these the conjecture of the 
 one party is legally supposed to be as reliable as that of the other, 
 and unless a misrepresentation includes a fact, the party is not 
 legally justified in relying upon it. 
 
 Thus, if a party desires to sell a horse and as an inducement 
 to the purchase states that the animal has a certain pedigree and 
 could easily be trained to trot a mile in two and a half minutes 
 Here the statement as to the pedigree of the horse is a statement 
 of a fact and if false, the deception as to this, if the other ele- 
 ments of fraud concur, is fraudulent. But the other statement 
 as to the effect of training and the speed which the horse might 
 attain as the result, is a matter of opinion as to which the law 
 presumes the purchaser is as well qualified to judge as the seller, 
 and fraud can not be predicated upon this statement. 
 
 It is also required that the fact pertain to something past or 
 present. Statements as to matters to take place in the future 
 are regarded in much the same light as opinions, at least they are 
 looked upon as matters which no one in the ordinary business 
 affairs of life is supposed to guarantee or assure. 
 
 When the statement as to the future assumes the nature of a 
 promise the law looks upon it as an expression of intention and 
 if it is the presont intent of the promisor to comply with his 
 undertaking, subsequent failure to do so, does not relate back 
 to the date of the promise and make the transaction fraudulent. 
 On the other hand, if at the time the promise is made the promisor 
 has no present intention to comply with his undertaking, then, 
 or at the time his promise matures, the law regards the promise
 
 252 AMERICAN ELEMENTARY LAW. 
 
 as a false statement as to a present mental condition and recog- 
 nizes it as a fact, and if the other elements of fraud concur, will 
 deal with it as fraudulent. 
 
 This distinction between a future promise honestly made, which 
 is not deemed fraudulent, and a false representation as to a pres- 
 ent mental attitude which is deemed fraudulent is quite clear 
 in the case of the purchase of personal property. A man hon- 
 estly intending to pay his account, according to agreement, buys 
 goods from a merchant promising to pay in sixty days. Before 
 the expiration of the sixty days some adverse conditions arise 
 and the purchaser, though anxious to pay, is financially unable 
 to do so. In this case, the law recognizes the honest intention 
 of the purchaser at the time he bought the goods and holds that 
 the title to the goods has passed absolutely to him, and is un- 
 affected by his subsequent default in payment, and the only 
 remedy of the merchant is to sue on his account and collect the 
 debt. But if at the time the buyer obtains the credit he is acting 
 dishonestly and has no intention of paying for the goods, and 
 uses his promise to pay in the future to hide his present dishonest 
 intent, and thus acquire possession of the goods of the merchant 
 without paying him therefor, the law looks upon this promise 
 as a subterfuge and declares the false statement as to the present 
 state of mind and intention of the buyer to be fraudulent. Upon 
 proof of such facts, the merchant could rescind the agreement to 
 sell and get back the goods which had been fraudulently pro- 
 cured. 
 
 While the law does not ordinarily regard a promise to do in the 
 future as a present fact, it scrutinizes very closely all statements 
 by the promisor as to his present or future ability to perform, 
 made as a basis for future performance. Thus, if a man de- 
 siring to secure credit, as an inducement to the extension of the 
 credit, should represent that he now has a certain amount of prop- 
 erty or a certain income, these latter statements relate to present 
 conditions and if false are regarded as fraudulent. 
 
 Materiality. — Not only must the statement be as to a fact past 
 or present but the fact must also be material. The law is in- 
 tensely practical and does not justify a man in drawing silly or 
 unreasonable conclusions and suffering himself influenced by 
 matters not ordinarily or reasonably calculated to have such 
 effect.
 
 SPECIAL KINDS OF CONDUCT. 253 
 
 A material fact is one which, taken in connection with the other 
 circumstances of the case, is reasonably calculated to influence 
 the conduct of the party to whom it is addressed, and so to induce, 
 him to take the action desired by the one making the statement. 
 The ordinary test as to whether or not any given statement is 
 reasonably calculated to influence the party to whom it is ad- 
 dressed is the effect, that under the circumstances surrounding 
 the parties, the statement would have upon a man of ordinary 
 prudence and judgment. If in any particular case a statement 
 not reasonably calculated to influence an ordinary man is relied 
 upon as material because it did in fact influence the particular 
 party to whom it was made, the peculiar circumstances which 
 caused it to have such effect must be shown before the law will 
 recognize the statement as material. These peculiar circum- 
 stances may consist of confidential relations between the parties, 
 mental feebleness, or any other fact which actually causes the 
 statement to have a controlling influence. 
 
 Means by which Deception is Accomplished. — Many expressions 
 to be found in the decisions of the courts and in legal treatises 
 make the means by which fraud is consummated so emphatic as 
 to justify the conclusion that the artifice made use of to ac- 
 complish the deception is the fraud. Indeed high authority can 
 be found for the proposition that it is not desirable to define 
 fraud for the reason that as soon as its methods of accomplish- 
 ment are enumerated by the law, and the whole ground of fraud 
 is thus covered, evil disposed parties will find other methods 
 by which to accomplish their purposes, and these, not being 
 within the enumeration, the transaction could not be regarded as 
 fraudulent. 
 
 Notwithstanding these authorities the true conception of fraud 
 distinguishes between the deception and the means or artifice by 
 which the deception is brought about and regards the deception 
 as the basic idea in fraud. In thus dealing with fraud in its 
 essence no danger can arise from a definition, if any one can be 
 found capable of formulating one. 
 
 The means by which deception is accomplished or availed of 
 in such way as to make any particular person . responsible there- 
 for as fraud involves two general questions. First, How was the 
 deception brought about, continued, or permitted to continue? 
 Second, "What connection did the parties, sought to be charged",
 
 254 AMERICAN ELEMENTARY LAW. 
 
 have with such means? These two phases of the subject must be 
 kept in mind or confusion will result. As fraud consists in de- 
 ception resulting in injury, there can be no fraud as to any par- 
 ticular person unless he is actually under a misapprehension as 
 to a material fact or facts, and no one is chargeable with fraud 
 unless he has in some way responsible connection with the hurtful 
 misapprehension. This guilty connection may consist in causing 
 the deception or in affirmatively fostering and continuing a de- 
 ception already existing, or in simple failure to disclose the 
 truth. The first and second of these come under the head of 
 affirmative conduct, and the third, under the head of negative 
 conduct 
 
 The means by which deception is caused or brought about is 
 called misrepresentation ; the means by which deception is affirma- 
 tively continued is called concealment; and the means by which 
 deception is simply permitted to continue is called non-disclosure. 
 
 Misrepresentation. — This includes any and all conduct by 
 which an untrue idea is conveyed to the mind and a false im- 
 pression made thereon. It usually consists in words, oral or 
 written, but this is by no means necessary. The method of creat- 
 ing the false impression is immaterial. If the false thought and 
 belief are created in the mind of the party sought to be influenced 
 thereby, the means by which this is accomplished is legally of 
 little significance. Different methods employed may necessitate 
 different means of proving the facts and in this way may make 
 the actual establishment of fraud more or less difficult, but the 
 legal effect, no matter by what means the facts may be proved, is 
 the same. False impressions created in the mind by affirmative 
 conduct always come under the general head of misrepresentation. 
 
 Concealment. — Concealment differs from misrepresentation in 
 this: it never creates a false impression, but the wrongdoer find- 
 ing the mind of him with whom he is dealing already under the 
 influence of a false idea does something which is reasonably cal- 
 culated to prevent, deter or hinder the deceived party from ascer- 
 taining the truth. Concealment goes beyond simple failure to 
 relieve the mind of the deceived party of the false impression 
 and in some way comes between him and the ascertainment of the 
 truth. To all intents and purposes it is legally and morally as 
 reprehensible as misrepresentation. Concealment always in-
 
 SPECIAL KINDS OP CONDUCT. 255 
 
 volves affirmative conduct in some way and to some extent. Such 
 conduct may be very slight and very limited but unless the wrong- 
 doer in some way prevents or deters the deceived person in the 
 ascertainment of the truth, properly speaking, he is not guilty 
 of concealment. 
 
 Non-disclosure. — Non-disclosure on the other hand, is always 
 purely negative, consisting in a failure to give information or 
 relieve the mind of the deceived party of false impressions al- 
 ready existing. As we have already seen, failure to act does not 
 come within the law's cognizance and jurisdiction unless the 
 party so failing is under legal duty to do that which he has failed 
 to do. Applying this general principle to the matter in hand 
 neither law nor equity, as a general rule, holds a person respon- 
 sible for failure to relieve the mind of another party of false 
 impressions, unless the facts and circumstances in the case show 
 it to have been a legal duty on his part to give information con- 
 cerning the matter as to which the deception exists. 
 
 This duty of disclosure may arise from several states of fact. 
 
 (1) The duty arises and is enforced whenever there are con- 
 fidential relations existing between the parties. For example, 
 such as principal and agent, parent and child, trustee and benefi- 
 ciary, attorney and client, etc. In each of these and similar 
 relations the law enjoins upon the person trusted to make full 
 and fair disclosures of all facts pertaining to or involved in the 
 trust, and the failure to do so, if resulting in hurt to the party 
 who is uninformed, leads to legal liability. 
 
 (2) While the ordinary rule of the Common Law in the sales 
 of personal property is caveat emptor, which requires the pur- 
 chaser to be on his guard and diligently exercise his own powers 
 for his own protection, this rule is not extended to cases of latent 
 defects not open to ordinary observation or discoverable by the 
 use of ordinary care. In case of such latent defect it is the duty 
 of the seller to disclose the same to the purchaser and failure to 
 do so is regarded as fraud. 
 
 (3) In its tenderness for human health and life the law re- 
 quires that those who sell food, or material from which it is known 
 the purchaser intends to make food, shall disclose any and all 
 defects therein, especially those which, in any manner, tend to 
 make the food physically injurious.
 
 2f)(5 AMERICAN ELEMENTARY LAW. 
 
 (4) In later years there is a strong tendency to extend the 
 doctrine announced in the last paragraph to sales of feed stuffs 
 for animals. 
 
 (5) The same or a closely related principle is quite generally 
 applied in the sale of diseased living animals, making it the duty 
 of the seller, if aware of the fact, to inform the buyer of the 
 diseased condition of the animal or animals offered for sale. 
 This rule is more rigidly enforced when the disease is infectious 
 or contagious and hence not only affects the value of the animals 
 then subject to it but makes them a direct source of danger to 
 other stock with which they may be brought in contact. 
 
 (6) In addition to the foregoing, there are occasional cases of 
 great hardship in which the law gives relief. These are cases in 
 which the means of information as to material facts are not 
 equally open to both parties and in which the party having the 
 information knows that the other is ignorant as to the facts, and 
 consciously and intentionally takes advantage of such ignorance 
 in procuring an agreement, which it is practically certain the 
 ignorant party would not have made had he been advised of the 
 facts, and thus obtains an unconscionable advantage. In such 
 cases the courts scrutinize the facts very closely and require that 
 injustice must be clearly apparent before relief will be granted. 
 
 Results of Deception. — To be actionable as fraud the deception 
 must always result in pecuniary injury to the deceived party. 
 If a person induced by false suggestion makes a contract which 
 results in his pecuniary gain he cannot maintain an action on 
 purely sentimental or ethical grounds. Thus, if a person, in 
 order to sell a tract of land, should falsely represent that it was 
 arable and productive and so should induce another to purchase 
 it, if in fact the land though barren and unfit for cultivation had 
 in it minerals, making it more valuable than farming lands, the 
 purchaser could not maintain an action by reason of the false 
 statements as to the productiveness of the land. The law looks 
 largely to pecuniary results, and to a large extent awards its 
 remedies in the form of money compensation for financial loss. 
 Applying this rule to the example stated the purchaser's case 
 must fail. Though he did not get just the thing that he desired 
 he obtained that which was worth more on the market, and in legal 
 theory his remedy is in his own hands, viz., to sell the valuable
 
 SPECIAL KINDS OF CONDUCT. 257 
 
 thing which he has and buy the thing which he had formerly 
 desired. So long as this remedy is within his own control the 
 law does not undertake to give him redress through governmental 
 agencies. 
 
 Parties Affected by Fraud. — In most fraudulent transactions 
 the deception is produced or exists in the mind of one of the 
 parties to an agreement. These cases fall under one or the other 
 of the heads, fraud in inducement or fraud in esse contractus. 
 These are discussed later. 
 
 There are, however, a good many fraudulent transactions to 
 which the person injured is not a party, but is a third person 
 whose rights are prejudiced by the fraudulent conduct of others. 
 This prejudice results from some false stcte of facts or conditions 
 brought about by the defrauding parties. These cases therefore 
 come strictly within our original conception of fraud, viz., de- 
 ception resulting in unfair disadvantage to the party deceived. 
 
 Classifications of Fraud. — Having thus considered the general 
 features of fraud it may be well to give some of its ordinary 
 classifications. 
 
 When classified as to motive, fraud is known as actual, con- 
 structive and fraud per se. 
 
 Actual fraud includes all cases of intended known deception 
 resulting in undue advantage. 
 
 Constructive fraud includes those cases in which there was 
 actual deception but no intent at the time to deceive. 
 
 Fraud per se includes those transactions which the law declares 
 to be fraudulent without reference to the motive actuating the 
 parties. 
 
 "When classified with reference to the rules of Common Law 
 and of Equity, fraudulent transactions are divided into deceit 
 and equitable misrepresentation. This division is almost the 
 same as that into actual and constructive fraud. 
 
 Deceit, which is actionable at Common Law, includes only 
 cases of intentional deception. These embrace therein first, those 
 instances in which the statement was known to be false, second, 
 those in which the falsity of the statement was not absolutely 
 known to' the party making it but in which he believed it to be 
 false, and third, those cases in which the party making the state- 
 17
 
 258 AMERICAN ELEMENTARY LAW. 
 
 inent believed it to be true but had not investigated to ascertain 
 its truth or falsity yet stated it to be true as of his own knowledge. 
 
 Equitable misrepresentation includes those cases in which the 
 statement was not known to be false and was made innocently, 
 though in fact it was false. These oases are spoken of as equit- 
 able misrepresentation to indicate that courts of equity will afford 
 relief in such cases although courts of law will not. If a case is 
 one of deceit and adequate redress can be had at law, courts of 
 equity will not take jurisdiction over it. If, however, there are 
 facts and circumstances in connection with the case of such nature 
 that relief at law would not be adequate, or if there are addi- 
 tional facts or circumstances which give jurisdiction of the case 
 to courts of equity on other grounds, equity will take cognizance 
 of and give appropriate relief for deceit. 
 
 The remedy for deceit at Common Law is by judgment for 
 damage. The remedy in courts of equity for misrepresentation 
 or deceit, when it takes jurisdiction of the latter, may be rescis- 
 sion of the agreement, or damages, or both, according to the facts 
 of the case. 
 
 "When classified as to the parties to be affected frauds are 
 divided into those perpetrated upon one or more of the parties 
 to the agreement and those in which some or all the parties to 
 the agreement conspire to defraud a third person or persons. 
 
 Frauds, as between parties to the agreement, are subdivided 
 into fraud in inducement and fraud in esse contractus. 
 
 Fraud in inducement may be defined as deception of one party 
 to an agreement, unlawfully caused or availed of by the other 
 party to the agreement, with regard to some material fact, by 
 means of which deception, the deceived party is induced to give 
 apparent, though unreal, assent to the agreement resulting in 
 injury to the deceived. 
 
 This definition puts the stress or emphasis upon the deception 
 of the injured party. He must be under a false impression. 
 No one who knows the truth concerning a matter can claim to 
 have been defrauded by acting on a statement regarding this 
 matter which he did not believe to be true. 
 
 This deception must have been unlawfully occasioned or availed 
 of by the other party to the agreement. It is absolutely essen-
 
 SPECIAL KINDS OP CONDUCT. 259 
 
 tial that the party charged with fraud be in some way identified 
 with the deception constituting the fraud. This identification 
 or privity may be by affirmative conduct creating a false impres- 
 sion or by taking advantage of a false impression already exist- 
 ing in the mind of the other party and in some way preventing 
 or hindering him from ascertaining the truth. These two phases 
 are covered by misrepresentation and concealment. The iden- 
 tification may be by taking advantage of a known deception and 
 failing to disclose the truth. A party is never legally responsible 
 for failing to disclose the truth unless his relations to the other 
 party or the nature of the particular agreement is such as to 
 make it his legal duty to disclose the facts. This availing of 
 deception without occasioning it and without doing anything 
 to prevent the deceived party from ascertaining the truth is 
 known as non-disclosure. 
 
 The deception must be as to a fact, past or present, not opin- 
 ion or future promises, though a promise which involves a false 
 impression as to a present mental condition is regarded as a false 
 statement as to a present fact. 
 
 The deception must actually influence the party deceived, so 
 that by reason thereof he gives his consent to the agreement 
 sought by the other party. This influence must be so great that 
 but for the deception the assent would not have been given. 
 The assent resting upon this false and fictitious basis cannot 
 justly be regarded, morally or legally, as equivalent to assent 
 based upon truth. The assent based upon deception is properly 
 held to be apparent only and unreal. If assent were given with 
 full knowledge of the facts neither party would have cause to 
 complain. If assent were given on a false basis when the party 
 getting the advantage was in no way responsible for the decep- 
 tion it would be unjust to him to hold him legally liable therefor. 
 The law would regard the injury of the deceived party as the 
 result of his own fault in failing to advise himself, and not as 
 the result of the conduct of the other party who had been guilty 
 of no legal wrong. 
 
 The action induced by, and based upon, the deception must 
 result in injury to the person deceived, otherwise he has no legal 
 ground of complaint.
 
 260 AMERICAN ELEMENTARY LAW. 
 
 These are the essential elements of fraud in inducement. If 
 all of them concur the law takes cognizance of the case as one of 
 deceit or equitable misrepresentation according to the facts of the 
 particular case. 
 
 Fraud in esse contractus consists of deception which results 
 in obtaining false evidence of assent to a hurtful agreement to 
 which no assent in fact was ever given. 
 
 The possibilities for fraud of this kind arise from the fact that 
 some contracts are required to be evidenced by writing and that 
 all contracts, if so desired by the parties, may be evidenced in 
 this way. It is a general rule of law, when parties have reduced 
 their agreements to writing and executed them as required by 
 law, that the written instrument merges into itself all previous 
 and contemporaneous agreements by the parties covered thereby, 
 and is the best legal evidence as to the final understanding and 
 promises of the parties. This is a salutary rule, in the great 
 majority of cases, but it is not impossible that in some instances 
 through carelessness or mistake, or willful wrong, the written 
 paper should be really incorrect and, instead of embodying the 
 real agreement, may mean something else. This possibility of 
 difference between assent and the evidence of assent gives 
 another opportunity for deception and unfair advantage. For 
 illustration : One person sells another a piece of property for one 
 thousand dollars, to be paid in six months, and the purchaser 
 agrees to give his note for this amount, payable at that date. 
 The transaction so far is perfectly fair, no deception has been 
 practiced ; the seller undertakes to prepare the papers to con- 
 summate the deal. In doing so, he prepares two notes for signa- 
 ture, one for one thousand dollars, payable in six months, just as 
 agreed upon ; the other for two thousand dolars. He submits 
 the first to the buyer, who inspects it, and, finding it all right, 
 undertakes to sign it. His attention is called off and the seller, 
 without the buyer's knowledge, substitutes the two thousand dol- 
 lar note for the one the buyer has just read. The latter, with- 
 out negligence on his part, signs the note for two thousand dol- 
 lars and delivers it to the seller, believing it to be the note for 
 one thousand dollars. This is a case of fraud, not in procuring 
 the original agreement to pay one thousand dollars, but in pro- 
 curing the false evidence of that contract which shows the note
 
 SPECIAL KINDS OF CONDUCT. 261 
 
 to be for two thousand dollars. Here the buyer's mind does 
 not receive or act at all on a proposition to pay two thousand 
 dollars for the thing; but, without any consciousness upon his 
 part that he is doing so, he is deceived into signing a written 
 instrument of whose terms he is ignorant, and evidencing an 
 agreement to which he has not given even an unreal assent. 
 
 The distinction between this and deception practiced to pro- 
 cure the assent of the mind to the terms of the agreement, by 
 misrepresentation as to material facts inducing the agreement, is 
 readily perceptible. It is too plain and practical for the law to 
 ignore it, and its recognition results in the separation of frauds 
 between parties to contracts into frauds in inducement and frauds 
 in esse contractus. 
 
 Results Following. 
 
 When conduct is fraudulent in the sense above set out, it is 
 manifest that it has large influence in determining legal rights. 
 If it constitute fraud as defined at Common Law, it gives to the 
 injured party a right to compensation from the fraudulent party 
 for all damages sustained directly therefrom and also gives a 
 right to have the contract canceled in a court of Equity. If it 
 does not meet the Common Law requirements as to known falsity, 
 but comes within the equitable doctrine of misrepresentation, 
 it entitles the injured party to cancel the contract, and compel 
 restitution of what he has given under it. In several States it 
 has either or both of these consequences, as the justice of the case 
 may require. The fraudulent party can never take advantage 
 of his own wrong to obtain relief from the consequences of the 
 contract. 
 
 These results are usually stated by saying that a contract pro- 
 cured by fraud is voidable at the instance of the defrauded party, 
 and that he can recover all damages sustained by him as a direct 
 result of the fraud, but that the contract procured by fraud is 
 binding on the fraudulent party. 
 
 Fraud in esse contractus is absolutely fatal to the validity of 
 the instrument procured thereby. It can not be enforced by the 
 original fraudulent party, or any one claiming under him, even 
 though the instrument be negotiable in form and be in the hands 
 of an innocent purchaser for value and without notice.
 
 262 AMERICAN ELEMENTARY LAW. 
 
 Frauds Upon Persons Not Parties to the Transaction. 
 
 These frauds are committed usually, if not always, by means 
 of conveyances or other disposition of property upon which a 
 third party has some claim or demand. Sometimes the claim on 
 the thing may be some title or estate in it, sometimes it is a spe- 
 cific charge or lien, and sometimes it is a general right to collect 
 debts by its sale under judicial process. The fraudulent pur- 
 pose, actual or imputed, is so to deal with the property as to de- 
 stroy or defeat the title or claim of the third party. Fraud of 
 this kind is also both actual and constructive. It is actual, in 
 those cases and as to those persons, who, conscious of the right 
 of the third party, perform the act detrimental to him with the 
 intent and purpose to delay or defeat such right. It is construc- 
 tive, in those cases and as to those persons who do not know of 
 such unlawful purpose, yet who are so connected with the un- 
 lawful act as to receive unfair and unconscionable advantage 
 by reason thereof; and also in those cases which, from long ex- 
 perience, the law denounces as fraudulent, without reference to 
 the motives of the parties, because they are so often accompanied 
 by actually fraudulent purpose, or give such great opportunities 
 for fraud. An example of actual fraud is found in the con- 
 veyance by an insolvent debtor of property subject to execution, 
 made with the purpose to hinder, delay, or defeat the rights 
 of his creditors. An example of the first kind of constructive 
 fraud is found in the gift of property, subject to execution, by 
 a person who believes he has enough left to pay his debts, but 
 who, in fact, has not ; and constructive fraud of the second kind 
 is found in the mortgage of a stock of goods exposed to sale at 
 retail and leaving the mortgagor in possession and control. 
 
 Fraud of the kind now under consideration affects legal rights 
 differently, according to the circumstances of the case and the at- 
 titude of the parties toward the transaction. The rules may be 
 stated, very generally, as follows : 
 
 (1) In cases of actual fraud, where the fraudulent purpose 
 is known to both parties and shared in by them, the law will not 
 undertake to enforce any executory terms of the fraudulent 
 agreement, nor to restore either party to his original position. 
 It simply applies the doctrine that from a known unlawful and 
 immoral act no cause of action can arise to either party to the
 
 SPECIAL. KINDS OP CONDUCT. 263 
 
 transaction knowingly participating in the wrongful action ; the 
 vested rights of either are not in any way to be disturbed thereby. 
 As to third parties having no vested rights at the time and not 
 subsequently misled thereby to their injury, the transaction, and 
 all of its consequences, are sustained. As to third parties there- 
 after acquiring interests for value without notice, and in good 
 faith, the transaction will hold, so far as is necessary to protect 
 such bona fide rights. 
 
 (2) In cases of actual fraud by one party, unknown and un- 
 participated in by the other, the transaction will not, in any way, 
 protect the one having the fraudulent purpose. It will protect 
 the innocent person, so far as equity may require; that is, if a 
 party has paid value for property conveyed to him with intent 
 to defraud the creditors of the seller, of which the purchaser had 
 no notice, the creditors could not reach the property in his hands. 
 However, if he had not paid value, but had taken the property 
 as a gift, the creditors. could still proceed against the property. 
 He would be in no worse condition after than before. 
 
 (3) Acts declared to be fraudulent by the law. In these cases 
 the intent of the parties to the particular transaction is of no 
 consequence. For reasons of public policy, the law denounces 
 all transactions of certain kinds as fraudulent and they can not be 
 effective to the injury of third persons. If, however, they have 
 been executed, they will hold, as between the parties.
 
 CHAPTER XI 
 
 SPECIAL KINDS OF CONDUCT WHICH AFFECT LEGAL RIGHTS AND 
 DUTIES (CONTD.) 
 
 ESTOPPEL. 
 
 Estoppel is cutting off or precluding a person from denying 
 the truth of a statement previously made by him. It is applied 
 to two classes of statements : 
 
 (1) Statements made in some solemn form, as by deed or some 
 public record ; or 
 
 (2) Statements which have deceived some one and by so doing 
 have caused him to act in such way that it would be injurious 
 to him to allow the party making the statement to deny its truth. 
 
 The fh'st is called estoppel by deed and the second estoppel 
 in pais. 
 
 Estoppel by Deed. — This is quite an ancient doctrine and has 
 long been in high favor with the courts. It precludes or cuts off 
 a person from denying what he or some one in privity with him 
 has formerly declared to be true, in a formally executed sealed 
 instrument or which he has solemnly admitted to be true in the 
 course of judicial proceedings. The doctrine is based on con- 
 siderations of public policy as tending to secure verity in public 
 records and stability of rights held under solemn instruments. 
 
 Estoppel in Pais. — This doctrine is based on the same broad 
 principle of justice as the Law against fraud, viz., that one person 
 shall not be permitted to mislead another to the latter 's injury. 
 In fraud, he who has made the false statement inducing another 
 to act thereon, when the deceived party finds it to his interest to 
 set up the falsehood, is compelled to pay to the injured party the 
 damage sustained by reason of the falsehood or else to put him 
 back in the position he occupied before he was deceived. * In es- 
 toppel, the deceived party finding it to his interest to compel the 
 party deceiving him to settle with him upon the basis that the 
 false statement is true, invokes the false statement and compels
 
 SPECIAL KINDS OP CONDUCT. 265 
 
 adjustment upon that basis. In fraud the party injured by 
 reason of the deception sets up the deception as a reason for not 
 being bound by the agreement induced by it. In estoppel the 
 party who has acted upon the false statement compels the one 
 making the false statement to make that statement good by now 
 acting upon it as true. 
 
 In the law of estoppel the terms misrepresentation, conceal- 
 ment, and non-disclosure have the same meaning as in the law 
 of fraud. That is, one may be estopped by affirmatively making 
 a false statement by which another is deceived, or he may be es- 
 topped by preventing one who is already deceived from obtaining 
 correct information, or he may be estopped by failure to give 
 information, when the circumstances are such as to make it his 
 legal duty to disclose the facts. 
 
 The following conditions must exist to constitute an estoppel 
 in pais. 
 
 (1) There must be a misrepresentation or concealment or non- 
 disclosure of material facts, using these terms in the sense which 
 they have in the law of fraud. 
 
 (2) The matter misrepresented or concealed or non-disclosed 
 must be plain and certain, and ordinarily must relate to past or 
 present facts, not to mere matter of opinion. 
 
 (3) The party sought to be estopped must know the truth re- 
 garding the matter unless he is so related to the facts that he is in 
 law chargeable with knowledge of them or it is his legal duty to 
 know them. 
 
 (4) The party setting up the estoppel must be ignorant of the 
 facts. 
 
 (5) The party sought to be estopped must know of the decep- 
 tion of the other and design that he should be influenced and in- 
 duced to act thereby. In some instances recklessness as to the 
 rights of the other party may supply the place of intent. 
 
 (6) The person setting up the estoppel must be in fact de- 
 ceived and act upon the deception in such manner as to do him 
 substantial injury unless he is permitted to protect himself by 
 estoppel. 
 
 The doctrine of estoppel is an exceedingly salutary one and runs 
 through the whole body of the Civil Law.
 
 266 AMERICAN ELEMENTARY LAW. 
 
 LICENSE. 
 
 Definition. — License is a privilege or permission which one or 
 more persons have to use, enjoy, or in some way profit by some 
 thing or right belonging to another. 
 
 The license may be given either by law or by the person whose 
 rights or property are affected thereby. 
 
 Licenses oy Law. — There are numerous privileges allowed by 
 law to persons which, without such legal permission, would be 
 violative of the rights of those whose interests are affected thereby. 
 Some of these privileges are express, often being based upon ex- 
 press legal command. 
 
 Very frequently the command of the law to do a certain thing 
 carries with it by necessary implication permission or license to do 
 other things incidental to the carrying out of the command. As 
 when an officer has a writ to arrest one accused of crime he is 
 thereby licensed to enter the premises of the party sought to be 
 arrested or of other persons where the officer has reason to believe 
 the accused may be found. Or if an officer has a writ commanding 
 him to seize certain property belonging to a party, he is hereby 
 authorized to enter the premises where the property is to take it. 
 
 The law extends many licenses in the ordinary affairs of life 
 because they are conducive to the public welfare. For example, 
 strictly speaking the application of force to the body of another 
 is unlawful. To justify any particular application of force the 
 party must bring himself under some recognized rule of law au- 
 thorizing him to use the force. Perhaps the most far reaching 
 and frequent exception invoked for this purpose is the license 
 given by law to the casual contacts of ordinary life. It would 
 be both foolish and impracticable for the law to withhold its 
 license from such contact. 
 
 Licenses given by law ordinarily cannot be revoked by him 
 with whose rights they interfere, but they may in almost all in- 
 stances be forfeited by the wrongdoing of the licensee. For 
 example, an officer has a writ commanding him to seize the prop- 
 erty of a debtor and sell it for the payment of his debt. The 
 debtor cannot cancel this command or any of the privileges of 
 the officer incidental thereto, but if the officer shall seize the 
 property under the writ and thereafter shall violate the command
 
 SPECIAL KINDS OP CONDUCT. 267 
 
 of the writ in dealing with the property, this departure from the 
 command of the law forfeits the officer's right under the writ, 
 and he becomes a trespasser as to all he has done thereunder and 
 is responsible to the owner as such. 
 
 Licenses Given by the Person Whose Rights Are Affected. — We 
 have already found that at Common Law unperformed promises 
 not having all the essentials of contract cannot be enforced, and 
 that those promises which do have the elements of contract may 
 be enforced. Many licenses actually existing result from at- 
 tempts to enter into contract in which the agreement lacks one or 
 more of the elements of contract. The elements most frequently 
 wanting are consideration and form. Occasionally the defect 
 is in the nature of the thing undertaken or the purpose to be ac- 
 complished. 
 
 Again, numerous licenses arise from agreements which the par- 
 ties do not intend shall amount to contract, but shall result in 
 revocable privileges. 
 
 Not infrequently licenses arise as incidents to valid agreements 
 to the performance of which they are necessary. These are 
 called licenses coupled with an interest. They are so closely re- 
 lated to the contracts out of which they arise that they may well 
 be regarded as implied terms thereof. 
 
 Such a large number of licenses resulting from agreement are 
 based upon agreements lacking consideration that it is customary 
 to speak of licenses arising from the acts of parties as distinguish- 
 able from contracts by the absence of consideration. In this 
 class of licenses are embraced all those permissions given to per- 
 form acts or exercise privileges of such kind that oral authority 
 would be good therefor, but which are without consideration. 
 Such permission or license cannot amount to a right because the 
 agreement out of which it grows is non-enforceable at law and 
 for its violation there can be no legal remedy. Such licenses 
 are, therefore, necessarily revocable at the will of the licensor. 
 Such revocation ends the privilege conferred by the license and 
 the licensee can no longer legally exercise it. Notwithstanding 
 this, the same doctrine that recognizes and legalizes voluntary 
 agreement as bases of legal rights when such agreements are 
 performed applies here and as a result the license, while it existed, 
 was a complete legal justification for everything done by the
 
 268 AMERICAN ELEMENTARY LAW. 
 
 licensee in accordance therewith and no action can be maintained 
 for such action after the license is revoked. 
 
 There are certain agreements that are required to be in writing 
 in order to make them legally enforceable. If an agreement of 
 this kind is entered into by parol, in the majority of cases, it 
 constitutes merely a license, not a contract. For example, the 
 law requires conveyances of estates in land for longer than a 
 designated term, usually one year, to be in writing. If a person 
 were to orally agree to sell land, the purchaser promising to pay 
 consideration therefor and should suffer the purchaser to take 
 possession, these facts would not constitute a conveyance of the 
 land, but a mere license to occupy and enjoy it. If the grantor 
 refused to go forward with the sale the grantee could not com- 
 pel him to do so. If the grantor demanded possession of the land 
 the grantee could not successfully resist his right of re-entry. 
 To regard the parol agreement as a conveyance, or even as an 
 enforceable agreement to convey, would be in direct violation of 
 the statute. Notwithstanding the agreement for the sale of the 
 property cannot be legally enforced and is subject to revocation 
 at any time by the grantor, it was still good as a license to enter 
 and hold possession of the land until its revocation, and as such 
 is a complete defense against liability of the grantee as a tres- 
 passer. If, however, the grantee should continue to hold posses- 
 sion after the license is revoked, his possession would become 
 unlawful and subject him to all the liability of a trespasser from 
 the time his right under the license ceased. 
 
 Agreements which are unlawful in their purpose or nature 
 are never contracts. The law is not fully settled as to whether 
 or not such agreements can ever be good as licenses. The weight 
 of authority and principle concur in the proposition that strictly 
 speaking they cannot. 
 
 Among the most interesting class of cases of this sort are those 
 which relate to the application of force to the body. It seems to 
 be universally conceded that an individual may lawfully agree 
 to the use of a reasonable amount of force to his person applied in 
 such way as is not reasonably calculated to do him appreciable 
 harm. This rule is both reasonable and useful. Many of the 
 necessary activities of life could not be carried on without it. 
 The right to engage in lawful games and sports comes under its
 
 SPECIAL KINDS OF CONDUCT. 269 
 
 sanction. The performance of surgical operations and other like 
 proper applications of force for the benefit of him to whom it 
 is applied are justified by it. "With these classes of cases we have 
 no difficulty. 
 
 When, however, it is sought to license by agreement the un- 
 reasonable and dangerous application of force to the body of 
 another, or application of even slight force for the purpose of 
 violating the law, different rules of law are brought into play. 
 It seems perfectly clear that no agreement seeking to accomplish 
 either of these ends could be valid as a contract. This is well 
 established by the authorities. It seems on principle equally clear 
 that no such agreement is good as a license. The law ought not 
 to countenance agreements made in violation of its own pro- 
 visions or permit parties to justify their conduct on the theory 
 that the party injured was himself willing that the hurt should 
 be inflicted. Laws are not made by the agreement of a few 
 individuals nor ought such individuals to be privileged by agree- 
 ment to set the law aside and thus practically repeal it. The 
 weight of authority agrees with this course of reasoning. 
 
 Just here a curious result is announced by many of the courts. 
 Two persons agree to fight in violation of the criminal law. One 
 injures the other. The injured party sues for damages. The 
 defendant sets up the agreement as a license to prevent recovery. 
 The court holds that the agreement was in violation of law and 
 was therefore not a license and that the defense set up is not good. 
 This is perfectly logical and legal but the curious fact is that the 
 court having declared the agreement unlawful and hence not a 
 sufficient basis for license, stops its investigation as to the effect 
 of the illegality of the agreement upon the conduct of the parties 
 and gives to one of the conspirators against the law a remedy 
 against the other for damage received in its known and conscious 
 violation. It seems clear that the true legal doctrine is that the 
 agreement is an unlawful conspiracy from the carrying out of 
 which no cause of action could arise in behalf of either con- 
 spirator. 
 
 WAIVER. 
 
 Waiver is an express or implied yielding of some right or 
 privilege to another without consideration, but under such cir- 
 cumstances as to cut the party off from further setting up the
 
 270 AMERICAN ELEMENTARY LAW. 
 
 same to the disadvantage of the party in whose favor the waiver 
 was made. It is very closely connected with estoppel, differing 
 from it mainly in the fact that it usually relates to something to 
 be done, or forborne, in the future. To make a waiver binding, 
 the circumstances must be such as to make it clearly uncon- 
 scionable to permit the party to again assert the right or privilege, 
 or the waiver must be expressly authorized by law. 
 
 LACHES. 
 
 This is a failure to use due and reasonable diligence in the 
 prosecution of a right. Before it can be effective to cut off rights, 
 the delay must be so long as to cast serious suspicion on the 
 original justness of the claim or raise a strong presumption of 
 settlement or abandonment.. It is an equitable doctrine, and is 
 frequently denominated Stale Demand, though there are ap- 
 preciable differences between them. It is frequently said that, 
 to constitute a defense, laches must have continued for the length 
 of time which would constitute a bar by limitation, in a court of 
 law, on a similar cause of action. This does not seem altogether 
 correct, for sometimes it is true that delay less than the statutory 
 period will be fatal to the equitable proceeding, if such delay be 
 accompanied with some other evidences of suspicion, adjustment 
 or abandonment. 
 
 CONDUCT CONSTITUTING A BAR UNDER STATUTE OP LIMITATION. 
 
 This is delay to enforce, or attempt to enforce, a right, through 
 the courts, for the length of time which the law says shall con- 
 stitute a complete bar to the successful prosecution of a suit based 
 on such right. These are primarily legal defenses, but Equity 
 will follow the law in this respect, and will refuse to recognize 
 and enforce any right which would be barred in the law courts. 
 The terms upon which limitation can be based are always fixed 
 by law, either Common or Written, and to avail himself of the 
 bar the party seeking its protection must be able to establish facts 
 bringing him within these terms. This he may do by admission of 
 his adversary in his pleadings, or by pleading and proof in his 
 own behalf. The usual requirements, when property is involved, 
 are that the party invoking the bar has had continuous adverse
 
 SPECIAL KINDS OF CONDUCT. 271 
 
 and peaceable possession of the property for the length of time 
 mentioned in the law. If special additional facts, such as a re- 
 corded title to him, payment of taxes, etc., are made essential by 
 the law, he must both plead and prove them. 
 
 At Common Law, limitation was said to be a shield of defense, 
 but not a sword of offense; that is, it was a protection against 
 successful suit against the person entitled to it, but it never 
 ripened into a title which he could make the basis of an action 
 by him, if he should be dispossessed. To do the latter, at Common 
 Law, he was required to show such facts as would raise a pre- 
 sumption of a grant to him, and thus show what was called a title 
 by prescription. Under many statutes, these prescriptions are 
 done away with, and one who holds possession of the property for 
 the time, and under the conditions required by statute, becomes 
 the owner, and may sell the property or maintain any action, 
 either legal or equitable, for it. 
 
 Usually there are exceptions in statutes of limitations in favor 
 of persons non sui juris from any continuing cause. These vary, 
 according to the judgment and policy of the legislature. Married 
 women are no longer included among the exceptions, under the 
 statutes of Texas. 
 
 Statutes of limitation, when the time is reasonable, giving fair 
 opportunity for enforcement of the right before its loss, are salu- 
 tary as statutes of repose, whose tendency is to quiet titles and 
 prevent stale litigation. 
 
 It sometimes occurs that, when a wrong is committed, the in- 
 jured party is under two disabilities. "When this is the case, the 
 statute of limitations does not begin to run till the removal of 
 the one continuing longest; as, if a woman be an infant and of 
 unsound mind both when her property is taken, limitation would 
 not begin to run against her right to sue until after the cessation 
 of both these disabilities. 
 
 In some instances, when the cause of action accrues the party is 
 under one disability and, before the removal of that, another will 
 arise : As if a wrong is done an infant, and before he obtains his 
 majority he becomes insane. In such case, the disabilities are 
 not to be added : but. when the one existing at the time the right 
 to sue arose is removed, limitation begins to rns.
 
 272 AMERICAN ELEMENTARY LAW. 
 
 NOTICE. 
 
 Frequently the results of one 's conduct are materially affected 
 by his information or lack of information regarding facts con- 
 nected with the transaction. We are not speaking now of mental 
 condition, as a status, nor of mistake of fact, either mutual or 
 unilateral, by parties to an agreement, as affecting its validity 
 between them, but of information or ignorance by a normal person 
 of facts connected with or involved in a transaction, as this mental 
 attitude affects the rights of third persons. 
 
 These conditions of mind may be classed as follows : knowledge, 
 notice, and ignorance. They are usually treated under two heads, 
 notice and absence of notice. There is a great deal of confusion 
 in the books upon the subject. It is much simpler to use the three 
 heads given above ; and, having once learned to think clearly in 
 these terms, the student can readily test what he sees in the au- 
 thorities by them, and thus clear the situation very greatly. 
 
 Knowledge is actual information of the fact under considera- 
 tion. Whenever a person actually knows a fact he has knowledge 
 of it, and if such knowledge affects his legal rights and duties, he 
 can not ignore the information and avoid its consequences. 
 
 Notice is implied knowledge. It is a state of facts in which the 
 person whose rights and duties are being considered is really 
 ignorant of the facts, but still he is dealt with and his rights and 
 duties determined as if he had knowledge. This implication may 
 be either of law or of fact. 
 
 Implications in Law. — Implications in law exist whenever the 
 law says that under certain conditions all persons shall be con- 
 clusively presumed to know certain facts or when it says that 
 under certain conditions certain persons shall be conclusively pre- 
 sumed to know certain facts. These are legal implications of 
 knowledge. The first is illustrated by the law of registration. 
 For purposes of public policy the law provides a system by which 
 all conveyances of land may be placed in a public record, to which 
 all persons have access. It then says to all persons dealing with 
 land: "You should place your deeds upon this record," and to 
 all other persons that, when a deed is actually placed upon this 
 record according to law. to which they have access, they must 
 examine these records before dealing with the land, and that they
 
 SPECIAL KINDS OF CONDUCT. 273 
 
 shall be held to know just such facts, no more and no less, as they 
 would have discovered by an examination of them. This applies 
 to all persons, and is often called constructive or record notice. 
 
 The second is illustrated by the law's dealing with recitals in 
 deeds under which a person holds property. The deed may have 
 been made years before the present holder had any concern with 
 the property, and he may never have actually seen the deed; 
 but, if it is a part of his title, he is conclusively presumed to have 
 knowledge of what it recites, and is to be judged accordingly. 
 This implication is not general against everybody, as the first is, 
 but is special against those persons only who hold under the deed 
 containing the recital. This is sometimes treated as estoppel 
 by deed. 
 
 These legal implications of knowledge are conclusive, and their 
 consequences are in no wise affected by showing that the person 
 whose rights are being determined was, in fact, totally ignorant 
 on the subject. 
 
 Implications in Fact. — These are based upon such conditions 
 or facts as first create a duty to inquire, and second afford reason- 
 able opportunity for correct information as to the true state of 
 affairs. This is frequently called putting one upon inquiry. 
 Thus, if one person has the legal title to property in him, but 
 another is the real owner, and the first offers to sell it to a third 
 person, knowledge by the third person of the superior right of 
 the second would subordinate the rights he would acquire, by the 
 purchase, to the superior equity of the second ; but ignorance of 
 those rights would, if the purchaser acted in good faith and paid 
 value, destroy such rights as against the purchaser, and he would 
 take the property freed from the claims of the second party ; but 
 if the purchaser had knowledge of such facts, as would be reason- 
 ably sufficient to raise a well-founded belief that the third party 
 did have rights in the property, the law requires him to follow 
 up the suggestion thus made to him, and use reasonable diligence 
 to ascertain the truth ; and if he does not, it charges him with 
 knowledge of all facts which reasonable injuiry would have 
 developed. If he does use reasonable diligence to follow up the 
 suggestion, and can not discover the facts, he has done his duty 
 and is not charged with knowledge. 
 
 It must be observed that the suggestion of right in the third 
 18
 
 274 AMERICAN ELEMENTARY LAW. 
 
 person arises here from facts coming to the knowledge of the per- 
 son sought to be charged with information. These suggestive 
 facts vary with each case, and are to be judged by the testimony 
 as to all the circumstances. After all these facts, as such, are 
 determined, their weight or effect as to suggestion of right in 
 the third person is then to be determined, in order to ascertain 
 the duty of inquiry imposed upon him thereby; and then the 
 nature and extent of the inquiry made, and its sufficiency, are all 
 to be considered. All these are matters for the jury to decide. 
 If they think that the evidence in the case would have put an 
 ordinary man upon inquiry, and that the particular person whose 
 conduct is being considered made no sufficient investigation, he 
 will be charged with knowledge. If either of these is answered 
 in the negative he is not so charged. 
 
 DEATH. 
 
 Death terminates all temporal interests and titles of the de- 
 ceased. He is no longer in a position to enjoy or assert legal 
 rights, or to be subject to legal duties. As a matter of public 
 policy, the law undertakes to regulate the property rights and 
 obligations formerly pertaining to the dead, and to make just 
 provision for passing them, in qualified and modified form, to 
 others. 
 
 So long as a person lives he has a right to the use, enjoyment, 
 and disposition of all his property, and is liable for the payment 
 of all his debts. These debts may be collected from him by suit 
 and judicial sale of all property belonging to him not exempt 
 from execution. The aggregate of his property constitutes his 
 assets, and the aggregate of his debts is the extent of his liability. 
 These debts are not, ordinarily, charges or liens upon his property, 
 but each or all of them may be, or become so, if the debtor shall 
 contract in due form, or if the creditor shall take the necessary 
 action, through the courts, to make them so. So long as any 
 particular thing owned is unencumbered, or uncharged for the 
 payment of debts, the owner may dispose of it, if he does so in 
 good faith. If it be encumbered, or subject to a lien, the sale 
 or disposition of it would not relieve it of the lien, unless the 
 money received were used to pay off the debt, or the purchaser
 
 SPECIAL KINDS OF CONDUCT. 275 
 
 were one in good faith, for value and without notice of the lien. 
 So long as the person lives, his power of disposition over his 
 property continues, and, under the law as to Wills, he may most 
 frequently make a disposition of it to become effective at his death. 
 This we will consider later. All the property one owns at his 
 death constitutes his estate, and all the debts he owes at his 
 death are collectible out of this estate, if there be sufficient to pay 
 them after satisfying the needs of the Surviving members of the 
 family of which the deceased constituted the head. 
 
 To a limited extent the family is recognized in law as having 
 legal existence. Claims of kinship are also recognized, even 
 though the relationship be not such as to make the persons be- 
 tween whom it exists members of the same family, legally speak- 
 ing. 
 
 Taking the foregoing into consideration, we find that death 
 has the following effect upon legal rights and duties : 
 
 (1) It removes the deceased from the jurisdiction of all gov- 
 ernmental agencies. They can no longer regulate his conduct, 
 nor at his instance enforce any rights or legal liabilities. 
 
 (2) Death terminates all rights and ends all duties which are 
 strictly personal in their nature. It does not destroy property 
 rights, nor rights against others, nor duties due them, which are 
 liquidated and vested. At Common Law it destroyed all remedial 
 rights, and their correlative duties, which were based upon viola- 
 tion of personal rights, but not those based upon violation of 
 property rights. Under the statutes, in many States, these rules 
 are much modified, and now many remedial rights, based upon 
 violations of designated personal rights, survive. These statutes 
 are not uniform, and an attempt at classification would not be 
 profitable here. 
 
 (3) Upon the death of a person, all of the property which be- 
 longed to him, taken together, constitutes the assets of his estate, 
 and all debts due by him, and all remedial rights existing against 
 him, and which survive his death, constitute the liabilities of his 
 estate. 
 
 (4) All persons not under disability, and all married women, 
 are authorized to dispose of their assets by will, duly executed, 
 and pass their titles to such persons as they may designate, and 
 are also authorized to nominate one or more persons to take charge
 
 276 AMERICAN ELEMENTARY LAW. 
 
 of the assets, and manage and dispose of the estate as the will 
 provides. 
 
 (5) If the property of the deceased is not disposed of by- 
 legal will it does not thereby escheat, but passes to those per- 
 sons named by law as heirs, to be taken and held in such pro- 
 portions as the law directs. In determining who shall be heirs, the 
 law gives preference to the members of the immediate family of 
 the deceased, and, if there are none such, then to more remote 
 kindred. If there be no kindred within the degrees of relation- 
 ship designated as heirs, the property escheats to the State. 
 
 (6) The rights in these assets taken under a will, or by inher- 
 itence, or by escheat, are subject to the just debts and liabilities 
 of the deceased, and also to certain statutory rights of the family, 
 if there be one, and the devisee or heir is not entitled to im- 
 mediate use and enjoyment of the property, in contravention of 
 these rights of creditors and the family, if one exist. 
 
 (7) If there be neither creditors nor family, the devisees, or 
 heirs, as the case may be, are entitled, at once, to the beneficial 
 enjoyment of their respective estates. In the case of heirs, this 
 right extends to the distributive share in the whole assets, taking 
 such title as the deceased had. In the case of will, the estate, 
 being devised through the will, is, of course, measured by its 
 provisions. 
 
 (8) It results, from the foregoing, that, if there be no debts 
 or claims against the estate and no will, there is a simple and 
 direct passage of the decedent's title and assets to his heirs, and 
 no governmental intervention is necessary. 
 
 (9) If there be debts and liabilities, there is no one charged 
 particularly with paying them, and as the estate, except such 
 assets as are exempt by law, is subject to these debts, it follows 
 that the interests of all parties require the appointment of some 
 suitable person to take charge of the assets, manage and control 
 them, and apply so much of them as may be necessary to their 
 discharge. This is accomplished by proceeding in a court having 
 jurisdiction over such matters, frequently called a probate court. 
 This court appoints a suitable person to take charge of and man- 
 age the property, under the supervision and control of the court ; 
 to apply its assets to the several claims against the estate, in the
 
 SPECIAL KINDS OP CONDUCT. 277 
 
 order directed by law; to pay over and deliver the balance to the 
 devisees, in case of a will, and to the heirs, when there is no will. 
 
 This process of controlling, applying, and distributing the 
 estate is called an Administration. When the person in charge is 
 named in the will, he is called an executor ; where there is no will, 
 and he is selected and appointed by the court he is called an ad- 
 ministrator. 
 
 If there are no debts against an estate, administration may still 
 be necessary, if there be a will. Every will is an instrument 
 changing the course of legal transmission of title ; that is, in the 
 absence of a will, designated classes of persons inherit the estate ; 
 and, therefore, if a will be made making a different disposition of 
 the assets, or any of them, the title of the devisees under the will 
 depends upon the existence and terms of the will, and not upon 
 the general rules of inheritance, as applied to the particular case. 
 It is, therefore, necessary to have the genuineness and effect of the 
 will judicially ascertained and declared, before any one could be 
 fully authorized to carry it out, or assert rights under it. And 
 for these purposes the probate courts may take cognizance of es- 
 tates and the rights of devisees therein. In an administration of 
 this kind, the court compels the recognition and adjustment of all 
 proper claims against the deceased, and construes the will and 
 determines the powers and duties of the executor and the rights of 
 devisees thereunder. The court will retain jurisdiction over the 
 estate, so long as it may be necessary to protect the legal rights of 
 all persons, and then require the delivery of the property to those 
 entitled under the will, or under the general law when the will 
 does not apply. 
 
 (10) In the administration of estates, in several of the States 
 of the Union, the family of the deceased, if there be one, is recog- 
 nized as having certain rights in the assets. Sometimes these are 
 superior to the rights of creditors ; sometimes they are not.
 
 CHAPTER XII. 
 
 SOME SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES. 
 
 There are many special relations which may exist between or 
 among individuals, which give rise to, modify, or destroy legal 
 rights. These relations are of various kinds and it would be im- 
 practicable to undertake to deal with each class separately. The 
 discussion under this heading will be confined to the more im- 
 portant personal relations leaving those which grow out of or are 
 directly connected with rights in particular things which will be 
 considered under the head of property, and those which involve 
 matters in which the public has a special interest which will be 
 treated under the head of Public Utilities. 
 
 The three most important classes of personal relations are : 
 
 (1) Domestic Relations. 
 
 (2) Those involving Substitution. 
 
 (3) Those involving Co-operation or Community of Interest. 
 
 DOMESTIC RELATIONS. 
 
 Under this head we will treat of marriage and the family, hus- 
 band and wife, parent and child, and guardian and ward. 
 
 It is customary to place master and servant in this group. For- 
 merly, when the great majority of servants had their homes and 
 rendered their services in and with the family of the master, this 
 was fairly accurate. Under present conditions the duties and 
 services rendered by employees in connection with business ac- 
 tivities are so much more important and receive so much more 
 attention from the law than those which are truly of domestic 
 nature that the classification has become confusing if not mis- 
 leading. Master and servant will, therefore, be considered in the 
 second group, Relations involving Substitution. 
 
 Marriage and the Family. — The proper basis for all domestic 
 relations is the marriage agreement and the resulting social and 
 legal institution called the family. This institution lies at the 
 foundation of all well ordered social and governmental stability 
 and right development. Without the family and the home neither
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 279 
 
 social order nor political liberty is possible. The family is the 
 unit of all civilization and from it all larger social and political 
 organizations develop. 
 
 Marriage presents five different aspects: 
 
 (1) A contract between the parties. 
 
 (2) A religious institution. 
 
 (3) A civil institution. 
 
 (4) A combined religious and civil institution. 
 
 (5) A status. 
 
 Each of these views is true from its own standpoint 
 
 The law, in its ordinary treatment of the subject, regards mar- 
 riage as a status established by contract of competent parties, 
 sanctioned by the government, and which can not be destroyed 
 by act of the parties without the consent of the State. 
 
 Common Law Marriage. — An agreement in pr&senti between a 
 man and a woman, not disqualified, that they are now man and 
 wife, accompanied by cohabitation, is sufficient to constitute mar- 
 riage at Common Law. The parties must be competent, though 
 competency does not have the same tests as ordinarily. The intent 
 must be to be man and wife. It must be a present intent, that is, 
 an agreement that they then and there are and are to remain man 
 and wife, and there must be a cohabitation, or living together in 
 the same house as man and' wife. Such marriages are good in 
 most of the States. 
 
 Statutes Regulating. — Marriage is primarily a matter of local 
 or State concern. Its results in some regards may be far-reaching 
 and incidentally involve social and legal rights and relations out- 
 side of the State in which the marriage is contracted or in which 
 the family has its home. These latter matters are incidental 
 merely. 
 
 This fact is recognized in the organization of our State and 
 Federal governments and the right of control over, and the power 
 to regulate marriage and marital relations were not given over 
 to the Federal Government but were reserved to the several States. 
 Marriage is, therefore, directly under the control of the several 
 State Governments, the Federal Government having no power 
 to deal direct with the subject. Congress cannot legislate on the 
 subject, nor can the Federal Courts deal directly with marital 
 rights, though they may hear and determine issues otherwise
 
 280 AMERICAN ELEMENTARY LAW. 
 
 properly within their jurisdiction, notwithstanding such decisions 
 may involve and require the determination of marital questions. 
 
 In each of the States of the Union there are statutes regulating 
 marriage. Such statutes usually cover two distinct subjects ; first, 
 the competency of parties to enter into the marriage relation ; and 
 second, the manner and conditions under which the ceremony 
 may be performed. 
 
 The provisions of such statutes determining the competency 
 of parties are mandatory, and persons who do not possess the 
 designated qualifications cannot lawfully marry within the State 
 where the statute is in force, either according to the Common Law 
 or in compliance with the statutory provisions. 
 
 The provisions of such statutes as to the manner of celebrating 
 marriage ceremonies are usually directory merely. Ordinarily 
 these provisions deal with two matters. First, they, designate 
 the persons by whom marriage ceremonies may be performed, who 
 usually are specified officers of the law and ministers or priests 
 of the various religious denominations. Second, they provide for 
 the keeping of public records of the marriages performed by is- 
 suance of a license and filing the same, together with an indorse- 
 ment by the person performing the ceremony, showing when 
 and where and by whom the marriage was performed, in the 
 archives of some public office. 
 
 While statutes as to the method of celebrating the rites of matri- 
 mony are usually regarded as directory merely and not prohibit- 
 ing or invalidating Common Law marriages within the State, 
 still it is within the power of the Legislature to make such provi- 
 sions mandatory and exclusive. "When this is done Common Law 
 marriage within the State would be unlawful and would not be 
 recognized by the courts. 
 
 The general rule of law, subject to a few important exceptions, 
 is that a marriage valid in the State or country in which it takes 
 place is valid everywhere. The principle exceptions to this rule are 
 first cases in which marriage between parties who have attempted 
 to enter into that relation is not only forbidden by the laws of the 
 State into which the parties move, subsequent to the marriage, 
 but is also made a criminal offense, and second, cases in which the 
 recognition of the marriage in the latter State would interefere 
 with and overthrow the recognized legal rights of some citizen of 
 the latter State.
 
 SPECIAL RELATIONS AFFECTING LEGAL. EIGHTS. 281 
 
 Competency of Parties. 
 
 The parties must be respectively male and female; all such 
 parties are competent, except those subject to some one or more 
 of the following impediments or disabilities: 
 
 (1) Non-age. In males, under 16; in females, under 14. 
 
 (2) Physical defects. These must be natural and incurable 
 defects existing at the time of the marriage. 
 
 (3) Prior subsisting marriage. 
 
 (4) Want of mental capacity. 
 
 (5) Relationship within the prohibited degrees. 
 
 Effects of Marriage. 
 
 (1) It changes the status of each of the spouses, and they are 
 no longer single persons, but are husband and wife. 
 
 (2) It combines them in a family, or institution, of which the 
 husband is the head, his powers and responsibilities varying in 
 different States and countries. 
 
 (3) Their cohabitation thereafter is lawful, and each is legally 
 entitled to the consortium of the other. 
 
 (4) Children born to them are legitimate. 
 
 (5) They are thereafter entitled to certain rights, such as 
 homestead exemption, etc., which single persons can not acquire. 
 
 (6) At Common Law all the personal property of the wife, 
 and all her choses in action which are reduced to possession dur- 
 ing the marriage, are vested in the husband. It gives him the 
 right to use and enjoy her real estate during the marriage, and, 
 under some circumstances, gives him an interest in it after his 
 wife 's death, known as the estate by courtesy, and makes him re- 
 sponsible for all the wife's ante-nuptial debts, and for all torts 
 committed by her during coverture. 
 
 As to the wife, it deprives her of all her personal property, 
 including her choses in action, which the husband takes into pos- 
 session ; subjects her real property to use of the husband ; gives 
 her an estate in portions of his lands after his death, called her 
 dower, and destroys her right and power to make contracts for 
 herself. She is entitled to support and maintenance from him, 
 and when he fails to furnish these, she is his agent to procure 
 them. 
 
 These Common Law results of marriage have been very greatly 
 modified by legislation in the respective States. The provisions
 
 282 AMERICAN ELEMENTARY LAW. 
 
 of these statutes vary too greatly to attempt even to summarize 
 them. They extend from slight ameliorations of the woman's 
 condition in a few specified respects to enlargements of her rights 
 so extensive as to put her almost on business equality with man. 
 
 These enlargements, however, relate in the majority if not 
 all the States to two general subjects; first, the capacity to hold 
 property; and second, the capacity to enter into contracts. In 
 legal theory at least the husband still remains the head of the 
 family, with power to determine all questions which do not relate 
 to the separate rights of the wife. 
 
 (7) Marriage is a status. That is, it is a continuing condition, 
 which when once established can not be changed at the will of the 
 parties. While marriage always results from agreement, no 
 simple agreement of parties, unrecognized and unsanctioned by 
 law, can establish the relation. As the law's recognition is 
 essential to its establishment so its approval and action is neces- 
 sary to its ending, during the life of the contracting parties. 
 
 Death is everywhere recognized as severing the marital tie. At 
 Common Law and in almost all the States the surviving spouse is 
 recognized as having rights and interests in the estate of the de- 
 ceased spouse but in none of these jurisdictions is there any in- 
 hibition against the remarriage of the survivor. 
 
 (8) Another of the results of marriage is the establishment of 
 a family. A family may be defined as : A legal institution, con- 
 sisting of a number of persons between or among whom there ex- 
 ists the legal right to demand support and maintenance on the 
 part of some and the legal duty to provide support and mainte- 
 nance on the part of the other or others, which rights and duties 
 arise from status and not from contract. 
 
 The normal family has its origin in marriage, and consists of a 
 husband and wife and children dependent upon them. Collec- 
 tions of individuals may vary from this normal type, and still be 
 recognized as a family; thus, the husband or wife may die, or 
 there may be no children, and the family still exist. Or, if a son 
 cares for his widowed mother, who lives with him, they constitute 
 a family. In all of these cases, there are several persons bound 
 together by ties of kinship, the one owing the legal or moral duty 
 to support the other arising out of such relationship. It is this 
 relationship, giving rise to and sustaining this duty of support,
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 283 
 
 which is called status in the definition above given. If there be 
 no such status, but two or more persons agree to live together, 
 the one to work for and maintain the other, they would not con- 
 stitute a family; for the basis of the relations between them 
 would be contractual not static. If the agreement were marriage, 
 of course status would result thereupon, and a family would exist. 
 The distinction between families and other groups of persons 
 living together should not be lost sight of for it is frequently 
 quite important in determining the legal rights and duties of the 
 persons constituting the group among themselves as well as be- 
 tween the group or its different members and third persons or 
 the public. 
 
 Liabilities of One Spouse for Acts or Omission of the Other. 
 
 Criminally. — Neither spouse is responsible for the criminal 
 conduct of the other, unless participated in by the one sought to 
 be charged. There were presumptions at Common Law as to 
 coercion of the wife when the offense was committed in the pres- 
 ence of the husband, but these can not now be said to be presump- 
 tions of law, but are matters for the jury. Neither can be com- 
 pelled to testify in a criminal cause against the other, except in 
 cases where the offense was committed against the witness. In 
 civil suits they are not excused from testifying, except as to con- 
 fidential relations, which can never be elicited, except in criminal 
 cases when of advantage to the party accused. 
 
 Torts. — The husband alone is responsible for torts committed 
 by him, though, as the community property may be taken to pay 
 judgments against him, the wife usually suffers with him. Hus- 
 band and wife are jointly and severally liable for torts of the 
 wife, unless the wife were under duress by the husband, in which 
 case, contrary to the general rule, she is excused. 
 
 Miscellaneous Effects. — Ordinarily the domicile of the husband 
 is the domicile of the wife. An alien woman marrying a citizen 
 of the United States becomes a citizen, but a citizen marrying an 
 alien does not lose her citizenship. 
 
 Upon the death of either spouse the other has preference in 
 administering the state, which may be taken out regularly as by 
 any one else, or may be a community administration. 
 
 During marriage the husband primarily has the right to the
 
 284 AMERICAN ELEMENTARY LAW. 
 
 custody of the children, but this is now of little moment, as the 
 courts will do what they deem best for the children. 
 
 Divorce. — The Common Law and the law of all the States with 
 the exception of South Carolina recognize divorces, properly ob- 
 tained through governmental agencies. In some States divorces 
 may be granted either by the Legislature or through the courts, 
 but in most of them the function is recognized as exclusively ju- 
 dicial and divorce can only be obtained by proper judgment of a 
 competent court. 
 
 At Common Law there were two kinds of divorce, one from the 
 bonds of matrimony, the other from bed and board. The former 
 is a complete dissolution or annulment of the marriage bond re- 
 storing to each spouse, respectively, the status of a single person; 
 the latter does not completely annul the marital relation but pro- 
 vides for and legalizes the living apart of the the spouses, modi- 
 fying and adapting their property and contractual rights and 
 powers to the peculiar condition in which they are situated. 
 
 The grounds upon which a judgment of divorce may be based, 
 the nature of proceedings necessary to obtain such a judgment, 
 and the adjustment of the property rights of the spouses and 
 their respective relations to and rights regarding their children 
 are regulated by the statutory provisions in the different States. 
 
 Actions for divorce affect the status of parties and hence are 
 usually regarded as proceedings in rem. 
 
 Where both parties are bona fide residents of the State in 
 which the divorce proceedings are instituted it is universally con- 
 ceded that the court can enter a decree of divorce which must be 
 recognized as of full force and effect at any time and in any tri- 
 bunal in which the question may arise. 
 
 It is equally well settled that if either spouse is a bona fide 
 resident and brings suit against the other and gets service on him 
 or her within such State or if the defendant voluntarily submits 
 himself or herself to the jurisdiction of the court, the court can 
 render a decree of divorce which will be good everywhere. 
 
 When we pass from cases in which there is personal service on 
 the defendant in the State or voluntary appearance by the de- 
 fendant to those in which jurisdiction over the defendant is de- 
 pendent on some kind of extra-territorial service we encounter 
 doubt and un certainty.
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 285 
 
 According to the great weight of authority among the State 
 courts and, as had been commonly believed, according to the de- 
 cisions of the Supreme Court of the United States until recently, 
 the proper court of a State in which either of the spouses is a 
 bona fide resident could grant decrees of divorce which must be 
 respected everywhere even though the service was by publication. 
 However, in a recent case, Haddock v. Haddock, the Supreme 
 Court of the United States has held that the judgment of a court 
 of a State in which the plaintiff in a divorce proceeding is bona, 
 fide citizen, but in which the spouses had never lived together as 
 husband and wife when based upon extra-territorial service, is 
 not binding upon and need not be recognized by the courts of an- 
 other State. 
 
 The distinction made between this and other decisions by that 
 court which had recognized the validity of divorce granted 
 against a non-resident defendant in a State Court served by pub- 
 lication is based upon the locality of the marital domicile. The 
 court held, first, that if the spouses lived together as husband and 
 wife in a certain State, and the one abandoned the other and left 
 such State, that the continued residence of the abandoned spouse 
 in such State coupled with the fact that the last marital domicile 
 was there gives to the courts of such State jurisdiction over the 
 res involved in the litigation, and second, that simple residence in 
 a State, no matter how bona fide or how long continued, does not 
 give the court jurisdiction over the res, and the decree of divorce 
 based on extra-territorial service and granted by a court of the 
 State in which the parties have never lived together as husband 
 and wife, is not legally binding upon the courts of other States. 
 
 If this decision is to be taken as final the law with reference to 
 the effect of divorces granted in cases in which the service is ex- 
 tra-territorial it seems may be stated thus : 
 
 (1) The courts of the State in which both spouses reside may 
 grant decrees of divorce that will be valid everywhere. 
 
 (2) If the parties do not live in the same State, the one con- 
 tinuing to reside in the State where they last lived together as 
 husband and wife, and who is a bona fide inhabitant of said State 
 may obtain a divorce therein which will be binding everywhere, 
 whether supported by personl service within the State, voluntary 
 appearance of the defendant or extra-territorial service.
 
 2S6 AMERICAN ELEMENTARY LAW. 
 
 (3) If the spouse who has abandoned the State of the last 
 marital residence and has become a bona fide inhabitant of some 
 other State, procures a divorce in the latter State based on per- 
 sonal service within the State or voluntary appearance of the de- 
 fendant it will be good everywhere, but if it is based upon extra- 
 territorial service it will be good within the State where rendered 
 and within such other States as recognize it voluntarily, but no 
 other State is compelled by the Constitution of the United States 
 to recognize the divorce. 
 
 (4) If upon or after separation both parties remove from the 
 State of the last matrimonial domicile, that a divorce granted to 
 either in the State of his or her residence will have only such 
 effect as stated in paragraph three. 
 
 "What will be the effect of Haddock v. Haddock upon the State 
 courts and the extent to which it will be followed by them cannot 
 now be stated. 
 
 The case aroused much adverse criticism by the bar. Whether 
 this view is concurred in by the bench remains to be seen. 
 
 If we leave the case of Haddock v. Haddock out of considera- 
 tion the rules as established by the great weight of authority in 
 the State courts prior to the rendering of that decision, are sub- 
 stantially as follows : 
 
 (1) The law in cases coming under paragraph one above is the 
 same as stated therein. 
 
 (2) The law as stated in paragraph two above is as stated 
 therein. 
 
 (3) The law in cases covered by paragraph three would differ 
 from the statement made therein and divorces gotten under con- 
 ditions stated in that paragraph are good everywhere without 
 reference to the kind of service. 
 
 (4) The law as to cases covered by paragraph four would dif- 
 fer from the statement made therein and divorces granted under 
 the facts set out therein would be good everywhere without refer- 
 ence to the kind of service. 
 
 Stating the matter more briefly, before the case of Haddock v. 
 Haddock was decided, the law, as declared by the great weight of 
 American authority, was to the effect that each State owed the 
 duty to each of its bona fide resident inhabitants to determine 
 conclusively his or her marital status and that the existence of
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 287 
 
 this duty carried with it the power necessary to its performance 
 and that its exercise was not affected or limited by the fact that 
 declaring the status of such bona fide inhabitant involved the 
 declaration of the status of a non-resident, and hence a decree of 
 a State court granting a divorce to a bona fide resident of the 
 State though based on extra-territorial service was absolutely 
 valid and entitled to recognition everywhere. 
 
 Second, the case of Haddock v. Haddock limits the foregoing 
 proposition and declares that the bona fide residence of one 
 spouse within a State does not give such State or its courts com- 
 plete jurisdiction over the res involved in a divorce proceeding. 
 That while the court has sufficient jurisdiction to grant the de- 
 cree which must be respected within that State, such a judgment 
 is not of universal obligation. That to give complete jurisdiction 
 over the res, not only must one of the spouses be a bona fide in- 
 habitant of the State where the suit is brought but the marital 
 domicile of the parties must also have been within the State, and 
 unless these facts concur the judgment of divorce is not entitled, 
 as a matter of law, to recognition outside of the State wherein it 
 was rendered. 
 
 Husband and Wife — This has been sufficiently presented in 
 discussing marriage and its effects and will not be further 
 treated. 
 
 Parent and Child. 
 
 The next special relation which we will consider is parent and 
 child. This is altogether independent of any contract between 
 the immediate parties. It is a natural one, that has ever existed 
 and must ever exist in all continuing communities. Sovereignty 
 must take cognizance of it, and make some rules for its govern- 
 ment. Children are of two kinds: natural and civil or by adop- 
 tion. 
 
 Legitimate Children. — These are natural children born in law- 
 ful wedlock. They have the highest rights and privileges 
 accorded to this relationship. They are entitled to the care and 
 protection of their parents, and to support and education during 
 minority. 
 
 These rights are, to a great extent, incapable of effective en- 
 forcement through the law. This is usually expressed by saying 
 that the correlative duties owed by the parent are of imperfect
 
 AMERICAN ELEMENTARY LAW. 
 
 obligation. Still, the duties are recognized to the extent that, if 
 the parent performs them, he has no right to compensation from 
 the child; and this is true even in cases where the parents are 
 poor and the child rich. 
 
 If the father does not perform the duty of maintenance, he is 
 bound for necessaries furnished the child. Some of the authori- 
 ties put this upon the ground of implied agency on the part of 
 the child, but even these make the father practically liable. The 
 cases are not quite so strong when the father is dead and the 
 mother is sought to be held liable. Here the relative conditions 
 and positions of the parties must be considered, but usually some 
 way is found to hold the mother for necessaries, unless it is ap- 
 parent that the credit was extended to the child personally. 
 Even when the father is sought to be held, he will be entirely re- 
 lieved by proof that the credit was extended to the child. This 
 duty of maintenance ceases when the child attains majority. 
 This occurs, with a male at the age of twenty-one years, for the 
 female on attaining that age, or upon marriage; though, even 
 after that, benefits conferred by the parent on the child are 
 prima facie voluntary, and will not of themselves create an im- 
 plied contract for compensation. The duty may also be termin- 
 ated by manumission, or freeing the child, and putting him on 
 his own resources. 
 
 The rights of the parent against the child are the right of rea- 
 sonable government and control, and the right to his services 
 during his minority. The control must be exercised reasonably 
 in view of all the facts and circumstances of the case, and may be 
 enforced by reasonable and appropriate remedies, including per- 
 sonal chastisement. 
 
 A child owes to the parent obedience and respect, and must 
 render for him such proper services as the parent shall demand. 
 The parent can hire the child to other proper persons to perform 
 proper services, and the wages earned will belong to the parent. 
 The State, however, has the right to regulate such employment of 
 children and prevent hiring to improper persons, or for improper 
 purposes, or unlawful occupations, or unreasonable hours. These 
 comprise the principal rights and duties between the parties in- 
 cident to the relation. 
 
 The relation, however, carries with it certain rights and duties
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS. 289 
 
 between the parties to it and third persons. Some of these have 
 been considered, such as the liability of the parent for necessaries 
 for the child, and duty of the child to carry out contracts of em- 
 ployment made by the parents. But, taking these up again, we 
 find: 
 
 (1) Neither the parent nor the child is, by reason of the rela- 
 tionship, responsible for the crimes of the other. 
 
 (2) Neither is on that account responsible for the torts of the 
 other. 
 
 (3) Neither is responsible for the contracts of the other, ex- 
 cept the parent for necessaries furnished the child on the par- 
 ent's credit, and the child for the parent's contract of hiring the 
 child to render reasonable service. 
 
 Illegitimate Children. — These are natural children born out of 
 wedlock. If the child be born immediately after the marriage it 
 is still regarded as legitimate. If it be born after the marriage 
 ends but within the period of gestation it is regarded as born 
 during wedlock and is legitimate. A child born during the mar- 
 riage of the parents is presumed to be legitimate. This presump- 
 tion can only be overthrown by facts which show to a moral cer- 
 tainty that there was no opportunity of access by the husband to 
 the wife. If such opportunity exists proof will not be heard to 
 show that cohabitation did not in fact occur between husband 
 and wife. 
 
 In many States by statute subsequent marriage of the parents 
 of illegitimate children renders the children legitimate. This was 
 not the rule at Common Law. 
 
 At Common Law an illegitimate child did not inherit from any 
 one, no matter what the relationship. He had no right of mainte- 
 nance or education against the father, though if the father actu- 
 ally supported him or expended money on him in any way, no 
 implied promise arose of repayment. He had an imperfect right 
 to maintenance against the mother which, under some circum- 
 stances, would be enforced in his behalf by proper public officers. 
 
 Children by Adoption. — Adoption is the process by which one 
 person receives and accepts the child of another to be his or her 
 child or heir. 
 
 Strictly speaking, adoption was not known to the Common 
 Law. In the United States it is a matter of State regulation de- 
 pending upon statutory enactment. 
 19
 
 290 AMERICAN ELEMENTARY LAW. 
 
 The most ordinary method of procedure under these statutes 
 is by petition to some designated court giving notice to the parent 
 or parents of the person sought to be adopted if living and upon 
 hearing having a decree entered by the court declaring the fact 
 of adoption and the rights and liabilities of the parties incident 
 thereto. These rights and liabilities must be such as the statute 
 in the particular State provides. Usually the person adopting 
 assumes substantially the duties and acquires substantially the 
 rights of parent, and the person adopted, those of child. 
 
 The extent to which inheritance will follow adoption depends 
 upon the statute under which the action is taken. Usually the 
 adopted person will inherit from the one adopting as though a 
 natural legitimate child and the one adopting will inherit as if 
 the parent. Ordinarily the fact that a person has been adopted 
 into one family does not prevent or interfere with his inheritance 
 from his natural parents or other relations. Not infrequently the 
 statutes provide that if the person adopted inherits anything 
 from the adoptive parent, upon his death the property so re- 
 ceived shall revert to the heirs of the adoptive parent and not to 
 the heirs of the person adopting him. 
 
 The general rule is that adoption having been effected in ac- 
 cordance with law, the status thus acquired cannot be revoked nor 
 changed by the parties. 
 
 Usually upon the adoption of a child, the right to its custody 
 and control passes to the adoptive parent, though under some 
 statutes this is not a necessary result. 
 
 Under some statutes adoption to the extent of making the 
 party adopted an heir of the person adopting him may be ac- 
 complished by the party adopting filing with the proper officer a 
 written instrument executed with the same formalities as a deed 
 for the conveyance of land. It does not seem to be necessary to 
 have the assent of the party adopted or of his parents to give 
 effect to such an instrument. Under these statutes the parents 
 of the person adopted by an instrument in writing executed as 
 required in case of deeds to land may transfer their parental 
 authority and custody over the child to the party adopting him. 
 Such transfer, when accepted by the transferee, passes over the 
 parental control and custody from the parents to the person 
 adopting him. Such transfer, contrary to the general rule of 
 public policy, is irrevocable.
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS. 291 
 
 Transfers of Parental Authority. — Not infrequently parents 
 attempt to transfer their parental rights and duties as to their 
 children to third persons without complying with the statutory 
 provisions regulating such matters. Parental rights and duties 
 are not recognized as assignable at Common Law and unless sup- 
 ported by statute such transfers are non-enforceable but are re- 
 vocable at the will of the parent. Such agreements are not con- 
 tracts but are regarded as licenses which protect the persons act- 
 ing under them from legal liability to the parents for the deten- 
 tion and exercise of control over the child prior to revocation by 
 the parent. If the party having the custody of the child under 
 such an agreement refuses to deliver the child to the parent on 
 demand the parent can maintain an action of habeas corpus for 
 the child and recover its custody. . The foregoing is the rule of 
 law in the absence of proof showing the parent to be an improper 
 person to have charge of the child. If proof of that sort is made 
 the court will make such disposition of the child as its interests 
 require. 
 
 Guardian and Ward. — A guardian is a person who is legally 
 entitled to the custody of the person, or estate, of a living person 
 who is laboring under some legal disability, and who is called a 
 ward. The most frequent disabilities of this kind are minority, 
 mental unsoundness, and habitual drunkenness. 
 
 The parents, first the father and, in his absence, the mother, 
 are the natural guardians of the persons of their minor children, 
 but not of their estates. The latter are appointed by the proper 
 court, preference being given to the father, and then to the 
 mother, unless, in the particular case, there be some reasonable 
 objection. 
 
 In case of the death or disqualification of the parents, the 
 proper court will appoint a guardian for the persons of the minor 
 children, and if the children have property for which no guard- 
 ian has been previously appointed, of their estates also. 
 
 The guardian of the persons of minor children, whether their 
 parents or one appointed by the court, has the right to the cus- 
 tody of the children and to reasonable control over them. The 
 parents, as natural guardians of their persons, are not primarily 
 subject to the control of any special court, but any guardian ap- 
 pointed by a court, either of the person or estate, is strictly un-
 
 292 AMERICAN ELEMENTARY LAW. 
 
 der the control of the court appointing him, and must manage 
 both the minor and his estate as the court may direct. 
 
 When a parent is guardian of the estate of his child, he is held 
 to the same responsibility as to the property as any other person 
 would be. He may spend of his own estate on his child as he sees 
 fit, but he can not spend the property of the child except as the 
 law permits. Primarily, the parent is required to support and 
 educate his child from the parent 's estate ; but, if this is not 
 practicable, he is usually permitted to expend for the child's 
 maintenance and education the income of the child's estate, but 
 can not go beyond that without authority from the court. If he 
 does so, only in rare cases of extreme emergency will the court 
 permit him to reimburse himself from the child's estate. The 
 guardian must keep strict accounts and make reports at stated 
 times as to his management of the property. If he desires to sell 
 any of the ward's property, he must submit the facts to the court 
 and get an order from it, or he can not do so. 
 
 These general rules apply to other guardianships, as of insane 
 persons or habitual drunkards, and these need not be further 
 considered.
 
 CHAPTER XIIL 
 
 SOME SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES 
 
 (CONTD.) 
 
 RELATIONS INVOLVING SUBSTITUTION. 
 
 In our study of conduct, under the head of law, as heretofore 
 presented, there are certain relations in which one person substi- 
 tutes another for himself in the exercise of some power, the en- 
 joyment of some right, or prosecution of some enterprise, and 
 that, to the extent of substitution, the latter becomes the other- 
 self of the former, who thereupon becomes legally entitled to all 
 the benefits arising from his conduct in that behalf, and, as to 
 third parties, subject to all liabilities incident thereto. The two 
 principal relations in which this doctrine of substitution applies 
 are master and servant, and principal and agent. 
 
 Master and Servant. 
 
 A master is one who employs another to do for him and under 
 his direction something which does not involve the master's 
 power to enter into contractual relations. 
 
 A servant is one who undertakes to do for another and under 
 his direction something which does not involve the master's 
 power to enter into contractual relations. 
 
 The relation, it is said, always depends upon contract between 
 the parties. It is more accurate to say that it always depends 
 upon agreement. For the rule holds good here as elsewhere 
 that performance validates a voluntary executory agreement, 
 hence an agreement to serve which lacks consideration and is 
 therefore legally non-enforceable will still be good to fix the re- 
 lation of master and servant provided it be actually performed 
 by the rendering and acceptance of service. Still agreements of 
 this sort are so uniformly supported by consideration that we 
 will deal with the relation as based upon contract, noting the 
 deviations from the rule stated, if any, which apply to the cases 
 of voluntary service.
 
 294 AMERICAN ELEMENTARY LAW. 
 
 The relation is never imposed by law. Legal subjection of one 
 person to another whereby the former is made to serve the latter 
 no longer exists in the United States. Involuntary servitude ex- 
 ists only where it is exacted as a penalty for crime and the rela- 
 tions between the government and its officers, on the one hand, 
 and persons working out sentences for crime, on the other, are 
 not those of master and servant. 
 
 Under the contract in its ordinary forms the master under- 
 takes to employ the servant and pay him either specified or rea- 
 sonable wages and superintend the work and the servant under- 
 takes to render the required service with reasonable faithfulness 
 and efficiency and obey the directions of the master. 
 
 It is sometimes quite difficult to distinguish this relation from 
 that of principal and agent or of employer and independent con- 
 tractor. 
 
 According to the later and better authorities, the principal dif- 
 ference between a contract of service and one of agency is that 
 under the latter the agent is authorized to exercise his employer's 
 capacity to contract, while under the former no such authority is 
 conferred upon the servant. 
 
 The distinction between the relation of master and servant and 
 of employer and independent contractor consists chiefly in the 
 fact that the master controls and directs the servant, not only as 
 to the general results to be accomplished, but in the details neces- 
 sary to bring about the result. As to all these matters, the 
 master's will is dominant and the servant is but his substitute or 
 instrument through which he performs his work. The independ- 
 ent contractor, on the other hand, as the term implies, ascertains 
 from his employer the results that he desires accomplished and 
 undertakes to bring these about by his own independent means 
 and responsibility. In this relation there is no domination of 
 the contractor by the employer but independent action by the 
 contractor leading to personal responsibility on his part. 
 
 This distinction may be made clearer by an example. If a per- 
 son owns a lot and desires to build a house on it he may pursue 
 one of two methods in doing so. He may buy the material and 
 employ workmen and direct the work himself; or, he may adopt 
 plans and specifications and employ a builder who will himself 
 undertake to provide all material and labor and complete the
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 295 
 
 house according to specifications and deliver it to the owner in a 
 finished condition. If the owner adopts the first of these 
 methods, the relation between him and the men whom he employs 
 to do the work on the house under his control and direction 
 would be that of master and servant. If he adopts the second 
 method, the builder who undertakes to construct the house at his 
 own expense without supervision or control except such as may 
 be necessary to insure that he complies with the contract, would 
 be an independent contractor. In this case the owner would have 
 no authority to select the workmen or to control or direct them 
 in the work. His sole right in the matter would be to see that the 
 builder complied, at the builder's own expense and through 
 workmen employed and selected by him, with the terms of the 
 building contract. In the one case the owner acts by and through 
 the servant as his substitute ; in the other, he employs the builder 
 to accomplish designated results through the builder's independ- 
 ent and uncontrolled action. 
 
 Who May Be. — As the relation of master and servant grows 
 out of agreement, any person who may make other contracts may 
 agree to become either master or servant. Persons under legal 
 disability are very often found in one or the other of these posi- 
 tions. So frequently is this the case and so important it is that 
 they be permitted to sustain one or the other of these relations 
 that it sometimes seems that there is a relaxation of the rules of 
 law as to contractual power in such agreements. It is possible, 
 however, that these cases are not real relaxtions but may be ex- 
 plained either on the ground of contracts for necessities, or of the 
 validation of a non-enforceable promise by performance, or in 
 the case of married women, on the ground of implied agency or 
 agency by necessity for the husband. So we may fairly state that 
 the rules as to competency to contract are the same in agreements 
 creating the relation of master and servant as in other contracts. 
 
 Rights and Duties as between Master and Servant. — As the re- 
 lation of master and servant results from agreement it follows 
 that the parties as between themselves may fix their respective 
 rights and duties by the agreement subject only to the ordinary 
 rules of law as to consideration, legality, and form. 
 
 To this general rule there are some exceptions based sometimes 
 on the condition and capacity of the servant as in limitations upon
 
 296 AMERICAN ELEMENTARY LAW. 
 
 the hours and kinds of labor that may be performed by children, 
 and in others, upon the extra-hazardous nature of the service, as 
 in the employment of servants by railroad companies. In the 
 cases of extra-hazardous service, these exceptions are based on 
 legislation fixing certain liabilities upon the master, or recogniz- 
 ing that certain liabilities are fixed upon him by the Common 
 Law and, in either case, forbidding the parties by agreement to 
 waive or limit such liability. They occur principally with refer- 
 ence to the doctrine of fellow servants and the defenses of con- 
 tributory negligence and assumption of risk. Notwithstanding 
 these statutes, it is still true that as to parties not embraced in 
 them the general Common Law rule obtains that they may fix 
 their respective rights and liabilities by agreement. 
 
 It is very unusual, however, for parties entering into this rela- 
 tion to agree expressly and in detail as to all their respective 
 rights and duties. 
 
 As the relation is common, it becomes necessary for the law to 
 take cognizance of it and make general regulations to govern the 
 parties to it in regard to those points as to which their minds have 
 not, in fact, met. Hence, we have a number of legally recognized 
 rights and duties incident to this relation, which the parties have 
 never in fact contemplated, and which might, usually, have been 
 changed by them by agreement, but which still govern them as 
 legal requirements, unless so modified. 
 
 The most important of these duties of the master are : 
 
 (1) To use reasonable care to provide the servant with reason- 
 ably safe premises in which to perform his duties and the same 
 care to keep them in such condition. 
 
 (2) To use reasonable care to provide him with reasonably 
 safe appliances with which to operate and the same care to keep 
 them in such condition. 
 
 (3) To use reasonable care in selecting reasonably competent 
 and faithful fellow-servants and the same care to see that they re- 
 main so. 
 
 (4) To make reasonably safe and proper rules for the reason- 
 ably safe conduct of the business and to use reasonable care to see 
 that they are observed. 
 
 These four rules cover the principal Common Law duties as to 
 care owed by the master to the servant. They are rules requiring
 
 SPECIAL RELATIONS AFFECTING LEGAL EIGHTS. 29Y 
 
 reasonable care, not rules imposing liability as an insurer. The 
 law does not require the master to insure the safety of the serv- 
 ant in any of the matters covered by these rules but only to ex- 
 ercise reasonable care for his safety. This duty of reasonable 
 care is a continuing one. It must not only be observed as to pro- 
 viding premises and tools, selecting fellow-servants, and making 
 rules, but also requires the use of reasonable care in inspecting 
 the premises and appliances and guarding the servant against 
 deterioration in either, and also a careful watching over the 
 fellow-servants so as to ascertain any incompetency or habits 
 of negligence and recklessness. This continuing duty also re- 
 quires that reasonable care be exercised to see that rules which 
 have been promulgated are fairly observed in the actual carrying 
 on of the business. 
 
 If the master has observed these continuing duties at Common 
 Law, he is not responsible to the servant for hurt which may oc- 
 cur to him in the service, but if he fails in any one of these duties 
 and the servant, without fault on his part, is injured as a direct 
 result of such failure by the master, the master must make just 
 compensation for the injury received. 
 
 In connection with the third rule above stated is the Common 
 Law rule as to fellow-servants. This doctrine is but an enlarged 
 and special statement of the rule above announced, that if the 
 master has used reasonable care in the employment of fellow- 
 servants and reasonable care to ascertain the competency and 
 trustworthiness of the servant, he is not responsible to one of his 
 employees for injuries resulting from the wrongful conduct of 
 his fellow-servant. The master, having used reasonable care to 
 protect the servant, is without fault as to wrongs committed by a 
 fellow-servant, which the use of reasonable care by the mnster in 
 his employment and retention could not prevent. Stated thus, 
 and with proper limitations as to who are fellow-servants, the rule 
 is a just and proper one. Considerations of public policy and the 
 desire to protect the weak against the strong have, however, led 
 the Congress of the United States and the Legislatures of many 
 of the States to abolish this Common Law doctrine as to railroad 
 companies and the receivers and operators of these roads so far as 
 servants actually engaged in the operation of cars, is concerned, 
 and to materially modify it as to other servants of such masters. 
 These statutory enactments cannot be discussed in detail.
 
 298 AMERICAN ELEMENTARY LAW. 
 
 At Common Law, persons are deemed fellow-servants if they 
 are engaged by a common master for the purpose of accomplish- 
 ing a common purpose and are subject to the same general con- 
 trol. The doctrine as thus stated is very broad, and many of the 
 statutory changes are limitations put upon it narrowing the ap- 
 plication of the doctrine. 
 
 Closely connected with the doctrine of fellow-servants and prob- 
 ably developed by it is the doctrine of vice-principals. This 
 may be said to be a Common Law limitation of the Common Law 
 doctrine of fellow-servants as broadly stated above. It effects that 
 part of the fellow-servant doctrine that requires that the parties 
 be under the same general direction. 
 
 It is apparent that in any business conducted on an extensive 
 scale there will be many grades of servants. For instance, in the 
 business of railroading there must be a department of construc- 
 tion and maintenance presided over by a general superintendent. 
 If the line of road is extensive, different divisions will be estab- 
 lished each being under the supervision of a division super- 
 intendent. Each of these divisions will be subdivided into sec- 
 tions, each of which will be in control of a section boss. While 
 the general superintendent has general direction over the entire 
 line, his authority is usually exercised directly on the division 
 superintendent, and each division superintendent in turn, exer- 
 cises control over the section foreman, and the section foreman in 
 turn controls and directs the section hand who actually works 
 upon the track. This illustration, while it shows the desirability 
 of grades in employment, also shows the opportunity for compli- 
 cation in applying the fellow-servant doctrine so far as it 
 involves the idea of the parties being under the same general di- 
 rection. 
 
 To meet this situation, the doctrine of vice-principal arose as a 
 limitation upon the general rule as to fellow-servants. This doc- 
 trine declares that if one servant be given the control and author- 
 ity over another and has over him the power of employment and 
 discharge, that the two are not fellow-servants, although, in 
 a broader sense, they are clearly under the general direction of 
 the same master, or some representative of the master, of a higher 
 grade than either of them. As applied in the illustration given 
 above the section foreman has direction and control over the sec-
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS. 299 
 
 tion hand with the power to enforce obedience to his orders by 
 discharging the hand and is therefore, as to the section hand, a 
 vice-principal and not a fellow-servant. Hence the railroad com- 
 pany, the common master of both, is responsible to the section 
 hand for injuries directly resulting from the wrong of the fore- 
 man. 
 
 The vice-principal doctrine may be stated thus: that if two 
 persons are in the employ of the same master, the one having the 
 right to direct the work of the other and to discharge him, the 
 one having control is not a fellow-servant with the other but is a 
 vice-principal for the master, and the master is responsible to the 
 subordinate servant for injuries resulting to him from the 
 wrongful conduct of the superior. 
 
 The rule, however, does not work the other way. So far as lia- 
 bility of the master to the superior servant is concerned, he, and 
 the man under his control, are fellow-servants and the master is 
 not legally responsible to the vice-principal for injuries resulting 
 from the wrong of his subordinate. 
 
 N on- Assignability of Duty. — We have given a good deal of 
 space to the discussion of the doctrine of fellow-servants and its 
 modification by the later doctrine of vice-principal because these 
 rules have, for a long time, been firmly imbedded in the Common 
 Law. A far simpler and more satisfactory solution of most of 
 the difficulties involved in the situation is found in the funda- 
 mental doctrine of the non-assignability of duty. 
 
 This doctrine, broadly stated, is that the law, though it permits 
 the delegation of the discharge of duty, never permits the assign- 
 ment or divestitute of the underlying obligation. Applying this 
 doctrine to the relation of master and servant it results that each 
 of the duties of the master enumerated above rest upon him and 
 the obligation cannot be shifted by him to another so as to relieve 
 him therefrom. He may, and in the great majority of instances 
 in actual life he does, substitute another for himself in discharg- 
 ing the duty. The law recognizes the substitution so far as to 
 accept performance of the duty by the substitute as full dis- 
 charge of the obligation, but the law positively refuses to recog- 
 nize this substitution as itself a discharge. 
 
 Applying this general doctrine to the matter in hand the 
 master must meet each of the obligations resting upon him. If
 
 300 AMERICAN ELEMENTARY LAW. 
 
 he does so in person, well and good. If he does so by substitute, 
 this is equally as satisfactory. But the appointment of a substitute 
 to perform a duty, not followed by performance, is no fulfillment 
 of obligation. For example, a master's business requires the use 
 of dangerous machinery. The law says he must use reasonable 
 care in inspecting each machine at the time he acquires it and 
 must continue to use such care to ascertain its true condition 
 after it has been installed and put in operation. If, in fact, the 
 master exercises such care, either in person or through a servant, 
 he is not responsible for injuries to his servants resulting from 
 latent defects in the machine. If, however, the master employs a 
 servant to inspect the machine for him and makes most rigid re- 
 quirements of him as to the inspection, but the servant neglects 
 to inspect and another servant is injured by reason of the defect 
 in the machinery which could have been discovered by the exer- 
 cise of ordinary care, the master is responsible for the directly 
 resulting hurt. 
 
 The same is true as to each of the other duties of the master 
 enumerated above. 
 
 If this doctrine were in fact properly applied to the master's 
 duties as to the employment and retention of servants, it is earn- 
 estly believed that this would eliminate many, if not all, of the 
 difficulties of the fellow-servant and vice-principal rules. It is 
 gratifying to note that the broad doctrine of non-assignability of 
 duty is gaining more and more attention and recognition, and 
 has, by several courts of good standing, been applied as to the 
 duty of the master in the employment of servants. 
 
 Assumption of Bisk. — After the master has used this care, the 
 servant is regarded as having assumed the risks incident to the 
 business engaged in. This has two limitations: (1) If the serv- 
 ant be young or unskilled, and does not know the dangers inci- 
 dent to the business, the master should give him warning. (2) If 
 the master is advised of defects, and promises to fix them, the 
 servant is entitled to depend on this for a reasonable time, and 
 his continuing in the employment for such time, in the belief that 
 the master will keep his promise, is neither an assumption of risk 
 nor contributory negligence. Continuance beyond a reasonable 
 time, however, will be a defense against the master's liability. 
 
 A number of States have legislated on this subject also. Some
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 301 
 
 of the statutes are merely cumulative, being practically statutory 
 declarations of the existing Common Law rules. Others of them 
 limit, more or less, the Common Law doctrine, some going so far 
 as to almost set it aside. 
 
 Compensation and Reimbursement. — In all cases of employ- 
 ment in which the master has agreed to pay a specified price and 
 the service has been rendered according to contract, the servant 
 is entitled to the stipulated wages. This is subject to the rule of 
 law that persons under legal disability are not bound except for 
 necessaries and are bound for them only for the real value and 
 not for the contract price, and if the master in any given case is 
 under legal incapacity his obligations would be governed by the 
 exception and not the rule. "Where the amount of wages is not 
 agreed upon but services are actually rendered and accepted the 
 law ordinarily presumes or implies a contract to pay their rea- 
 sonable value. To prevent such an implication, the circumstances 
 must be unusual and tend strongly to show an intent to serve 
 voluntarily. The right to compensation, of course, depends upon 
 rendering the service as contemplated by the employment. 
 
 Nice questions have arisen as to the liability of the master for 
 wages when the contract contemplated the continuance of the 
 service for a definite term and the servant partially performed 
 his agreement, and then, without fault of the master, abandoned 
 the employment. The weight of the later authorities seems to be 
 that in such cases, the servant is entitled to reasonable compensa- 
 tion for the service rendered less the damage which he occasioned 
 the master by the breach of the contract. 
 
 If the contract contemplates service for a term and the master, 
 without fault of the servant, refuses to permit the servant to con- 
 tinue in his employment throughout the term, the master owes 
 the servant the agreed price of the service for the length of time 
 it was rendered, if the wages were agreed upon, plus the damage 
 resulting to the servant from the breach of the contract. If the 
 rate of wages was not agreed upon, the master owes the reasonable 
 value of the service rendered plus the damage occasioned to the 
 servant by the breach. The proper measure of damage in these 
 cases seems to be somewhat in doubt. It is, however, conceded 
 that the servant may use reasonable diligence to obtain employ- 
 ment of similar character for the remainder of the term, and if
 
 302 AMERICAN ELEMENTARY LAW. 
 
 he secures such employment, his damage would be the value of 
 his time consumed in finding the employment plus the difference 
 between the wages he would have gotten under the first contract 
 and the wages he actually received during the term. If he could 
 find no employment by the exercise of reasonable diligence, his 
 damage would be the wages for the entire term, at the price agreed 
 upon, if fixed, or the reasonable value, if the wages were not fixed. 
 
 The master owes the further duty of reimbursing the servant 
 for any amount he may be compelled to pay for damages occa- 
 sioned a third person by obedience to the commands of the master 
 which the servant thought to be lawful by reason of any mistake 
 of fact. If the servant knew that he was violating a legal right 
 of the injured party, he would be a joint tort-feasor with the 
 master in carrying out the command, and would not be entitled 
 to reimbursement, or even contribution. 
 
 Servant's Duties. — The servant owes to the master obedience 
 to all proper commands connected with the employment, faithful 
 performance of the service he has promised to render, care and 
 diligence as to the interest of his master, and also in his conduct 
 toward third parties, so as not to bring his master under legal lia- 
 bility to them. The servant must compensate the master for loss 
 arising from the non-observance of these duties, or any of them. 
 
 Ending of the Relation. — As the relation arises from contract, 
 it may be terminated by the same means — mutual agreement. It 
 is ended by the death of either party, also by expiration of the 
 term of employment and, if no term is agreed upon, at the will of 
 either party. 
 
 Liability of Each of the Respective Parties for Wrong Done by 
 the Other. — While it is true that, as between themselves, the 
 master and servant may very largely determine what their rights 
 and liabilities shall be, it by no means follows that their agree- 
 ments will be binding upon third persons. It is a fundamental 
 principle of law that one person can not, by agreement with a 
 second person, relieve himself from liability to a third. To ac- 
 complish this, the third person must, in some lawful way, assent 
 to the change of his rights. Therefore, we find another important 
 body of legal rules which govern the master and servant in their 
 conduct toward third persons, and determine the liability of each 
 to third persons for acts or omissions of the other. It must be
 
 SPECIAL RELATIONS AFFECTING LEGAL EIGHTS. 303 
 
 observed that no one can relieve himself from the consequences of 
 his own wrong, as to third persons, by the co-operation of others 
 in wrong-doing, and so we may state it as a universal rule : If the 
 conduct complained of is a violation of a legal right of a third 
 person, the guilty party is responsible to the person injured, 
 whether, as to some other person, he sustained the relation of 
 master or servant, or not. 
 
 With this, we enter the secondary range of liability, that 
 is, those liabilities that result to one person by reason of his at- 
 tempting to accomplish purposes of his own through some other 
 person as an instrumentality. The old doctrine of the law is that 
 what one does through another he does by himself, or the doctrine 
 of representation, or substitution. This doctrine is far reaching 
 in its application and consequences. In this connection it covers 
 every case in which one puts another in to act for him unless the 
 action involves the exercise of the power to contract. So far as 
 the rights of the third party against the master for the conduct of 
 his servant are concerned, the real inquiry is, what was the rea- 
 sonably apparent scope of the employment? The contract be- 
 tween the master and servant, unless its terms were known to the 
 third party, in which case it would be conclusive as to the extent 
 of the substitution, is material only as fixing the relation of the 
 parties as master and servant and as tending to show the extent 
 of the substitution. It is to be considered in the light of all the 
 circumstances in aiding the inquiry as to what was the reason- 
 ably apparent scope of authority. It is by the reasonably appar- 
 ent scope of authority that the master is bound. This is deter- 
 mined by a reasonable interpretation of the conduct of the master 
 and the conduct of the servant under the authority acquiesced in 
 by the master. If the act resulting in hurt to the third party was 
 within the scope of his authority as fixed by a reasonable inter- 
 pretation of the facts surrounding the transaction, the master is 
 liable, although in fact the wrongful act exceeded the actual 
 authority of the servant or was even directly opposed to the in- 
 structions of the master. 
 
 Another basis for the master's liability to third persons for the 
 wrong of the servant is the doctrine of non- assign ability of duty. 
 If the master owes a duty to a third person, and delegates its per- 
 formance to his servant, the master is responsible to the third
 
 304. AMERICAN ELEMENTARY LAW. 
 
 party for injuries resulting directly from the wrongful conduct of 
 the servant in relation to the duty, whether such wrong consists in 
 affirmative misconduct in an attempt to discharge the duty or 
 negative misconduct by failure to discharge. The reasons for 
 this doctrine need not be again discussed.
 
 CHAPTER XIV. 
 
 SOME SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES 
 
 (CONTD.) 
 
 RELATIONS INVOLVING SUBSTITUTION ( CONTD.) 
 
 Principal and Agent. 
 
 A principal is one who has employed another called the agent 
 to exercise the principal's contractual powers and thus brincr him 
 into new relations with third parties. Like master and servant, 
 it is a relation involving the doctrine of substitution. It covers 
 those cases of substitution which do not come under the head of 
 master and servant. While the substitution is for a different 
 purpose than that in master and servant, it is still true substitu- 
 tion and a great deal that has been said under the former head 
 is applicable here. 
 
 How Formed. — Agency may be created in several ways: 
 
 (1) By agreement. 
 
 (2) By estoppel. 
 
 (3) Bylaw. 
 
 It is customary to speak of agency by necessity as an additional 
 subdivision but it seems that this is but an illustration, or one 
 method, of creating agency by law. 
 
 Agency by Agreement. — In agreements creating agency the 
 same rules of law govern as do in all other kinds of undertakings. 
 In order to form an enforceable executory contract creating and 
 sustaining the relation of agency, there must be the four ordinary 
 essentials, of contract viz : competent parties, consideration, law- 
 ful purpose, and proper form. 
 
 The rules as to competency of parties, so far as affects the con- 
 tracts of agency between principal and agent, do not differ at all 
 from those governing in other agreements. So that any two 
 20
 
 306 AMERICAN ELEMENTARY LAW. 
 
 legally capable persons can enter into an agreement by virtue of 
 which one is to act for and bind the other within the terms of the 
 contract. Again, a legally capable person can legally employ a 
 married woman or a minor to act as agent for him. Such con- 
 tract would be binding upon the competent party as fully as if 
 the other party were an adult. The infant or married woman 
 would not be bound to carry out the agreement but could repudi- 
 ate the agreement under the same conditions that he or she could 
 any other agreement except one for necessaries. So long as the 
 infant or married woman does act as agent, the agreement 
 entered into by the principal through such agent, is just as bind- 
 ing on the principal as if the agent had been legally competent to 
 contract for himself. This results from the fact that the agent, 
 in entering into an agreement for the principal, is exercising a 
 contractual power of the principal and not of the agent. The 
 agent is but the means through which the contractual power of 
 the principal is extended and joins with that of the other con- 
 tracting party. This power of the principal is not diminished by 
 its transmission through the non sui juris agent. 
 
 If the agent under disability actually serves as agent and ren- 
 ders service for the principal, he or she is as fully entitled to 
 compensation as if not subject to legal disability. 
 
 "When the case is reversed and an incapable person, as a mar- 
 ried woman, minor, or insane person, undertakes to become a 
 principal and to enter into agreements through an adult agent, 
 the same rules that we have considered above apply, but they 
 work out different results. It is still the contractual "capacity of 
 the principal that is sought to be exercised, but as the principal 
 in the supposed case has only limited contractual power, the ef- 
 fect upon the agreement is just the same as if the incapable prin- 
 cipal had undertaken to enter into it in person. 
 
 Consideration is as essential- to support an agreement of agency 
 as any other, but here also an agency voluntarily undertaken, if 
 executed by the agent, will bind the principal. 
 
 The purpose to be effected by the agency must be lawful. The 
 law cannot undertake to sustain individuals in agreements con- 
 trary, either to its express provisions or rules or against public 
 policy. An attempt to create an agency for an illegal purpose 
 would result, not in a contract of agency, but in an unlawful
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 307 
 
 conspiracy, under which each party would be legally liable for all 
 wrongs committed by either within the common understanding. 
 
 There is some difficulty in announcing exactly the rules of law 
 as to the form of agency agreements. It is quite frequently said 
 that wherever the contract to be entered into by the agent must 
 be in writing the authority of the agent must be in writing also. 
 Though repeatedly so declared by high authority, the rule thus 
 announced is not legally accurate. There are a number of condi 
 tions under which oral authority may be given to an agent to exe- 
 cute written contracts in the name of the principal. For example, 
 a merchant verbally requests the clerk who does the purchasing 
 in the name of the firm to send a written order for goods to the 
 wholesale dealer and sign the name of the firm thereto. The 
 wholesale merchant fills the order. The bill is not paid. There 
 can be no question that the firm is bound by the order. Or, 
 changing the illustration somewhat, if the bill from the wholesale 
 house has come in and it was the understanding that the retail 
 merchant should give his note for the amount due and the pur- 
 chasing clerk, in pursuance of instruction from the merchant, or 
 even in accordance with the general customs of the business, 
 should make out the note and sign the merchant's name to it, 
 this would be a valid note by the merchant. Both these are illus- 
 trations of written contracts entered into by the principal through 
 an agent having only parol authority for so doing. 
 
 The true rule on the subject seems to be that the principal may, 
 by parol, authorize an agent to execute written contracts in the 
 principal's name in all instances except those in which the law 
 specifically provides that the authority must be in writing. The 
 most common example of such requirement is found in the Stat- 
 ute of Frauds with reference to the execution of conveyances for 
 estates in land for a term longer than one year. , In such cases, 
 that is, those in which the law so expressly requires, the author- 
 ity must be in writing. 
 
 To prevent confusion it is well here to call attention to the dif- 
 ference between authority to make a sale of land, and authority 
 to convey. The former may be given by parol, and if an agent 
 so authorized shall find a purchaser willing to take the land under 
 the terms specified by the agreement with the principal, though 
 the proposed purchaser could not compel the principal to convey
 
 308 AMERICAN ELEMENTARY LAW. 
 
 the land to him, still the agent, having do^e all he undertook to 
 do for the principal, would be legally entitled to his compensation. 
 
 When Formed. — The contract of agency may precede, be con- 
 current with, or subsequent to the act by which the agent binds 
 the principal. 
 
 The first two of these, contracts which precede or are con- 
 current with the agency act, have nothing peculiar beyond what 
 has been pointed out in the foregoing discussion and need not be 
 further considered. 
 
 The third, authority conferred after the act performed by the 
 agents, presents a number of peculiar features. The agreement 
 by which a person adopts and makes his own an agreement pre- 
 viously made in his behalf by one having no authority to act for 
 him is called ratification. 
 
 For ratification to take place so as to bind the principal and 
 the party with whom the assumed agent entered into the agree- 
 ment, five facts must concur, viz. : 
 
 (1) At the time the agreement was entered into by the agent, 
 the agent must assume to represent the subsequently ratifying 
 principal, and must act in his behalf. 
 
 (2) The ratifying principal must have been in existence and 
 legally competent to contract at the time the assumed agent en- 
 tered into the agreement. 
 
 (3) The principal must subsequently give real assent to the 
 agency act as his own, and must at this time be competent to con- 
 tract. 
 
 (4) The subsequent assent must be given in the form in which 
 antecedent authority would have been required to be given. 
 
 (5) The act ratified must have been lawful at the time it was 
 performed, and it must continue to be so at the time of the ratifi- 
 cation. 
 
 "When these facts concur, the ratification goes back to the date 
 of the agency act and, as between the parties, vests the ratifying 
 principal with just such rights, and subjects him to just such lia- 
 bilities, as would have existed had the agency act been ante- 
 cedently authorized. If the rights of innocent third parties have 
 intervened, they will not be cut off by the ratification. 
 
 Agency by Estoppel. — This exists when one person has given 
 another reasonable grounds to believe that a third person is his
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 309 
 
 agent, and the second party, influenced by this reasonable be- 
 lief, has dealt with the third as agent of the first, and in so doing 
 has put himself in such an attitude that it would be inequitable 
 to permit the first to deny the agency of the third. Agency by 
 estoppel is extended so far, and s,o far only, as justice to the de- 
 ceived party requires. "Whenever he is fully protected, the law is 
 satisfied, and will not press the estoppel further. , 
 
 Agency by Laio. — Agency by law exists where the law author- 
 izes one person to exercise for another the latter 's right to con- 
 tract. This is apparently a contradiction in terms, as the right 
 to contract is the right to create, modify, or destroy legal rights 
 by agreement, and agreement implies the free assent of the mind. 
 Still, conditions arise in which justice and public policy require 
 that certain action be taken by unwilling parties, and in cases 
 of urgent necessity the law intervenes and in its own name con- 
 fers authority upon someone, usually a public officer, to do the 
 act in behalf of the unwilling individual. To illustrate, a man 
 owns property and is in debt. He does not pay nor will he sell 
 the property and apply the proceeds to the debt. By taking 
 the proper steps, the creditor can have his rights as such estab- 
 lished in court and have the proper officer of the law to seize and 
 sell the property of the debtor in order to obtain funds with which 
 to pay the debt. The officer, by the sale under this legal author- 
 ity, conveys whatever interest and estate the debtor has in the 
 thing sold. He thus, under authority derived from the law, be- 
 comes the instrumentality through which the property right of 
 the debtor in the thing sold is passed over to the purchaser and he 
 may well be regarded as the debtor's agent by law for such pur- 
 pose. 
 
 Agency by necessity may also properly be put in this class of 
 agency by law. 
 
 Agency by necessity is sometimes said to exist under circum- 
 stances which it seems might well be regarded as a proper basis 
 of implied contracts of agency. "Wherever this is true the proper 
 disposition of the case would be to classify it as agency by agree- 
 ment. In those instances in which agency cannot be implied as a 
 fact, that is, in which no assent of the principal can be presumed, 
 if the agency exists at all, it must be by implication of the law, 
 and the case would be properly included under the present head.
 
 310 AMERICAN ELEMENTARY LAW. 
 
 Termination of Relation. 
 
 In agency created by agreement, the parties to the relation may 
 terminate it at any time by mutual assent. Provision for the ter- 
 mination of the relation may be and frequently is made in the 
 agreement creating it. This is # always true in cases in which the 
 continuance of the agency is expressly limited to a certain time, 
 or in which it is expressly understood that the agency is to ter- 
 minate upon the happening of a certain contingency. It is also 
 entirely permissable for the parties to end their relation at any 
 time by mutual agreement. The contract of agency, unless it be 
 one technically known as an agency coupled with an interest, is 
 always made subject to certain implied conditions, the happen- 
 ing of any one of which will either itself end the agency or be 
 sufficient ground to justify the other party in withdrawing from 
 it. The events most usually having such effects are death, in- 
 sanity, protracted sickness, or other cause resulting in permanent 
 physical disability of either party, or the marriage of the principal 
 if she "be a woman. If the principal be a man, and the agency is 
 one authorizing the sale of land, the marriage of the principal 
 and his designating and occupying the land as a homestead will 
 have the same effect 
 
 The relation may also be terminated at any time by the with- 
 drawal of either party. The law will not undertake to compel a 
 person to act as agent for another. It would be powerless to 
 compel faithful and efficient service if it should undertake to do 
 so and, recognizing this inability on its part, does not attempt 
 specific performance of agency agreements by the agent. For 
 somewhat different though practically the same reasons it rarely 
 undertakes to compel the principal to retain and recognize an 
 agent with whom, for any cause, he has become dissatisfied. The 
 relationship presupposes special confidence and mutual accept- 
 ability. These are matters beyond the control of the law. 
 
 While it is in the power of either party to withdraw from the 
 agreement, it is not within his right unless the agreement haspre- 
 viously been broken by the other. The one withdrawing wrong- 
 fully is responsible to the other for all the damages directly re- 
 sulting from such conduct. In what these damages shall consist 
 and how they are to be measured depends upon the nature of the
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 311 
 
 agency and the facts of each case, and it would not be profitable 
 to undertake a discussion of them here. 
 
 Withdrawal from the relation by the principal is called a re- 
 vocation ; withdrawal by the agent is called renunciation. 
 
 Duties of the Parties as Between Themselves 
 
 While the relation-exists, it is one of trust and confidence, and 
 requires the utmost good faith between the parties. The agent, 
 especially, can not use to his own advantage information or oppor- 
 tunities coming to him by reason of his employment; but must 
 turn everything in connection with his employment to the ad- 
 vantage of his employer, if it can honestly and fairly be done. 
 The agent must faithfully serve his principal, and give to him 
 all the time, energy and capacity which a fair construction of the 
 agreement includes. The principal must pay his agent the price 
 agreed upon, or if no agreement is made as to compensation, then 
 the reasonable value of the agent's services, and must also re- 
 imburse him for any reasonable and proper expense he has in- 
 curred or liability he has become subject to by reason of the proper 
 performance of his duty. 
 
 Rights and Liabilities as to Third Persons. 
 
 Within the scope of his employment, the agent is the substi- 
 tute, the other self, of the principal, and as to third persons not 
 otherwise advised, it is this active, substituted self which wills and 
 acts in performance of the agency acts ; and his principal is bound 
 to such third persons just as if he had actually been present and 
 had willed and acted just as the agent did at the time. The scope 
 of employment, as between the principal and agent and others 
 having knowledge of them, is fixed by the terms of the agreement, 
 and the instructions actually given by the principal to the agent. 
 As to third persons not so advised, the authority of the agent is 
 limited to the power which a reasonably prudent and capable per- 
 son would reasonably believe him to have, from all the facts and 
 circumstances of the case. There are a great many other interest- 
 ing doctrines regarding this subject, but we must omit them for 
 lack of time and space in which to deal with them.
 
 CHAPTER XV. 
 
 SOME SPECIAL RELATIONS AFFECTING LEGAL RIGHTS AND DUTIES 
 
 (CONTD.) 
 
 RELATIONS BASED UPON CO-OPERATION OR COMMUNITY OF INTEREST. 
 
 Joint Actors. 
 
 When persons agree together to co-operate in the accomplish- 
 ment of a common end, each agreeing to do his part toward the 
 common purpose, they become co-actors and each is responsible for 
 anything done by the other in carrying out the agreed purpose. 
 An act is held to be within the common purpose if it is so con- 
 nected with it that, under all the facts and circumstances, a man 
 of ordinary prudence and judgment would have anticipated it as 
 likely to arise. 
 
 If the common intent is wrongful and unlawful, the parties, by 
 reason of the agreement, become co-conspirators, and when the 
 enterprise is entered upon in pursuance of the common under- 
 standing they become joint wrong-doers or tort-feasors. 
 
 In each case the parties are jointly and severally liable to in- 
 jured persons for any damages which may result to them directly 
 and proximately from a violation of a legal right. But there is 
 this difference : in the first case, the purpose and intent of the par- 
 ties being lawful and the violation of the right of the third person 
 not being desired, the right of contribution exists between them,' 
 and if either is compelled to pay the third person he can usually 
 recover from his co-operator a just share of the amount paid out 
 by him; while in the second the parties, having designed to do 
 wrong and to violate the law, the courts will not attempt to adjust 
 equities between them, but will leave the loss on him who is com- 
 pelled to pay, without giving any right to contribution. 
 
 Employer and Independent Contractor. 
 
 This is a relation growing out of contract by which one un- 
 dertakes to accomplish for another some desired purpose ac-
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 313 
 
 cording to a general plan agreed upon by the parties, but in which 
 the manner and means of accomplishing the purpose are left to 
 the employee. As he exercises his own judgment an to these and 
 employs his own means and agencies to bring about the desired 
 result, he is called an independent contractor. It is in this re- 
 spect that he differs from the servant. The latter is subject to 
 the will and judgment of the master as to all matters concerned in 
 the execution of the plan, while the independent contractor takes 
 the general plan and works it out by his own means and judgment. 
 The employer here is concerned only with the results. It follows 
 that, as the independent contractor is acting for himself and not 
 for his employer, the latter is not responsible for the wrongs of 
 the former unless they are, first, the result of defect in the plans 
 furnished by and of course agreed to and participated in by the 
 employer, making him a joint wrong-doer or tort-feasor with the 
 contractor, or second, unless they result from the nonperformance 
 of some duty resting on the employer, which he employed the con- 
 tractor to perform. Under the principles already discussed he 
 would then be responsible. It is nearly always the case that when 
 the employer is responsible the contractor is also, but the reverse 
 is by no means true, for the contractor may be guilty of a great 
 many wrongs committed in carrying out the details of the work, 
 which were not participated in by the employer. 
 
 The name of this relation and, indeed, many of its real charac- 
 teristics, would not suggest placing it in this group at all ; but as 
 the general plan is agreed to by both the employer and the con- 
 tractor, everything done in pursuance of that involves unity of 
 design and action, and as to that there is co-operation and com- 
 munity of interests, and hence I place it in this class. 
 
 Partnership. 
 
 Partnership is an association of two or more competent persons 
 in a business enterprise in which they combine either capital, skill, 
 or labor, or one or more of these, for their joint profit. 
 
 Partnership involves, and calls for the application of, the rules 
 of law governing both co-operation and substitution. So far as 
 each partner represents and acts for himself he is co-operating 
 with his other partners as they respectively act for themselves. 
 So far as he represents and acts for his partners he is a substi-
 
 314 AMERICAN ELEMENTARY LAW. 
 
 tute for each of them. In the language of many of the cases 
 partnership is mutual agency. This only presents half the truth, 
 as it is at the same time mutual agency and mutual principalship. 
 
 To illustrate : A desires to go into business. He puts ten thou- 
 sand dollars into the enterprise and employs B to take charge of 
 and manage it for him. Here, A is the sole principal and B the 
 sole agent, and the relation is one of principalship and agency. 
 Again, A and B each desires to go into business. Each has five 
 thousand dollars. They agree to combine their capital, skill, and 
 labor and to share in the profits. This constitutes partnership. 
 Here A is principal in the business to the extent of five thousand 
 dollars, and whenever he acts for the business, so far as he is effect- 
 ing his own interests, he is acting as principal; but B also has 
 five thousand dollars in the concern, and when A sells any article 
 for the firm he passes B 's interest as well as his own ; so, as to that, 
 he is agent. So in everything either of them does in the business, 
 so far as he acts for himself, he is principal ; so far as he acts for 
 his partner, he is agent ; and this condition is true of each member 
 of the normal partnership. 
 
 A partnership is not regarded in law as a legal entity or person 
 separate from its members. It is not, by law, declared to have dis- 
 tinct and separate legal rights or owe separate legal duties. Yet, 
 in many material ways, this conception asserts itself. It is the 
 prevailing business view, and is so interwoven in the every-day 
 affairs with which the law deals that it has been found impossible 
 to disregard it entirely. Thus, we constantly read of firm prop- 
 erty and firm assets, firm debts and individual debts of part- 
 ners, etc. 
 
 Suits by and against partnerships must be conducted in the 
 names of the individual members and not the name of the firm. 
 
 Partnerships are created by agreement of the parties, and hence 
 are subject to all the rules of Contract Law. They can be entered 
 into only by natural persons having capacity to contract, or by 
 corporations duly authorized for lawful purposes, which must be 
 some form of business undertaken for profit. The contract must 
 contemplate the combination of capital, labor or skill of the re- 
 spective parties, resulting in a joint proprietorship in the busi- 
 ness and its capital or profits, one or both. The mutual promises 
 and contributions of the respective parties furnish the considera-
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 315 
 
 tion to support their several undertakings. Each member of the 
 firm has an equal voice in the management of the business, and 
 each, in the absence of agreement to the contrary, is entitled to an 
 equal share in the profits, though on dissolution the capital is to 
 be withdrawn in proportion to the original contribution. In- 
 equality of contribution, coupled with very slight evidence sup- 
 porting the contention, will be sufficient to show agreement for 
 participation in profits in proportion to contributions. 
 
 Usually partnerships are terminable at the will of either party. 
 If in any case there is a definite time fixed for its continuance, it is 
 still within the power, though not within the right, of either party 
 to end the relation, by simply withdrawing from it. He would, of 
 course, be responsible to the other or others for any damages oc- 
 curring from the breach. Death of either member ends the firm ; 
 so does the withdrawal of any member, or the taking in of a new 
 member. No number of persons less than the whole membership 
 of the firm can form a partnership. Each member is liable for 
 all the debts of the firm, but has a right of repayment from the 
 firm, if it be solvent, or of contribution from the other members 
 when the firm is insolvent. The interest of each member in the 
 firm assets is subject to be taken fpr his individual debts. This 
 is regulated, in most States, by statute, and usually the levy is 
 made by serving notice on some member of the firm at the place 
 of business, and then selling the interest of the debtor partner. 
 The sale dissolves the firm, and the purchaser acquires just the 
 rights and interests which the debtor had at the time of the levy, 
 which will be ascertained by taking an account of the concern 
 as of that date. 
 
 According to the weight of authority firm creditors have no lien 
 on firm assets, but each of the partners has a right to see that all 
 firm property is applied to payment of firm debts before it is 
 distributed among the members of the firm, or to their individual 
 creditors. 
 
 Partnerships being formed by contract, agreements of that kind 
 entered into by infants are voidable by the infant, but binding on 
 the adult. So long as the infant remains in the firm he has the 
 same rights, and is subject to the same liabilities, as an adult. 
 The same general rules apply to persons mentally incapable. 
 
 The firm is responsible for all torts committed by any member
 
 316 AMERICAN ELEMENT ART LAW. 
 
 within the scope of the partnership business. The scope of the 
 business is determined here, as in the case of agencies, by the 
 partnership contract if that were known and relied on by the third 
 person, or by the reasonable interpretation of the conduct of the 
 parties, where the terms of the contract are not known. 
 
 In a number of the States provision is made by statute for 
 limited partnerships. Under these statutes, a person may con- 
 tribute capital to a firm to a designated amount and make a pub- 
 lic record to that effect and can limit his liability for the debts 
 of the firm to the capital thus paid in by him. If, however, he 
 takes any active part in the management of the firm, he is as re- 
 sponsible as the other partners. 
 
 Partners are of different kinds : (1) Active, including those who 
 take active part in the management of the business of the con- 
 cern. (2) Silent, those who are known to be partners but have 
 no voice in the management of the affairs of the firm. (3) Dor- 
 mant, or those who have a voice in the management of the affairs 
 of the firm but who are not known as partners. (4) Secret, or 
 those who are partners, but who neither take part in the affairs 
 of the firm nor are known as partners.
 
 CHAPTER XVL 
 
 SOME SPECIAL RELATIONS AFFECTING LEGAL BIGHTS AND DUTIES 
 
 (CONTD.) 
 
 RELATIONS BASED ON CO-OPERATION AND COMMUNITY OP INTER- 
 EST ( CONTD.) 
 
 CORPORATIONS. 
 General Definition. 
 
 A corporation is an entity created by the supreme political 
 power, acting either alone or in conjunction with private persons, 
 having under a prescribed name such rights, powers, and privi- 
 leges, and owing such duties as are provided by law ; and endowed, 
 either perpetually or for a designated time, with capacity for con- 
 tinuous existence and legal identity unaffected by change of mem- 
 bers. 
 
 Public Corporation. 
 
 An entity created by the supreme political power, of its own 
 volition, for governmental purposes; having such powers and 
 jurisdiction and charged with such duties as are provided by law ; 
 endowed with the capacity of continuous existence under a desig- 
 nated name. 
 
 Private Corporation. 
 
 (1) A legal entity created by the joint action of the supreme 
 political power and one or more private persons, for some purpose 
 agreed upon between them, either wholly nongovernmental or, if 
 of a public nature, prosecuted for private gain, having, under a 
 designated name, such rights, powers, and privileges, and owing 
 such duties as are provided by law ; endowed, either perpetually or 
 for a specified time, with capacity for continuous existence and 
 legal identity unaffected by change of its members. 
 
 (2) A legal entity created by the joint action of the sovereign 
 and one or more individuals, authorized in its own name to act
 
 318 AMERICAN ELEMENTARY LAW. 
 
 for and represent such private persons in accomplishing some pur- 
 pose or purposes, either wholly nongovernmental, or, if public, 
 prosecuted for private gain, agreed upon by the State and such 
 individuals; having capacity for continuous existence and legal 
 identity unaffected by change in the individuals for whom it acts; 
 having such powers and owing such duties as are provided by 
 law. 
 
 (3) A number of individuals merged into one body by the 
 joint action of the sovereign and themselves, or their predecessors 
 in right, for the accomplishment of designated purposes ; possess- 
 ing, under a designated name, the power of succession and legal 
 identity, either perpetually or for a designated time ; and having 
 such other rights and powers and subject to such duties as are 
 provided by law. 
 
 The corporate idea is so complex and assumes so many different 
 phases that it is extremely difficult to give a definition at once 
 accurate and concise. 
 
 The first of the definitions above given is designed to cover the 
 general conception of the corporate entity in public, quasi-pablic, 
 and private matters. 
 
 The second, is limited to the public corporation and the last 
 three to private corporations including therein gwasi-public as 
 well as the strictly private. 
 
 The three definitions of a private corporation are given in order 
 to emphasize different views of the subject. The two most im- 
 portant of these different views are : 
 
 (1) That a corporation is a legal entity capable of sustaining 
 legal relations; and, 
 
 (2) That a corporation is a combination of individuals, having 
 existence as one body under the law. 
 
 The first two of the definitions of a private corporation present 
 the legal entity idea, and the third, the idea of the collective 
 individuals. Both these views must be constantly kept in mind, 
 and care must always be taken in dealing with the rights and 
 liabilities of a corporation under any given state of facts, to get 
 a clear conception as to the proper meaning of the word in that 
 connection. 
 
 The word entity means being, and a legal entity means a being 
 recognized by law as capable in itself of having legal rights and
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 319 
 
 owing legal duties. The law so regards a corporation. And it 
 is in this sense that corporations are spoken of as artificial per- 
 sons. This view is not a legal fiction adopted for convenience 
 merely, but represents a fact ordinarily involved in the corporate 
 conception. It is of great practical and legal utility, and ought 
 not to be disregarded. 
 
 While definitions one and two of a private corporation both 
 present the idea of legal entity, the second makes more prominent 
 the fact that this entity is created to subserve the purposes of, 
 and act as an agent for, the members of the corporation. This 
 thought seems occasionally to be lost sight of by the courts so that 
 they emphasize and stress the entity idea unduly. 
 
 It is a simple truth of common knowledge that persons desiring 
 to engage in certain businesses for their own profit often in- 
 corporate for such purpose. The corporation is brought into be- 
 ing, not for its own account or advantage, but in the hope of 
 developing profit for those who organize and operate it. The 
 money that each shareholder pays for his stock is only a con- 
 tribution or payment made by him in the hope of securing personal 
 gain. The money so paid is to be used only by the corporation 
 and by it only in the prosecution of the corporate enterprise. 
 The giving over of the money by the corporation to the control 
 of any other person, or its use by the corporation for any other 
 purpose than that designated in the corporate agreement, would 
 be not only a diversion of the money from its legally intended 
 use but a subversion of the corporate purpose. From these facts 
 it seems apparent that the private corporation is designed by its 
 members to act as an agent for them in advancing their private 
 interests by the use of the corporate capital by the corporation 
 for corporate purposes, and that this fact should neither be lost 
 sight of nor ignored by the law. 
 
 The third definition does not present the idea of the private 
 corporation as a distinct legal entity but stresses the thought of 
 the individual members. It recognizes that these individuals are, 
 by joint action of themselves and of the State, merged or combined 
 in exceedingly close business relations but still presents the ag- 
 gregate members as the corporation. It is apparent that this 
 idea falls somewhat short of conception of the distinct legal 
 entity.
 
 320 AMERICAN ELEMENTARY LAW. 
 
 Conditions not infrequently arise in which the view of the ag- 
 gregate members, as constituting the corporation, leads to a much 
 simpler and more direct solution of legal difficulties, and as this 
 view is absolutely true in itself, it should always be kept in mind. 
 
 The advantage of this view may be illustrated by a considera- 
 tion of cases such as the Sugar Trust cases in New York. A num- 
 ber of corporations had been formed for the purpose of handling 
 and refining sugar. By their charters, each of these companies 
 had the legal right to engage in that business as a corporate 
 concern. The capital of each had been gotten from its share- 
 holders to be managed by it and employed by it in the prosecution 
 of the sugar business by that corporation in its corporate capacity. 
 Later, it was thought desirable to combine the several corporate 
 enterprises into one large sugar business, in which a small number 
 of designated persons should have complete control of the entire 
 enterprise and of the business of each of the separate corporations. 
 It was recognized that no one of the corporations, considered as a 
 legal entity, could enter such a combination, so some other method 
 must be devised. The plan adopted, stated briefly, was for the 
 several corporations nominally to keep up their separate existence, 
 conforming to all legal rules and requirements, but that all the 
 stockholders or members of the corporations should go into a 
 combination of their interests and appoint a small number of 
 persons, who, under the authority thus received from the aggre- 
 gate of the stockholders, should actually control and manage 
 the entire business of each and all of the sugar companies. This 
 was done. 
 
 The State proceeded against the several sugar companies, charg- 
 ing them with unlawful combination and the formation of a 
 Trust to control the prices of sugar. The corporations, with a 
 great show of technical truth, replied that no one of them as a 
 legal entity had taken any corporate action combining or tending 
 to combine with any other company and that if combination 
 existed, the corporations as such were not parties to it. These 
 facts were absolutely sustained by the records of each corporation. 
 The fact, however, remained that, in reality, the officers of the 
 respective corporations were not in control of the business being 
 done by the corporation and with its means and facilities, but
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS. 321 
 
 that a few individuals actually were controlling the entire sugar 
 industry as represented by these corporations. 
 
 Technically speaking, the corporate entities had committed no 
 affirmative wrong ; actually, the stockholders had formed a Trust. 
 The practical questions presented to the court on these facts 
 were: 
 
 (1) Can the stockholders of a number of corporations, by 
 agreement among themselves, lawfully effect a combination of the 
 business of the corporations so unifying it as to divest each cor- 
 poration of all control over its corporate business and center this 
 control in a board of managers selected by the stockholders? 
 
 (2) If this be unlawful, will the several corporations be legally 
 responsible for the misconduct of their respective stockholders, 
 that is, were the legal entities responsible for this unlawful con- 
 duct of the members? 
 
 The Supreme Court of New York very properly said that the 
 conduct of the stockholders, acquiesced in by the entities, was the 
 conduct of the corporation, and dissolved the Trust and forfeited 
 the charters of the respective sugar companies. 
 
 Enumeration of Essentials and Powers. — There are certain ele- 
 ments or qualities without which a corporation cannot exist. 
 Some of these are characteristic of corporate being; that is, are 
 possessed only by corporations and hence serve to distinguish cor- 
 porations from all other legal conceptions, combinations, or in- 
 stitutions. Others pertain to corporations and to other persons, 
 and combinations as well, and hence are not characteristic. 
 
 These essentials are : 
 
 (1) Characteristic. 
 
 (a) Merger by law of the individual members into one body. 
 
 (b) Capacity for continuous existence of the body un- 
 
 affected by change of membership, and perpetual sua- 
 cession of the members. 
 l (2) Not characteristic. 
 
 (a) Power to contract to some extent. 
 
 (b) Power to own and use property to some extent. 
 
 (c) Power to sue and be sued in collective capacity. 
 
 (d) Power to have corporate name. 
 Powers practically but not absolutely essential.—* 
 (1) To have a common seal. 
 
 21
 
 322 AMERICAN ELEMENTARY LAW. 
 
 (2) To make by-laws. 
 
 (3) To receive and enjoy special privileges or franchises 
 Towers not essential but usual. — 
 
 (1) To issue transferable shares of stock. 
 
 (2) To do business without imposing liability upon its share- 
 
 holders. 
 
 Essentials. 
 
 Returning to the essentials of the corporate idea we find the 
 distinguishing qualities of a corporation are, first, merger by law 
 of the individuals into one body, and second, the capacity of this 
 body for continued existence unaffected by change of its members, 
 and the right of perpetual succession of the members. These 
 ideas are so closely related that one condition cannot exist in fact 
 without the other. Unless the different individuals are merged 
 into a body which the law recognizes as such, there could be no 
 combination that would remain unaffected by change of mem- 
 bership, nor could there be any right of perpetual succession nor 
 legal substitution of one member for another. While these ideas 
 are closely related, there is enough of distinctiveness in each to 
 make it desirable to keep the three in mind. The merger of the 
 individuals into one body is the act performed by the sovereign 
 and the charter members of the corporation which results in the 
 creation of the corporation. The capacity for continued existence, 
 unaffected by change of members, and the legal succession of one 
 member to another are qualities or characteristics of the corporate 
 being so brought into existence. 
 
 The corporate capacity for continuous existence and the right 
 or power of individuals to succeed one another as members are 
 so closely connected that they are very often spoken of together 
 under the head of capacity for perpetual succession. It is clearly 
 inaccurate to speak of a continuing body as perpetually succeeding 
 itself. The body continues, maintaining its legal identity with- 
 out reference to the change of individuals composing its member- 
 ship. This continuing body is so constituted that its members 
 may go out and others be substituted for them without affecting 
 its continuity. Still the continuity of the body, arid the outgoing 
 and incoming of different members, are different things. In a 
 sense, they seem inconsistent, and the continuity of the body may
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 323 
 
 be said to remain, not on account of the change of membership, 
 but notwithstanding such change. 
 
 When we say that these elements of a corporation are charac- 
 teristic of it, we mean that they exist in their fullness only in 
 corporations, and hence serve to distinguish corporations from 
 all other kinds of combinations. 
 
 It is true that there are certain combinations known as joint 
 stock companies, in which there is succession of membership but 
 in these there is not that complete merger of the individuals into 
 one body that the law accords to corporations, viewed either as ' 
 legal entities, or combinations of individuals. Ordinary partner- 
 ships possess neither of these elements. They are not regarded 
 as legal entities and every change of membership changes the 
 partnership or firm. 
 
 There are other elements of a corporation consisting of powers 
 which may be exercised by them. These are not characteristic 
 of corporations but are possessed by them in common with natural 
 persons and other kinds«of combinations. Some of these powers 
 are essential to corporate life arid activity; others are not ab- 
 solutely essential but are practically so ; and others are not essen- 
 tial to corporate existence but are helpful and usual. These dif- 
 ferent powers have been enumerated and classified just above, and 
 will be discussed now without special reference to those classifi- 
 cations. 
 
 A corporation cannot live and accomplish any corporate purpose 
 unless it has a corporate name, and has some power to own and 
 use property, and to contract. "Without these elements it could 
 engage in no enterprise and accomplish no purpdse. 
 
 Another essential to a corporate being, as almost uniformly 
 stated in the authorities, is the power to sue and be sued in the 
 corporate name. As has been stated, capacity to have legal rights 
 and owe legal duties is inseparable from the law's conception of 
 a person. Having a legal right necessarily involves having capa- 
 city to control others by law. Owing legal duty, necessarily in- 
 volves subjection to control by law. Legal control, in the great 
 majority of instances, is exercised through the courts. So that 
 declaring that a corporation may have rights and owe duties is 
 legally equivalent to saying that it may sue and be sued. 
 
 Power to have a common seal and to make by-laws are exceed-
 
 324 AMERICAN ELEMENTARY LAW. 
 
 ingly important in corporate existence. The corporate seal affords 
 a safe and appropriate way of attesting corporate action, and the 
 power to make by-laws or rules for the regulation of its business 
 is almost, if not quite, indispensable to corporate activity. 
 
 The power to receive and enjoy special privileges is an impor- 
 tant one. These special privileges are capacities or advantages 
 not ordinarily enjoyed as of common right. They are usually 
 classified as franchises and immunities. 
 
 A franchise is an affirmative privilege, power, or advantage, not 
 exercisable or enjoyable as of common right, but which is con- 
 ferred by special grant from the sovereign. The two ideas es- 
 sential to a franchise are, first, that the privilege does not exist 
 as of common right but, second, has been received and is held 
 under special grant from the sovereign. There is a loose use of 
 the term in which it includes all corporate capacities or priv- 
 ileges. If these are to be regarded as franchises at all, they are 
 such only in a very limited sense and are included in the 
 franchise to be a corporation. 
 
 In the earlier history of corporate law, when corporations were 
 created only by special grant the privilege thus conferred in fact 
 was, and was properly designated as, a franchise. The term has, 
 however, lost much of its force in this connection since the passage 
 of laws authorizing the creation of corporations under general 
 enabling acts, which may be taken advantage of by almost all 
 persons. Still, as most of the acts require some special qualifi- 
 cation for incorporators, they can hardly be said to be matters of 
 common right. The other idea of grant of authority from the 
 sovereign still remains, though it can no longer be accurately 
 designated as a special grant. The power to organize into and be 
 a corporation is, therefore, still a franchise. It is, however, a 
 franchise enjoyed by the incorporators or members of the cor- 
 poration, and not by the corporate entity which results from the 
 exercise of this franchise by the incorporators. 
 
 Franchises are usually, if not always, affirmative privileges or 
 powers, authorizing action. 
 
 Negative privileges are properly called immunities. These 
 rarely, if ever, authorize action or confer positive rights. They 
 are rather exemptions from burdens that are born by persons 
 generally. Probably the most common example of immunity is
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 325 
 
 freedom from taxation. The general rule of law is that taxation 
 should be equal and uniform. If the law relieves any person, 
 natural or artificial, from liability from his proper share in this 
 burden, such exemption would be, not a franchise, but an im- 
 munity. 
 
 Another of the powers usually enjoyed by a corporation, though 
 by no means essential to corporate being, is the privilege of issuing 
 shares of stock as evidence of membership and of rights in the 
 corporation. Such shares are exceedingly convenient as evidence 
 of the respective rights and liabilities of members as among them- 
 selves and in the corporation. 
 
 Shares of stock are so closely connected with membership in 
 the corporation and with corporate capital, that further discussion 
 of them is deferred until we reach those subjects. 
 
 Another ordinary incident to corporate operations is freedom 
 of its members from liability for debts of the corporation beyond 
 the amount represented by the shares held by each. This limited 
 liability is not essential to corporate organization. In England 
 and Scotland, there is no such limit unless special provision there- 
 for is made in the charter. The prevailing rule in the United 
 States, however, is that the stockholders of a corporation are 
 not bound for its debts. Each stockholder, upon subscription, 
 owes the corporation for the full amount of the face value of the 
 shares held by him, and at all times thereafter such balance as 
 may remain unpaid on this subscription. Provision is frequently 
 made, in case of insolvency by the corporation, for the collection 
 of any debt due from the shareholder to the corporation for his 
 shares, and the application of the money to the debts of the con- 
 cern. This, however, is not making the shareholder pay the debt 
 of the corporation. It is simply compelling him to pay his own 
 debt to the corporation and passing the money to the corporate 
 creditor or creditors. 
 
 Whether or not the members of corporations created by any 
 State or by the Federal Government shall be liable for all the 
 debts of the concern, or to some less extent, or not at all, is de- 
 termined by the law governing the creation of the corporations. 
 While the American rule is, as stated, that the shareholder is 
 not responsible for the debts of the concern, this is not of universal 
 application. Quite frequently the shareholder is made responsible
 
 326 AMERICAN ELEMENTARY LAW. 
 
 for the debts of the company to an amount equal to the full face 
 value of the shares held by him. In such cases, if the shareholder 
 has not fully paid for his shares, he is liable for the balance as 
 for a debt due the corporation, and in addition is liable to the 
 creditors in an amount not to exceed the full face value of the 
 shares. If he has paid for his shares in full he is only liable for 
 the item last named. 
 
 Different Kinds. 
 
 Corporations are usually divided into public, gwom-public, and 
 private corporations. 
 
 Public Corporaions. — Public include those that are organized 
 for governmental purposes. Such, for example, as the United 
 States Government, the several State Governments, and incorpo- 
 rated cities and towns. 
 
 Less closely organized political subdivisions, such as counties, 
 school districts, etc., are frequently called giwm'-corporations, thus 
 indicating the lack of compactness and thoroughness of organ- 
 ization. The doubt implied in the use of the qualifying term 
 quasi relates to this lack of organization, and not to the public 
 nature nor the purpose for which the imperfect organization is 
 provided. As public corporations of different sorts are dealt 
 with in another connection, they need not be further considered 
 here. 
 
 Quasi-Public Corporations. — This term is frequently used to 
 indicate corporations which, though organized for private gain, 
 still subserve public purposes, such as railroad and telegraph 
 companies, water and light companies, etc. Here the doubt im- 
 plied in the word quasi relates, not to the organization, nor to 
 the fact of corporate life, but as to whether or not the corporation 
 should be regarded as a public or private enterprise. 
 
 The activities and businesses pursued by these corporations are 
 essentially public in their nature, but when private individuals 
 organize and operate such companies it is always with the view 
 to their individual gain. The public nature of the business makes 
 the company a public utility and subjects it and its operations to 
 special regulation and supervision which would not be tolerated 
 as to strictly private enterprises. Yet the capital employed and 
 the profits earned and the management, save as affected by the
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 327 
 
 special supervision and regulation above referred to, are all 
 private. 
 
 It is not surprising that the law has found some difficulty in 
 correctly classifying these companies. It has been quite cus- 
 tomary to deal with them under the title of quasi-public corpora- 
 tions. The tendency of the later authorities, however, is to re- 
 gard them as private concerns and to deal with them as private 
 corporations. Much, if not all, that has been or will be said in 
 the text regarding strictly private corporations is equally ap- 
 plicable to these. 
 
 Private Corporations. — As indicated in the preceding para- 
 graph, and by the definitions heretofore given, private corpora- 
 tions include all those organized for the purpose of private gain, 
 whether the business or enterprise in which they engage is strictly 
 private or governmental in its nature. Private purposes for 
 which corporations may be chartered is a matter of statutory 
 regulation, it being one of the fundamental rules of corporate 
 law that private corporations cannot be created by private in- 
 dividuals without express authority of written law. 
 
 The several State Governments can authorize the creation of 
 private corporations for any and all purposes except so far as 
 they are forbidden to do so by the Constitution of the United 
 States or of the respective States. There is no express authority 
 in the Constitution of the United States for the creation of cor- 
 porations by Congress, and no such general power exists. Con- 
 gress may, however, charter gwasi-public corporations whenever 
 doing so is reasonably necessary to enable the Federal Government 
 to effectively exercise any of the powers conferred upon it by the 
 Constitution. It is under this implied power that National Banks 
 are chartered, and that a few railroad companies have been created 
 by Congress. 
 
 Stock Corporations. — By far the most important class of private 
 corporations are those which are organized, or at least capitalized. 
 on the basis of shares of stock, and usually known as stock cor- 
 porations. Our subsequent treatment of the subject will be 
 largely confined to companies of this kind. 
 
 How Formed. — It is customary to say that private corporations 
 are created by the State. This is true to the extent that the State 
 must always assent to and take part in such creation. It is, how-
 
 328 AMERICAN ELEMENTARY LAW. 
 
 ever, misleading in so far as it seems to carry the idea that a 
 private corporation may be brought into being by the action of 
 the State alone. This cannot be done. The assent and co- 
 operation of the members of the private corporation are as es- 
 sential to its creation as is action by the State. Neither Con- 
 gress nor the Legislature of any State can authoritatively require 
 any person or collection of persons to invest their money or 
 engage in any designated business enterprise. This can no more 
 be done under the guise of chartering a private corporation than 
 by any other method. It may, therefore, be taken as settled law, 
 that co-operation between the government and private individuals 
 is essential to the creation of any private corporation. 
 
 The foregoing statement is not true as to public corporations. 
 Each State may create such political subdivisions within its bor- 
 ders and give to them such corporate organization as it sees fit, so 
 long as it does not interfere with vested private rights in so do- 
 ing. The State can change the boundaries of counties or school 
 districts as it sees fit, taking care always to protect the vested 
 rights of the creditors of the former county or district. It can 
 withdraw or repeal the charter of a city and substitute an en- 
 tirely new form of city government as it sees proper, provided 
 always it protects the vested rights of creditors and of others who 
 would be affected by the change. 
 
 The validity of such action by the State is not dependent upon 
 the assent of the individuals living in the territory thus dealt 
 with. It is true that such action is very rarely taken except upon 
 request or consent of the citizens to be affected. This, however, 
 is due to a sense of propriety and not lack of governmental 
 authority. 
 
 At Common Law. — It is said that at Common Law there were 
 four ways of creating corporations: By Common Law grant, by 
 grant by the king, by prescription, and by act of Parliament. 
 
 The first and second of these methods have no application to 
 American law and cannot be regarded as having been brought 
 over from England into our American system. Whether or not 
 a private corporation can be created within the United States by 
 prescription. I have not found decided; but as there can be no 
 Common Law grant or grant from the Executive Department to
 
 SPECIAL RELATIONS AFFECTING LEGAL EIGHTS. 329 
 
 form the presumptive basis of such prescriptive right, it is 
 practically certain that no such corporation could exist. 
 
 By statute. — Practically the sole method of creating private 
 corporations within the United States is by legislative action. 
 In those cases in which the Federal Government may create pri- 
 vate corporations it acts through Congress. The States act 
 through their respective Legislatures. 
 
 There is nothing in the Federal Constitution expressly con- 
 ferring the power to charter private corporations on any depart- 
 ment of the government. After protracted controversy it is now 
 the settled doctrine that Congress can, in the exercise of its gen- 
 eral legislative powers, or for the benefit of the whole Union , 
 charter private corporations as an incident or means for properly 
 carrying out any of the express powers conferred upon the Fed- 
 eral Government. Congress also has the power to create private 
 corporations within the District of Columbia, and in any Ter- 
 ritory within Congressional jurisdiction as such. 
 
 There are two methods of creating corporations by legislative 
 action; one, by special act chartering the particular corporation 
 created thereby ; the other, by passing a general law authorizing 
 the formation of corporations for designated purposes and in 
 designated ways by persons possessing designated qualifications. 
 These laws are known as general enabling acts. 
 
 The Federal Constitution does not prescribe how private cor- 
 porations may be created by Congress so that in the instances in 
 which Congress is competent to act, it may authorize corporations 
 either by special charter or by general enabling act. It has in 
 fact pursued both methods, and its action under each method has 
 been sustained by the Supreme Court of the United States. 
 
 In the absence of inhibition in the State Constitution the 
 Legislature may adopt either of these methods to the exclusion 
 of the other, or may use both concurrently. In several of the 
 States, there are provisions in the Constitution against creating 
 private corporations by special act. The purpose is to prevent 
 the Legislature from conferring special or monopolistic privileges 
 or franchises upon particular corporations. 
 
 Enabling acts specify, with more or less particularity, the pur- 
 poses for which corporations may be created under them. Natur-
 
 \ 
 
 330 AMERICAN ELEMENTARY LAW. 
 
 ally, these purposes differ somewhat in the different States though 
 there is fair uniformity among them with regard thereto. 
 
 Powers. — As private corporations can only be created by the 
 joint action of the government and of private individuals, it is 
 evident that the agreement between the State and these individ- 
 uals from which the corporation results is the standard and 
 measure of the rights and powers possessed by the corporation. 
 These powers, speaking in very general terms and yet announcing 
 a mandatory rule of law, are to carry out the corporate enterprise 
 by means of the corporation as an active agency. This is the 
 real intent and purpose of the agreement ; for this it is entered 
 into. Strictly speaking, neither party to the agreement, that is, 
 neither the State nor the members of the corporation collectively 
 nor singly, has any legal right to add to or take from this agree- 
 ment, or to disregard or violate it. The corporation resulting 
 from this agreement is equally bound by it, not as a party to 
 the contract, but as a creature deriving its life therefrom. 
 
 It is readily apparent that it is very important to have correct 
 legal ideas concerning this agreement, how it may be entered into, 
 in what it consists, and the rules of law by which it is to be inter- 
 preted. These matters will be considered more carefully under 
 the head of Charters and Membership. 
 
 The powers of a corporation are of three general classes : 
 
 (1) Those implied by law as necessarily involved in corporate 
 existence. 
 
 (2) Those expressly conferred by the charter. 
 
 (3) Those implied by law as reasonably necessary to enable 
 the corporation to carry out the powers expressly conferred by 
 its charter. 
 
 The powers incident to corporate existence are the following : 
 
 (1) To have continuous existence for the term limited in 
 the charter. 
 
 (2) To sue and be sued in its corporate name. 
 
 (3) To contract to the extent necessary to carry out the cor- 
 porate purpose. 
 
 (4) To own and use property, both real and personal, to 
 enable it to carry out its purpose. 
 
 (5) To have a common seal. 
 
 (6) To make by-laws.
 
 SPECIAL. RELATIONS AFFECTING LEGAL RIGHTS. 331 
 
 Powers expressly conferred by the charter depend, in each case, 
 upon the charter of the corporation and its legal construction. 
 It is to prevent undue discrimination in favor of particular cor- 
 porations in the grant of these powers that a number of the State 
 Constitutions forbid the Legislatures to charter corporations and 
 require them to pass general enabling acts which will be uniform 
 as to all corporations created under them. 
 
 There is some difference of opinion as to the exact force and 
 scope of the doctrine of powers implied in behalf of the corpora- 
 tion as incidental to those specially conferred. By some courts 
 it is said that the law will imply all such powers as are proper to 
 be exercised in carrying out the express power. Other courts say 
 that the power must be reasonably necessary to carry out the 
 express power, while still others say that the powers must be 
 necessary. The rule announced in the second expression, that is, 
 that those powers which are reasonably necessary to the proper 
 carrying out of those expressed in the charter, and none others 
 will be implied, is sustained by principle, and apparently by the 
 weight of authority. 
 
 Ultra Vires. — It is familiar American law, though the rule is 
 different in England, that a corporation has no powers not con- 
 ferred by charter and that the three classes of powers above enu- 
 merated cover all that are conferred, so that anything done or 
 attempted to be done beyond these powers is ultra vires. 
 
 There is a great deal of confusion on this subject, and much 
 of it is attributable to a loose use of the words, including in them 
 acts and omissions which are open to other legal objection besides 
 mere want of authority. The true meaning of the term is beyond 
 power, that is, simply unauthorized, and they should be limited 
 to cases in which the transaction is, in its nature, unobjectionable, 
 but is outside the charter powers of the corporation. 
 
 As to agreements. — It is as much beyond the lawful authority 
 of a corporation to enter into an illegal agreement as it is of an 
 individual, but such attempt at contract fails, not because the 
 charter of the corporation did not authorize it to enter into it, 
 but for the more fundamental reason that the agreement, in Its 
 nature, is contrary to law, and will not be recognized and enforced, 
 without reference to the particular parties who attempt to enter 
 into it. We must, therefore, discard from our present consider-
 
 332 AMERICAN ELEMENTARY LAW. 
 
 ation all agreements which are affirmatively unlawful, leaving 
 them to be dealt with in the books on Contracts, and confine our- 
 selves to such contracts by corporations, or their representatives, 
 as are in themselves permissible, but are beyond the powers of 
 the particular company whose conduct is under investigation. 
 We will find it profitable here to separate agreements from torts. 
 
 An ultra vires agreement, considered and judged by itself, un- 
 aided by other facts or circumstances, is never enforced by law. 
 That is, an ultra vires agreement, unexecuted on both sides, can 
 not be the basis of a legal right or legal duty. No action can be 
 maintained on it to compel specific performance of the under- 
 taking, nor for damages for refusal to perform. On the other 
 hand, such an agreement, fully performed, will be recognized as 
 a sufficient basis for rights acquired and vested thereunder, and 
 neither party can maintain an action for rescission and to be put 
 in statu quo because of such defect in the agreement. In these 
 extreme cases we have no difficulty. The uncertainty exists as to 
 cases in which there has been partial, but not complete, perform- 
 ance. 
 
 As to agreements in these conditions, there are three different 
 holdings : 
 
 (1) That partial execution, if it has gone so far as to make 
 it impracticable to put the parties in substantially the same con- 
 dition as they were before, vitalizes the agreement, or estops the 
 party in whose favor performance has been made from setting up 
 the defect in the agreement, and it thus becomes practically a 
 contract which will be enforced according to its terms. 
 
 (2) That partial execution will estop the benefited party from 
 setting up the defect in the agreement until he puts the other 
 person in statu quo, and hence will validate and enforce the agree- 
 ment, unless he gives back the advantage received, or in good 
 faith offers to do so, in which case he would be discharged. 
 
 (3) That equity will require the benefited party to put the 
 other in statu quo, and, while it will not enforce the agreement 
 according to its terms, it will compel restitution, or repayment, 
 ot such other action as may be just and right in the premises. 
 
 As to torts. — As torts are always unlawful, it follows that, in 
 a strict sense, all torts by corporations are unauthorized. It does 
 not follow, however, that a corporation has no actual power to
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 333 
 
 commit a tort. On the other hand, it is daily demonstrated that 
 they have such power, and are constantly exercising it. It is 
 this actual power and practical condition to which the law looks, 
 and for the wrongful acts done or omissions suffered a corporation 
 must make compensation. Just as in case of a natural person a 
 tort by him is always unauthorized by law, yet, in fact, he does 
 the wrong and his lack of lawful authority does not shield him. 
 It is practically settled, in both the Federal and State Law, that 
 a corporation is responsible for torts of its agents and representa- 
 tives in the same manner and to the same extent that a natural 
 person is responsible for the torts of his agents and represen- 
 tatives.
 
 CHAPTER XVII. 
 
 SOME SPECIAL RELATIONS AFFECTING LEGAL BIGHTS AND DUTIES 
 
 (CONTD.) 
 
 RELATIONS BASED ON CO-OPERATION AND COMMUNITY OF INTEREST 
 
 ( CONTD.) 
 
 CORPORATIONS ( CONTD.) 
 
 Charter. — The charter of a private corporation created by spe- 
 cial act of the Legislature consists of this act read in the light of 
 all applicable constitutional provisions. The charter of a cor- 
 poration created under a general enabling act consists of the 
 articles of incorporation filed under the terms of such act. taken 
 in connection with the enabling act, and all other applicable stat- 
 utory and constitutional provisions. 
 
 In cases of corporations created by special act there can be but 
 little difficulty in ascertaining what instrument constitutes the 
 charter. It is the special act passed by the Legislature and ac- 
 cepted by the incorporators. Serious questions may arise as to 
 the validity or proper interpretation of this act in whole or in 
 part, but that the special act, so far as it is constitutional and 
 valid, when properly construed, is the charter, does not admit of 
 doubt. 
 
 Difficulty, however, is sometimes found in ascertaining what is 
 the charter of the company organized under a general enabling 
 act. All such acts require the execution and filing in some public 
 office of a written statement as to the name and purpose of the 
 corporation, its location, amount and shares of stock, if it be a 
 stock company, the length of time the corporation is to exist, the 
 names of those who are to be its first officers, and the names of 
 some of those who are its stockholders. This instrument is rarely, 
 if ever, required to contain any statements as to the method of 
 corporate organization or action, or as to the powers of the cor- 
 poration. Sometimes this instrument is called a charter in the
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS, 335 
 
 enabling act, though more frequently it is designated as articles 
 of incorporation. 
 
 It is perfectly clear that if the powers of the corporation and 
 its manner of action are to be derived from its charter, that if 
 the written instrument above referred to is the charter of 
 a corporation created under an enabling act, the corporation 
 so created would be a failure. Unless the corporation has pow- 
 ers beyond those to be ascertained from this written instru- 
 ment considered by itself, it can do nothing effective in the busi- 
 ness world. So the law holds that the charter is the written in- 
 strument and so much of the enabling act as is applicable to cor- 
 porations created under it for the purposes and of the kind men- 
 tioned in the written instrument, read, of course, in the light of 
 all applicable constitutional provisions. 
 
 To ascertain what is really the charter of the corporation 
 created under a general enabling act, we must therefore look : 
 
 (1) To the written instrument prepared and executed by the 
 proposed incorporators and ascertain the nature and purposes of 
 the corporation sought to be created. 
 
 (2) Next we must ascertain whether or not the general enabling 
 act authorizes the creation of a corporation of that kind and for 
 those purposes. 
 
 This inquiry is absolutely essential. No corporation can be 
 created by the act of private individuals alone. The State's 
 assent to and co-operation in the creation of the corporation is 
 imperative. This action on the part of the State as to the kinds 
 of corporations specified in the general enabling act and the pur- 
 poses for which corporations may be formed, is evidenced by the 
 passage of that act and is limited thereby. For individuals to 
 undertake to form a corporation of some other kind or for other 
 purposes than those provided for in the enabling act, would be 
 for them to create a corporation without the concurrence of the 
 State. So-called articles of incorporation or charters, filed by 
 individuals but not contemplated by the enabling act under which 
 such action is claimed to be taken, are necessarily inoperative as 
 efforts to create a corporation. Such an instrument, under some 
 conditions, might be regarded as an agreement between the parties 
 out of which legal rights and duties might grow, but it could not 
 be the basis of corporate life.
 
 336 AMERICAN ELEMENTARY LAW. 
 
 If, however, the corporation and purposes indicated by this 
 written instrument are within the provisions of the enabling act, 
 the corporation will be created by the filing of the instrument in 
 accordance with law. 
 
 As this corporation is created under the enabling act it de- 
 rives its powers therefrom and so much of the enabling act as is 
 valid and applicable to that particular corporation created for 
 the specified purposes, taken in connection with the written in- 
 strument filed by the incorporators, is the charter of the cor- 
 poration. 
 
 Cliarter as a Contract. — For years it has been the settled doc- 
 trine of the American courts that the charter of a corporation, 
 whether the company be created by special law or general enabling 
 act, is a contract. Properly understood and limited, this doctrine 
 is unquestionably true. However, it is easily susceptible of un- 
 true and improper application and interpretation. 
 
 The charter of a corporation is a true and genuine contract, 
 having all the required elements of an enforceable agreement: 
 
 (1) As between the State, on the one hand, and the aggregate 
 or combined body of incorporators, on the other ; and, 
 
 (2) As between each individual incorporator and the combined 
 body of incorporators. 
 
 The corporation regarded as a legal entity cannot, in the nature 
 of things, be a party to the contract which brings it into existence. 
 As to it, the charter is its law of being, absolutely and impera- 
 tively binding upon it, not because it was in existence and gave 
 its consent to the charter when it was formed, but because the 
 charter brought it into life and gives to it all of its capacities and 
 powers. 
 
 It might be said that, though the corporation was not in exist- 
 ence when the agreement, evidenced by the charter, was formed, 
 after the corporation came into being, it adopts or ratifies the 
 charter. The objection to this view is that it is not possible in 
 law nor true in fact. A corporation, non-existent at the time 
 the contract was made, cannot ratify such contract under the 
 settled rules of law. Again, both ratification and adoption are 
 necessarily based on voluntary action and agreement can neither 
 be ratified nor adopted by a person, natural or artificial, who 
 is not free to reject it. No one would contend that a corporation
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 337 
 
 is legally free to reject and repudiate its charter. Beside this, 
 no corporation in fact goes through any such process as ratifica- 
 tion or adoption of its charter in order to make its provisions 
 binding upon it. The corporation regarded as a legal entity 
 therefore, cannot truly be said to be bound by its charter by reason 
 of agreement on its part. The agreement is between the State 
 and the body of incorporators, and each of these parties is bound 
 by it as such. The legal entity results from this agreement and 
 is bound by it, not on account of its assent thereto, but because 
 it derives its life therefrom and has only such life, and is legally 
 capable of only such action, as is authorized thereby. 
 
 Returning to the question of the charter as a contract between 
 the State and the body of incorporators, or a corporation, using 
 this term to indicate the body of incorporators and not the legal 
 entity, we find that it has all the essentials of an enforceable 
 agreement. 
 
 (1) There are legally competent parties. The State is every- 
 where recognized as capable of entering into any agreements not 
 forbidden by the Constitution of the United States nor of the 
 particular State, nor by those fundamental moral principles 
 which protect the health, safety, and morals of the people. 
 
 The law ordinarily regards all persons capable of entering into 
 ordinary agreements as competent to become members of cor- 
 porations. In some instances competency for this purpose is 
 limited. For instance, it is sometimes provided that a portion 
 of the incorporators must be residents of the State granting the 
 charter. In other cases, it is enlarged, as by statutes authorizing 
 married women to act as original incorporators. In every case, 
 those proposing to join in the creation of the corporation must 
 be competent under the law authorizing it. 
 
 The consideration, as between the State and the body of in- 
 corporators, is readily apparent. It consists in the mutual prom- 
 ises of the parties and in the benefit that each is to derive from 
 the co-operation of the other in forming the corporation and from 
 the carrying out of the corporate business. 
 
 The corporate enterprise and the purpose for which the cor- 
 poration is created must be expressly authorized by law, so that 
 in this sense we must have legality of purpose. The purpose 
 must also be legal in a deeper and broader sense. The State can- 
 
 22
 
 338 AMERICAN ELEMENTARY LAW. 
 
 Dot, by agreement with individuals, bind itself to part with or 
 abandon the exercise of its sovereign prerogatives and hence 
 cannot, by a charter, cut itself off from the proper exercise of 
 its police power. 
 
 This doctrine is well illustrated in the case of Stone v. Mis- 
 sissippi, 101 U. S. 814. In that ease the Legislature of Missis- 
 sippi had granted a charter to a lottery company. The company 
 organized and paid the State a considerable sum of money for 
 the charter and for the privilege of doing business in the State. 
 A later Legislature passed an act repealing the charter. The 
 company refused to recognize the validity of this act, claiming 
 that the charter was a contract and its validity could not be im- 
 paired by State legislation. The Supreme Court of the United 
 States held that the clause in the Federal Constitution, taking 
 from the States the power to impair the obligation of contracts, 
 was controlling upon the legislative action of a State but as the 
 maintainance of a lottery is immoral and against public policy the 
 charter of the company had never been a valid contract and the 
 constitutional doctrine was not applicable. 
 
 Charters must be evidenced in the manner and form provided 
 by law, so in this respect, they comply with the requirements of 
 the law as to contracts. 
 
 Charters are also contracts between the body of incorporators 
 and each individual incorporator. The discussion as to parties, 
 consideration, legality of purpose, and form, contained in the 
 preceding paragraph, is equally applicable here. 
 
 These four essentials of contract cannot be discovered or traced 
 if we undertake to regard the charter as evidencing any contract 
 except the two above indicated. 
 
 We have heretofore endeavored to show that a corporation 
 regarded as a legal entity brought into being by its charter, can- 
 not be contractual party thereto. 
 
 It is because the charter is a contract between the State and 
 the body of incorporators as such, that the State is legally au- 
 thorized and justified in holding these incorporators and their 
 successors in right bound by the terms of the charter, and in en- 
 forcing appropriate penalties against them for violation of its 
 terms. 
 
 It is because the charter is a contract between each individual
 
 SPECIAL RELATIONS AFFECTING LEGAL EIGHTS. 339 
 
 stockholder and the corporate body, that any stockholder, how- 
 ever small his share, may prevent the misuse and diversion of 
 corporate funds and willful corporate mismanagement. 
 
 It is because the.^charter is a contract as between both sets of 
 parties above mentioned that it comes within the protection of the 
 guarantee in the Federal Constitution against State legislation 
 impairing the obligation of contracts, and that the States are 
 forbidden to alter or repeal charters once validly and unreservedly 
 assented to. This is the fundamental doctrine of the great Dart- 
 mouth. College Case. 
 
 In recognition of this fact and of the further fact that it is 
 often desirable for the State to have practically full control over 
 corporations created by it, it is now customary to incorporate 
 either in the State Constitution or in the statutes authorizing the 
 creation of corporations the reservation of the right to repeal or 
 amend charters. Such provisions are regarded as parts of and 
 affecting all charters granted after their adoption. Under such 
 conditions, the State has a right to repeal charters granted by it. 
 It must, however, make proper and fair provision for winding 
 up the affairs of the company and protecting the legal rights of 
 all parties concerned. The reserved power to amend may also be 
 exercised. Amendments of little consequence made under this 
 reserve power are binding on the incorporators and the corpora- 
 tion. If, however, the amendment makes a material change in 
 the purposes or management or operations of the corporate en- 
 terprise, it is not operative without the assent of all the incor- 
 porators. If the amendment is not accepted by the incorporators, 
 the company must wind up its affairs. It cannot continue to 
 operate under the old charter because the State, one of the parties 
 to the agreement evidenced by that, has, under legally reserved 
 power, withdrawn its assent, and it is no longer a contract. It 
 cannot operate under the charter as amended because the incor- 
 porators have rejected that and it is not an agreement. The in- 
 corporators are, therefore, allowed a reasonable time within 
 which to accept the amendment, and if they do not do this, the 
 corporation is dissolved and its affairs must be wound up. 
 
 Charter as the Lata of Being to the Corporate Entity. — "While 
 it is true that the charter of a corporation is not an agreement 
 between the legal entity resulting therefrom and any other person
 
 340 AMERICAN ELEMENTARY LAW. 
 
 or persons, still it is absolutely binding upon this legal entity and 
 must be obeyed in every respect by it. This obligation is deeper 
 seated and more imperative than if voluntarily assumed. It is 
 a fundamental law of life. From the charter the entity de- 
 rives all its powers. It has no life except as conferred by it. No 
 power of action except in conformity with it. Deviation from it 
 in any respect must be unauthorized and unlawful. The result of 
 the deviation depends upon its nature and extent. If the sin is 
 small, the penalty is proportionately small; if the sin is great, 
 the penalty is proportionately great; if the sin is sufficiently 
 grievous, the penalty is death, usually designated forfeiture of 
 charter. 
 
 Capital Stock. 
 
 Capital stock is the aggregate amount of money which the 
 charter of a corporation provides is to be put into the corporate 
 enterprise. This, as all other matters, is of concern both to the 
 State and to the incorporators and is fixed by the terms of the 
 charter and can neither be increased nor diminished except by 
 agreement of both parties. 
 
 At Common Law, and in many of the States, the full amount of 
 stock mentioned in the charter must be taken by valid subscrip- 
 tion before the corporation can be organized and begin business. 
 In some of the States there is special authority for organizing 
 the company and putting it into actual operation when only a 
 designated portion of the stock has been subscribed for. This 
 gives rise to the necessity for distinguishing between the amount 
 of capital stock which may be issued, and that which has in fact 
 been issued. The first is called the authorized stock of the corpor- 
 ation, and the second, its actual stock. 
 
 The instances are very rare indeed in which one person would 
 desire and be able to pay for all the stock in the corporation. So 
 to facilitate the disposition of stock and to distribute the benefits 
 of the corporation and enlarge the number of the persons inter- 
 ested in it, this capital stock is divided into proportionate parts, 
 and offered for subscription in amounts less than the total of the 
 authorized stock. 
 
 These proportionate parts of the capital stock offered as sep- 
 arate investments are called shares and anyone who acquires a
 
 SPECIAL RELATIONS AFFECTING LEGAL EIGHTS. 341 
 
 share becomes a shareholder, or stockholder, or member of the 
 corporation. 
 
 Shares are ordinarily acquired by subscription and as the gen- 
 eral rule is that all shares must be taken before the organization 
 of the company subscriptions are generally made before the filing 
 of the charter. As the company is not then in existence it can- 
 not be a party to the contract. Many nice questions have a. isen 
 as to the manner in which subscriptions may be taken before the 
 charter is granted and as to the validity of these agreements 
 among the several subscribers. Most of these questions are, how- 
 ever, eliminated by statutes in the several States regulating the 
 matter. 
 
 In those States in which the corporations may be organized be- 
 fore all the stock is taken, the stock which is taken before organ- 
 ization is acquired by subscription under the local regulations 
 as in other eases. The stock which has not been subscribed when 
 the company is organized is a potential asset in its hands which 
 may be disposed of by it by subscriptions to which it is a party. 
 
 A subscription in this connection is a promise to take a desig- 
 nated amount of the stock of the corporation and pay for it a des- 
 ignated portion of its face value upon the organization of the 
 company if it has not been organized, or on some day agreed upon, 
 if the company is then in existence, and to pay the balance of the 
 face value of the stock at such times and in such manner as shall 
 be called for by the proper corporate authorities. It is an im- 
 plied term in every subscription unless it be expressly stated 
 therein that the subscriber will pay the full face value of the 
 stock and the amount in cash demanded of him shall be the same 
 in proportion to his stock as that demanded from every other sub- 
 scriber, and that future payments shall be required from all share- 
 holders at the same times on the same terms and in amounts pro- 
 portionate to the shares held by each subscriber. All subscrip- 
 tions for stock in the same corporation may, therefore, be said to 
 be related and mutually dependent contracts entitling all share- 
 holders to the same rights in proportion to their shares and sub- 
 jecting them to the same burdens in the same proportion. 
 
 In rare instances, stock may be acquired from a corporation 
 after its organization by purchase. Purchase here has the same
 
 342 AMERICAN ELEMENTARY LAW. 
 
 significance that it ordinarily has and means the acquisition of 
 a share from the company by sale upon terms agreed upon. If 
 the purchase is cash and the full face value of the share or over, 
 it seems that neither previous shareholder nor creditors' of the 
 company could complain. If, however, the purchase is for less 
 than the face value, or on credit to be paid for at times designated 
 in agreed amounts, the transaction does, under the ordinary cir- 
 cumstances, injure both the existing shareholder and the credi- 
 tors of the concern. Under ordinary conditions, the corporation 
 is not recognized as having the power to make such sales. If such 
 sales are sustained at all it is when the company is in such condi- 
 tion that its stock can be bought on the market for less than its 
 face value and not exceeding the amount paid or promised to be 
 paid for the stock. Under such circumstances it is sometimes to 
 the substantial interests of the company, and hence of its share- 
 holders and creditors, to permit it to make sales of this sort and 
 so obtain money to put into the business. 
 
 Shares of stock after they have been acquired from the com- 
 pany are transferable, all the rights and liabilities incident to the 
 share passing with its transfer. The transfer, however, does not 
 carry with it rights to dividend which have been declared pre- 
 vious to the transfer, nor subjection to calls for unpaid purchase 
 money on the share which have been made prior to the transfer 
 unless the corporation has a lien upon the share for such pay- 
 ment or the right to forfeit the share for non-payment. 
 
 Membership. 
 
 A member of a stock corporation is one of the persons who com- 
 pose the corporate body ; that is, a person who, with his associates, 
 was an original party to the contract with the State from which 
 the corporation resulted ; or one who, in conformity with that con- 
 tract, has been let in as an additional co-contractor on the side of 
 the individuals acting in its formation, by subscription after or- 
 ganization ; or one who, in conformity with that contract, has suc- 
 ceeded to the rights and responsibilities of such a former member ; 
 or, in rare instances, one who has been let in the contract on the 
 side of the individuals by purchase of stock from the corporation 
 after organization.
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 343 
 
 In all stock companies membership is incident to ownership of 
 stock. As indicated, membership may be acquired in four ways: 
 
 (1) By subscribing for stock before organization and being 
 one of the charter members. 
 
 (2) By subscribing for stock after organization 
 
 (3) By purchase or acquisition of stock from some holder after 
 he has acquired same from the company. 
 
 (4) In rare cases, by purchase of stock from the company after 
 incorporation. 
 
 Shares of stock are transferable, and the effect of sale is to 
 change the membership dependent on the sold share from the 
 seller to the buyer and to relieve the seller from liability for 
 future calls, and to entitle the buyer to all dividends thereafter 
 declared. 
 
 Rights Incident to Membership. — Membership ordinarily car- 
 ries with it the following rights and liabilities; if in any case 
 there is a departure from these it is exceptional, and the excep- 
 tion must be shown: 
 
 (1) Eight to participate in the government of the corporation 
 and its affairs by taking part in stockholders meetings. 
 
 (2) Right at reasonable times and for proper purposes to in- 
 spect the books and records of the concern. 
 
 (3) Right to share in dividends. 
 
 A dividend is a percentage of the profits of the corporate busi- 
 ness which by action of the proper authorities has been withdrawn 
 from the corporate fund and distributed for the benefit of the 
 members in proportion to their shares of stock. 
 
 After a dividend is declared and before it has been paid it is a 
 debt due by the corporation to the shareholder. 
 
 (4) Right to preference in subscription for increased stock in 
 proportion to his present holding. 
 
 (5) Right to share in the distribution of the assets upon disso- 
 lution of the concern. 
 
 (6) In extreme cases the right to control the conduct of the 
 corporation and its officers in carrying out the corporate business. 
 
 As membership is dependent upon ownership of shares of stock, 
 those rights and liabilities which are in their nature apportion able 
 exist in proportion to the shares held by the party. Thus, at a 
 stockholders meeting the votes arc taken per share, and no1 per
 
 344 AMERICAN ELEMENTARY LAW. 
 
 member, assessments are made and dividends paid on the same 
 basis. 
 
 A dividend is a percentage of the profits of the corporate en- 
 terprise withdrawn from the business, and distributed among the 
 members in proportion to their shares of stock. 
 
 Liabilities Incident to Membership. — The first liability is to pay 
 to the corporation, or its representatives, the amount of subscrip- 
 tion to stock, upon proper assessment and call. 
 
 An assessment is the fixing of the amount of money needed by 
 the corporation for a given purpose or purposes, and distributing 
 the amount among the several shareholders in proportion to their 
 respective shares, thus fixing the sum or per ^ent per share that 
 each stockholder is to pay. 
 
 A call is a demand made upon a stockholder for his share of an 
 assessment. 
 
 The corporation, while a going concern, has, at Common Law, 
 the right to sue for the amount of any assessment upon failure 
 by stockholders to pay, after notice. There are two common stat- 
 utory remedies : forfeiture of the stock, and sale of the stock with- 
 out suit. 
 
 In case of insolvency, absolute, or in some instances going no 
 further than present inability to command cash with which to 
 make immediate payment, the creditors of the company may pro- 
 ceed against the stockholders and collect the amount unpaid on 
 their respective subscriptions, provided this does not exceed the 
 amount of the debt. 
 
 Internal Government, 
 
 Business management is vested in, or divided between, the 
 stockholders and board of directors. Ordinarily the stockholders 
 determine the general policy of the business and elect the board 
 of directors, make by-laws for their government, and leave to the 
 directors and officers elected by them the actual management of 
 the concern. 
 
 The directors are the managing body of the corporation, and for 
 it and in its name carry on its business. They elect its officers, 
 usually from among themselves, and define their duties, when not 
 prescribed in the by-laws, and overlook their affairs. The general
 
 SPECIAL RELATIONS AFFECTING LEGAL BIGHTS. 345 
 
 officers usually select and employ their respective subordinates in 
 their several departments. 
 
 Corporate Funds. 
 
 The assets or funds of a stock corporation consist, at first, of its 
 capital stock, and, subsequently, of all property and valuable fran- 
 chises acquired by it in the prosecution of its business, either by 
 realizing on its corporate stock or capital, or by profits in its busi- 
 ness, or otherwise. The property acquired in any of these ways 
 may be utilized in the prosecution of the business, and in this there 
 may be many purchases and sales, and purchases again, but 
 through all these mutations in the things owned, so long as the 
 ownership is in the corporation, the things constitute corporate 
 assets or funds, and are to be dealt with as such. 
 
 This brings us to the mooted question whether or not the assets 
 of a corporation are a trust fund. There is a great deal now being 
 said in the decisions of courts and the magazine articles on both 
 sides of the question. The question seems to me to be more a 
 matter of words than of substantial difference. When the Su- 
 preme Court of the United States says that a corporation owns its 
 property just as an individual or natural person owns his, and 
 some State supreme court says that the assets of a corporation are 
 a trust fund, it seems that, technically, neither is correct, but that, 
 substantially, each is right from the point of view each occupied 
 at the time. 
 
 That a corporation owns its assets, in the full sense of the term, 
 just as an individual owns his, I do not think can be said. The 
 individual has right of possession, without accountability to 
 anyone therefor. He has the right to use it as he sees fit, so long 
 as he does not interfere with the just rights of others in their per- 
 sons or property in so doing. He can change the use as he pleases. 
 He can even destroy the thing without incurring legal liability to 
 any other person. These incidents of ownership do not equally 
 exist in case of a corporation. It can not use the property in its 
 hands except for the furtherance of the corporate enterprise, 
 and has no right to destroy it except as such destruction may oc- 
 cur in the legitimate use of the property in the furtherance of the 
 corporate business. So, I think, it is inaccurate to say a corpora- 
 tion owns its property just as an individual owns his.
 
 346 AMERICAN ELEMENTARY LAW. 
 
 But it is certainly correct to say that a corporation is entitled 
 to equal protection of the law in the use and enjoyment of its 
 property for corporate purposes, and that its rights are as sacred 
 before the law and must be enforced with the same conscientious 
 regard for justice and law, as those of an individual. 
 
 On the other hand, the corporation certainly has power over its 
 property and an interest in it beyond those of an ordinary trustee. 
 In a technical sense, there is no strict relation of trustee and cestui 
 que trust; so that the technical- rules of procedure in such cases 
 should not be enforced. Still the property is charged with the 
 accomplishment of a certain purpose, and can not be lawfully 
 applied to any other, and if the managing officers of the corpora- 
 tion or any of the stockholders or any number of them shall at- 
 tempt to use it for other and different purposes, they can be re- 
 strained from so doing if the wrongful purpose is known before 
 its accomplishment, or can be held in damages if the wrong has 
 been consummated. This is certainly not true as to an individual 
 having general ownership of a thing. The trust fund theory, 
 therefore, has much of truth in it. 
 
 The foregoing observations apply while the corporation is still 
 attempting to carry on the corporate business. When the corpor- 
 ate enterprise is abandoned and the company ceases to be a going 
 concern, the trust idea becomes of much greater practical im- 
 portance. 
 
 In' those States holding to the trust fund theory, the moment 
 the corporate officers abandon the effort to carry out the corporate 
 purpose, their power over the assets ceases, except as trustees, to 
 use them in paying the corporate debts and turning over the sur- 
 plus, if any, to the stockholders. This trust must be discharged 
 fairly and without favoritism or preference between the creditors. 
 So in these States no preferential assignments can be made by a 
 corporation nor can any preferences be obtained in the distribu- 
 tion of the assets of an insolvent corporation by attachment or 
 other legal proceedings. 
 
 In general, we may say that creditors of a corporation, while it 
 is a going concern, have the same rights and remedies against it 
 that the creditors of a natural person have. This applies only to 
 private corporations, as public corporations enjoy privileges in 
 this regard not pertaining to individuals. In case of quasi-public
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 347 
 
 corporations there are some special rules and doctrines differing 
 from the strictly private, but we have not time to take up these. 
 
 Corporations T)e Facto, — General enabling acts always, and 
 special laws providing for the organization of corporations fre- 
 quently, require that individuals organizing the corporation, 
 under the authority conferred, shall perform certain acts. Ques- 
 tions necessarily have arisen as to the extent to which these pro- 
 visions must be complied with in order to bring the corporation 
 into being. 
 
 The rules on this subject are fairly well settled and may 
 be stated as follows : 
 
 (1) Literal compliance with the provisions of the valid law 
 always results in the creation of a lawful corporation. 
 
 (2) Substantial compliance with the terms of the corporate 
 law has the same result. 
 
 (3) Effort in good faith to comply though it falls a little short 
 of substantial compliance, and actual organization and entry 
 upon the corporate business, does not result in a corporation in 
 law, but does result in an organized combination of the individ- 
 uals known as a corporation de facto. 
 
 (4) Effort at performance of the requirements, even though 
 in good faith, which does not approximate substantial require- 
 ment does not create a corporation but leaves the rights and lia- 
 bilities of the parties to be determined by other rules of law. 
 
 (5) Effort at performance, not in good faith, and not strictly 
 in conformity with the statute does not result in the formation 
 of a corporation either de jure or de facto. 
 
 (6) Attempts to form corporations when there is no valid law 
 authorizing incorporation for the purpose or purposes named is 
 ineffective and does not result either in a corporation de jure or 
 de facto. This is true whether the attempt be made without the 
 semblance of statutory authority or in compliance with a legis- 
 lative enactment which is unconstitutional. 
 
 We may define a corporation de facto as an organization and 
 combination of persons resulting from a bona fide attempt on 
 their part to form a corporation under a valid law in which they 
 have not quite come up to substantial compliance but under 
 which they have actually organized and entered upon the cor- 
 porate business.
 
 348 AMERICAN ELEMENTARY LAW. 
 
 Before there can be a corporation de facto there must be: 
 
 First, a valid law under which organization is sought to be 
 made. 
 
 Second, the action of the incorporators must fall just a little 
 short of compliance with this law. 
 
 Third, just what this requirement means it is difficult, if not 
 impossible, to state more definitely. If the effort results in sub- 
 stantial compliance, a de jure corporation is formed; if it falls 
 unreasonably short of substantial compliance, no kind of corpo- 
 rate life results. The space between these two statements is 
 vague and in each particular ease must be determined by 
 the court from its own facts in the exercise of a sound discretion. 
 
 The action taken by the incorporators must be in good faith. If 
 there is any fraud or attempt at evasion of the law a corporation 
 de facto will not exist. 
 
 Fourth, the parties must in fact organize what they believe to 
 be a corporation and this corporation must actually enter upon 
 the corporate business. 
 
 So far as private persons are concerned a corporation de facto 
 stands in law upon the same footing as a corporation de jure. 
 Its rights will be protected and its duties enforced and the rights 
 of the respective members among themselves will be just the same 
 as if the corporation were one de jure. 
 
 When the relations between the State and the corporation are 
 considered from the standpoint of the State, the rule is quite 
 different. As there has been neither literal nor substantial com- 
 pliance with the terms of the law, the State has never in fact as- 
 sented to the formation of the corporation and its assent as as- 
 sumed by the members may be withdrawn at any time and the 
 charter or supposed charter declared forfeited and the business 
 of the concern wound up. In doing this the State must protect 
 the vested rights of the incorporators and creditors of the con- 
 cern. The procedure in such cases is usually practically the same 
 as in the dissolution of a corporation de jure by lapse of time or 
 for other reasons. 
 
 Foreign and Domestic Corporations. 
 
 A foreign corporation is one created by a government whose 
 laws are not enforced at the place at which the status of the cor- 
 poration is being considered. A domestic corporation is one ere-
 
 SPECIAL RELATIONS AFFECTING LEGAL RIGHTS. 349 
 
 ated under a law which is in force at the place where the matter 
 is being determined. 
 
 Under these definitions, a corporation created under the laws 
 of any foreign government or of any State in the Union beside 
 the one in which the status of the corporation is to be determined 
 is a foreign corporation. Under it corporations created under a 
 valid act of Congress in the exercise of its general powers, or un- 
 der the law of the State in which the question is pending is a 
 domestic corporation. A corporation created by Congress in ex- 
 ercising its jurisdiction in the District of Columbia or any of the 
 territories, is a foreign corporation, in any State or other Terri- 
 tory. 
 
 Domestic corporations have such powers, and such only, as are 
 conferred by their charters. Foreign corporations considered 
 strictly as such have such powers, and such only, in any given 
 State as are accorded to them under the rules of comity. Strictly 
 speaking, a foreign corporation is not legally entitled to recogni- 
 tion, existence, or the right to do business in any State outside of 
 that of its creation. In that it does business not as a foreign but 
 as a domestic corporation. 
 
 Corporations, legally speaking, are not citizens either of the 
 State in which they are created or of the State in which all, or a 
 majority, of their stockholders are citizens. Not being citizens, 
 they do not come within the protection of that clause of the Fed- 
 eral Constitution which guarantees to the citizens of each State 
 equal privileges and immunities in every other State in the 
 Union that the citizens of the latter enjoy. This clause, therefore, 
 does not interfere with the State's power to exclude foreign cor- 
 porations from its territory, or from doing business therein, or 
 from imposing such conditions upon their entry within its terri- 
 tory or doing business as the State shall see fit 
 
 It is quite customary for the several states to waive their right 
 of exclusion and under the law of comity to permit foreign cor- 
 porations to do business within their respective territory. In 
 later years it is, however, not unusual for the State to impose 
 reasonable conditions upon this privilege. These conditions 
 usually consist in requiring full and satisfactory disclosure of the 
 financial status and solvency of the concern, the payment of a 
 State tax or license fee, and taking out h permit or license. Such
 
 350 AMERICAN ELEMENTARY LAW. 
 
 restrictions are valid unless they contravene the Inter-State 
 Commerce Clause of the Federal Constitution or attempt to de- 
 prive the corporation of its right to litigate its legal rights in the 
 Federal Courts. 
 
 If a corporation is authorized by its charter to engage in com- 
 merce and does engage in commerce in such way and under such 
 circumstances that a particular transaction or series of transac- 
 tions is really Inter-State, or foreign commerce, such act or busi- 
 ness is within the exclusive regulation of Congress and the States 
 can neither forbid nor regulate it. 
 
 While the foregoing statement that a corporation is not a citi- 
 zen of the State creating it is an established doctrine of the Fed- 
 eral Courts that for the purpose of determining jurisdiction in 
 the Federal Courts, when this is dependent upon diverse citizen- 
 ship of the parties, it will be conclusively presumed that all of 
 the stockholders of the corporation at the date of the institution 
 of the suit were resident citizens of the State in which the charter 
 was granted, and the question of jurisdiction will be decided 
 on this presumption without permitting any proof to the con- 
 trary.
 
 CHAPTER XVIII. 
 
 PROPERTY. 
 
 One of the most important and complicated subjects with 
 which the law deals is property. Anything like a satisfactory 
 treatment of it would cover several volumes. It is too important, 
 however, to pass over without a very brief outline or treatment 
 of its general features. 
 
 There are three closely related ideas involved in the subject : 
 
 (1) The legal right of dominion over a thing, usually called 
 ownership. 
 
 (2) The subject matter of such dominion, or the thing owned. 
 
 (3) The legal evidence of ownership, or title. 
 
 While these three ideas are closely connected they are easily 
 separable and must not be confused. 
 
 OWNERSHIP. 
 General Conception. 
 
 Ownership involves dominion over the thing owned , the legal 
 right to have it, to use it, and to enjoy it, to do with it substan- 
 tially as one sees fit; subject only to the general rules of law 
 which prevent one from so using his own as to unjustly injure his 
 neighbor. 
 
 The word property is from the same root as the word appropri- 
 ate, the primary meaning of which is to take to one's self; to 
 apply to one's exclusive benefit. The word dominion, which is 
 frequently used as indicating ownership, signifies control, 
 authority over, power to do with according to one's will. Each 
 of these ideas is embraced in the law 's meaning of the word own- 
 ership. 
 
 The word property is often used as indicating this proprietor- 
 ship in and dominion over the thing, but more frequently it is 
 used with reference to the thing appropriated, or over which the 
 dominion may be lawfully exercised. On account of this dual
 
 352 AMERICAN ELEMENTARY LAW. 
 
 use of the word property, we will use the term ownership in this 
 immediate connection. 
 
 When the law recognizes the propriety of the appropriation of 
 a particular thing by a particular person and his dominion over 
 the thing, and undertakes to protect him therein his ownership be- 
 comes a legal right. 
 
 This right to acquire, hold and enjoy property is indispensable 
 to our present modes of life and its accompanying civilization. 
 Without some recognition of proprietary interest in and domin- 
 ion over particular things by particular persons, society could 
 not be maintained on anything like its present basis. 
 
 This conception of property and right of dominion is con- 
 ducive not only to the individual good, but to the general well 
 being of the community. It has always been conceded that these 
 property rights are not absolute and unlimited. When the law 
 says that it recognizes the dominion of a certain person over a 
 certain thing and will protect him in his claims thereto, it does 
 not mean that his dominion is absolute and not subject to recla- 
 mation by the public, nor that his use of the thing according to 
 his own will is unlimited. Because A has the undisputed and 
 unconditioned ownership of a gun is no reason that the law 
 should permit him to murder B with it; nor because B has fee 
 simple title to a tract of land is he therefore authorized to main- 
 tain upon it anything which would be a nuisance to his neighbor. 
 The law places reasonable limitations upon the dominion of the 
 owner over his property as well as upon the uses to which he may 
 apply it and the manner of such uses. 
 
 Elements of Ownership. 
 
 Using the term in its fullest legal sense, ownership embraces 
 five elements : 
 
 (1) The right of possession. 
 
 (2) The right to use. 
 
 (3) The right to receive profits or increment from. 
 
 (4) The right to change, that is, to modify or destroy. 
 
 (5) The right to dispose of. 
 
 When these five rights are combined in one person as to one 
 thing, without limit as to time, this is the highest estate which the 
 law knows. 
 
 Each of these rights in the owner is exclusive, except, of course,
 
 PROPERTY. 353 
 
 in cases in which there are a number of co-owners holding the 
 property rights in combination. The Common Law recognizes 
 several combinations of interests. These, however, are prin- 
 cipally important as to estates in land, and can be more appro- 
 priately treated in connection with that subject. 
 
 Bight of Possession, — Possession means immediate, physical 
 dominion over a thing. The word is used with reference to many 
 different kinds of things over many of which the physical do- 
 minion would, from the respective natures of the things, have to 
 be exercised in different ways. If a man has his purse in his 
 hand, we say it is in his possession ; if he places it in his pocket, 
 it is still in his possesion ; if at night he places it in his safe, it is 
 still in his possession. We say that he who occupies a house is in 
 possession of it, also that he is in possession of the yard and im- 
 mediately adjacent premises. If the claim of right under which 
 he occupies the house extends to a thousand acres of land on 
 which the house is situated, we say that he is in possession of the 
 whole tract. It is apparent that the man has not the same phys- 
 ical contact with, and power over, each of the things of which we 
 have affirmed that he was in possession. The one idea common to 
 all the different states of fact is, that the party said to be in pos- 
 session had the immediate physical dominion over the thing pos- 
 sessed. 
 
 The law stresses this idea of dominion to such an extent that it 
 frequently recognizes a thing as in possession of a person when 
 there is really no actual physical contact between it or any part 
 of it and himself. 
 
 Possession is called actual when it involves actual physical 
 contact and control exercised over the thing. 
 
 Possession is called constructive when there is the legal right 
 of physical dominion and control over the thing but no actual 
 contact or physical control over it or any part of it. 
 
 To illustrate ; if A is the legal owner of a tract of land and has 
 it all enclosed within a fence and lives upon it, in the strictest 
 sense he is in actual possession of the land. If he owns the tract 
 of land and has only a portion of it enclosed and lives upon it, he 
 is still, in legal contemplation, in actual possession of the whole 
 tract. He is in actual physical possession of a portion of it and 
 in order to sustain his legal right to the remainder the law re- 
 23
 
 354 AMERICAN ELEMENTARY LAW. 
 
 gards this physical dominion over the part as extending to the 
 whole. 
 
 If A owns a tract of land and neither he nor anyone else has 
 actual physical control over any part of it, A is, in legal contem- 
 plation, in constructive possession of the whole. He is legally 
 entitled to such possession and as no one has an actual physical 
 occupancy of the land, his legal right of possession draws to it- 
 self by construction of law immediate physical dominion over the 
 thing owned. 
 
 If A owns a tract of land, but is not in possession of any part 
 of it, and B enters upon it, encloses it all under fence and uses it 
 as his own, the law would recognize this as actual possession by 
 B. It is not legal but it exists in fact, and so existing the law 
 takes cognizance of it. 
 
 If A owns a tract of land and B enters upon and takes actual 
 possession of only a portion of it, such actual possession will des- 
 troy A's constructive possession of the part actually held by B, 
 but will have no affect upon the remainder. This last statement 
 must be taken with the qualification that under the statutes of 
 some of the States actual possession of a part of a tract of land 
 will draw to itself constructive possession of some designated 
 amount of the balance of the tract for the purpose of supporting 
 the statute of limitation. 
 
 If there are conflicting titles to a tract of land, so long as it is 
 not in the possession of either of the claimants, it is legally in the 
 constructive possession of the true owner. If either claimant 
 takes actual possession of any part of it, the other claimant not 
 being in possession, this will be regarded as actual possession of 
 the whole tract by the one actually occupying the part. 
 
 If there are two claimants and each is in actual occupancy of a 
 part of the land, the true owner will be regarded as in actual pos- 
 session of all not actually occupied by the adverse claimant whose 
 possession will be limited to the part actually enclosed by him. 
 
 It is apparent from the foregoing that the actual possession of 
 property may be taken wrongfully and hence may be in one per- 
 son when the legal right to the possession is in another. This is 
 always a legal wrong committed by the one taking possession 
 against the one entitled to it. Such unlawful possession should 
 always be surrendered to the true owner upon demand. If this is
 
 PROPERTY. 355 
 
 not done, the owner can always recover the possession of the 
 property unless the adverse holding has extended for such length 
 of time and under such circumstances as to constitute a bar under 
 the statutes of limitations. 
 
 While wrongful actual possession is never good against the 
 owner, unless it has ripened into a defense under the statutes of 
 limitations, it is not an invasion of the right of anyone except the 
 owner and so long as it remains undisturbed by the true owner it 
 may be, and frequently is, looked upon as sufficient evidence of 
 right in the thing possessed against anyone interfering with it 
 except the true owner. 
 
 Right to Use. — Ownership also carries with it the right to use 
 the thing owned. The right to use is the right to apply the thing 
 owned to benefit, convenience, or pleasure of the owner, that is, 
 the right to subserve his purposes by the employment of the 
 thing owned. This right extends to the application or employ- 
 ment of the thing in any way which does not unduly interfere 
 with the just rights of the public or of any individual. These 
 limitations are real and must constantly be kept in mind. Own- 
 ership does not carry with it the license to use the thing owned in 
 any way that the owner may see fit, but only the liberty to use it 
 with due regard for the just and equal rights of other persons. 
 
 The Right to Receive Profits or Increment From. — The next 
 incident of ownership is the right to receive pecuniary advantage 
 from the profits or revenues derivable from the thing owned and 
 the increment or increased value thereof. This is a very valua- 
 ble right, without which capital would practically lose its pro- 
 ductive quality. These benefits include such items as rents, or 
 hire of property, interest on money, dividends on stock, increased 
 value of the thing which is owned, the natural increase of ani- 
 mals and similar accessions of value. In many instances, this 
 profit results from the judicious use of the thing owned by the 
 owner. In many others, it is received by him from another as 
 compensation for the privilege of using the thing owned by the 
 latter. In other instances it represents, or takes the form of 
 an increase in value of the thing owned; and in still others, it 
 comes from the production by the thing owned of other things 
 having value.
 
 356 AMERICAN ELEMENTARY LAW. 
 
 The Right to Change. — Another of the rights incident to own- 
 ership is the right to change the thing owned. This right ex- 
 tends from the slightest modification to the complete destruction 
 of the thing. It is an exceedingly useful aud practical right. 
 Under it all improvements and manufactures are carried on. If 
 the owner of property were required by law to keep the thing 
 owned always in the same condition, life, for the short space 
 during which it could be maintained at all, would be unendura- 
 ble. Man could use neither food nor clothing, nor enjoy nor de- 
 rive benefit for any length of time from anything which he had. 
 In the reasonable exercise of this right, many of the largest and 
 most frequent opportunities of life are enjoyed. 
 
 The Bight to Dispose of. — The last of the elements of owner- 
 ship is the right or power to dispose of the thing owned. This 
 consists in the legally protected privilege of transferring one or 
 more of the other rights of ownership to another person in such 
 way that he shall thereby acquire such legal right. This is an in- 
 dispensable right and one very frequently and freely exercised. 
 The claim or advantage transferred may be any of the four pre- 
 ceeding rights combined without any limitation thereon, or it 
 may be some one or more of these rights for a limited time, to a 
 limited extent, and for limited purposes. The estate created by 
 the transfer would depend upon the nature and purpose of 
 the transfer and the agreement of the parties. 
 
 Transfers of these rights may be effected in many ways. The 
 most frequent methods are by agreement between the parties and 
 by operation of law. In so far as they are effected by agreement 
 between the parties they are governed by the rules of law appli- 
 cable to that subject including the law of contracts. 
 
 Acquisition. 
 
 Ownership of a thing may be acquired in a number of different 
 ways. A number of classifications of these methods have been 
 made by different persons, at different times. 
 
 The classification accepted by Blackstone as coming from Lit- 
 tleton gives only two modes of acquisition of real estate, one by 
 purchase and the other by descent. As to things personal, he 
 -mentions twelve methods, 1. By occupancy, 2. By prerogative, 
 3. By forfeiture, 4. By custom, 5. By succession, 6. By marriage,
 
 PROPERTY. 357 
 
 i 
 
 7. By judgment, 8. By gift or grant, 9. By contract, 10. By bank- 
 ruptcy, 11. By testament, and 12. By administration. 
 
 It is apparent that this classification is too ancient and involves 
 and is based upon legal rules and conditions many of which are 
 now obsolete. A treatise which undertook to trace out the his- 
 torical development of the law might well afford to give time and 
 attention to it, but if the effort is to bring into the mind of the 
 student a simple understanding of the living law as it now exists 
 in American jurisprudence upon a simple effective working basis 
 it is highly probable that an effort at elaborating them would re- 
 sult more in confusion than helpfulness. I do not wish to be mis- 
 understood here. The historical approach to the law, searching 
 out what has been, is essential in the process of legal education. 
 This necessarily comes as a part of the treatment of each parti- 
 cular legal subject when taken up for detailed study. The pur- 
 pose of the present treatise is, as far as it may practically be done 
 by the author, to present the dominant principles and general 
 rules that constitute the frame work of American Law as it now 
 exists, to the end that the student, at the beginning of his course, 
 may be given a fair general view of the fundamental doctrines 
 which are to be elaborated later on, as to each particular subject 
 when taken up in detail. 
 
 The classification which is perhaps as full and simple as any is 
 as follows: 
 
 (1) By discovery. 
 
 (2) By conquest. 
 
 (3) By production. 
 
 (4) By increase. 
 
 (5) By legal succession to the rights of another. 
 
 Discovery. — Discovery is a recognized method of acquiring 
 property in the thing discovered. The most frequent application 
 of the doctrine is in connection with the discovery, so called, of 
 new countries by virtue of which fact, the government under 
 whose authority the discover was acting asserts title and domin- 
 ion over the land. The doctrine has its application, however, in 
 private law and he who really discovers a thing of value is re- 
 garded as entitled absolutely, or to a less extent specified by law, 
 to its uses and benefits.
 
 358 AMERICAN ELEMENTARY LAW. 
 
 Conquest. — This method also has application among the 
 nations of the earth. When one people successfully wage war 
 against another and overpower them, the conqueror asserts poli- 
 tical rights, to a greater or less extent, over the territory of the 
 conquered, and becomes the owner of the public property of the 
 subjugated people. This is not recognized as a legal method of 
 acquiring ownership over private property that belongs to or is 
 in the possession of another person. If it has any application as 
 a basis of private right it is in those cases where some one has 
 subdued or tamed some animal, wild by nature, and has so ac- 
 quired a property right in it. 
 
 Production. — Production is a well recognized basis of private 
 property right. He who, by his own skill and labor in the use of 
 his own faculties or of things already belonging to him or by a 
 combination of these, produces some new thing, the law recog- 
 nizes as owner of the thing. As, for example, the crop which a 
 man raises on his own land, or the implement which the smith 
 manufactures from his own material by his own labor, or the 
 book produced by the author, or the picture drawn by the 
 painter, are respectively recognized by law as belonging to him 
 by whom each is produced. The law goes further than this and 
 recognizes that he who has produced or manufactured a thing at 
 his own expense, though in so doing he may have employed the 
 labor and skill of others, is the owner. If two or more co-operate 
 in the production of a thing, each contributing his due share and 
 proportion, there being no understanding between them, express 
 or implied, the production will belong to both jointly. If two or 
 more co-operate in the production of a thing under an agreement 
 express or impHed, that the production is to be at the expense of 
 one who is to pay the other or others for their contribution, 
 whether of capital, material, skill, or labor, the law respects the 
 agreement and regards the thing produced as belonging to him 
 who is recognized as owner by the agreement and makes him a 
 debtor to the other party or parties contributing for the amount 
 agreed upon if they so specify or to the reasonable value of the 
 contribution, if there be no understanding as to the amount. 
 
 Difficult questions arise when a thing really belongs to one per- 
 son, and another, obtaining possession of it, so changes the thing 
 by working upon it or by incorporating it with other things as to
 
 PEOPEBTY. 859 
 
 put it into an essentially different form, or give It an essentially- 
 different character from that which it had. For instance, a man 
 owns a tract of land with trees growing on it suitable to be sawed 
 into lumber. Another, without the knowledge or consent of the 
 owner goes upon the land, cuts down the growing trees and saws 
 them up into lumber ready for the market. Some of the lumber 
 he sells to another party who uses it in the building of a house. 
 To whom does the unsold lumber in the possession of the man 
 who sawed it belong? To whom does the house built by the third 
 party out of the lumber belong? The answer of the law is that 
 the lumber belongs to the owner of the trees, if he sees fit to assert 
 his title. While the form of the tree has been changed, still the 
 timber that was in the tree can be identified as the lumber in the 
 yard. Though changed in form, there is no such change in sub- 
 stance or in use and no such incorporation with other things be- 
 longing to another person as to prevent or render unusually dif- 
 ficult identification in fact, or to make reclamation of the identi- 
 cal thing seriously hurtful to another, so the lumber belongs to 
 the owner of the trees. The case is different with the house. 
 Here, while the identity of the thing may be fairly traced, it has 
 become so united with and incorporated in the premises of an- 
 other that it cannot be detached therefrom without serious sacri- 
 fice of value. The ownership of the lumber could not draw to it- 
 self the ownership of the land on which the house is builded. To 
 separate the house, as a building, from the land would require se- 
 rious invasion of the rights of the owner of the land and also seri- 
 ous loss in value beside the appropriation, by the former owner of 
 the trees, of the results of the labor and expense of him who built 
 the house. To permit the owner of the trees to enter on the land 
 and tear down the house and reclaim the individual pieces of lum- 
 ber would be subject to all the objections just argued against the 
 removal of the house to an even greater extent than in such re- 
 moval. In view of these facts, the law does not permit the owner 
 of the trees to follow and reclaim the lumber in the house but 
 gives him remedy against the man who cut the timber for the 
 market value of the lumber. 
 
 There is quite a contrarity of opinion upon the points just 
 stated. Some of the courts hold that the owner of the timber can- 
 not recover the sawn lumber, or its market price, if the owner
 
 :>(')() AMERICAN ELEMENTARY LAW. 
 
 elects to do that, unless the cutting of the trees and the sawing of 
 the lumber is done in bad faith, that is, with knowledge that the 
 trees did not belong to him who cut them, but wherever the cut- 
 ting and sawing is done in the honest belief that the trees belong 
 to him who cut them, the true owner can only recover the market 
 value of the trees as they stood upon the ground. 
 
 There is also difference of opinion in the cases as to the burden 
 of proof on the subject of good faith. Some of the courts hold that 
 the owner, to entitle him to recover the value of the manufac- 
 tured product must show that the wrongful manufacturer acted 
 in bad faith, while others hold that proof of the wrongful taking 
 and exercising dominion over the property of another is sufficient 
 to subject the wrongful manufacturer to liability for the manu- 
 factured value unless he shows that he acted in good faith in tak- 
 ing and dealing with the thing. 
 
 Increase. — Increase of or from the thing owned enures to the 
 benefit of the owner. This is true whether the increment comes 
 in enhanced value of the thing, whether due to changes in it 
 made by the owner or by advantageous circumstances or by nat- 
 ural growth or accretion of the thing itself, or by the develop- 
 ment or production by the thing owned of other things hav- 
 ing separate existence. Thus, if a man buys a tract of land 
 and puts it in cultivation, all its enhanced value enures to 
 his benefit. If he buys a tract of land and leaves it unimproved 
 but by change in environment such as the development of the 
 country, the building of railroads, etc., the land increases in 
 value, this increment, though unearned by him, still enures to his 
 benefit. If a man owns a flock of sheep, the wool grown upon 
 them is his, as are the lambs also. 
 
 Legal Succession to the Rights of Another. — This is by far the 
 most common method of acquiring property. Practically every- 
 thing subject to ownership in use in the ordinary social and busi- 
 ness life of the community belongs to some person or persons. 
 The rights of these owners may be transferred or passed over 
 from them to other persons who thereby succeed to such rights. 
 
 The methods of transferring property are numerous and have 
 been classified in many different ways. Perhaps as simple a 
 classification as we can make is as follows : 
 
 (1) Transfers by concurrent action of both parties.
 
 PROPERTY. 361 
 
 (2) By act of the transferee alone. 
 
 (3) By act of the transferor alone. 
 
 (4) By operation of law. 
 
 (5) By act of governmental agencies. 
 
 By Act of Both Parties. — Under this would be embraced all 
 changes of ownership based upon agreement of parties. These 
 are of two general kinds, (a) Those in which the agreement has 
 all the essentials of contract, and (b) those in which, though the 
 agreement lacks one or more of the elements of contract, still is 
 so far executed that vested rights have passed under it. 
 
 Contract is the most frequent method by which ownership is 
 transferred. This covers a very large majority of the business 
 transactions of the world. To be effective these agreements must 
 be genuine involving mutual understanding and mutual will and 
 must have the four essential elements of contract. 
 
 Such agreements as constitute title to real estate are usually 
 spoken of as conveyances and are evidenced by formal written 
 instruments executed in conformity with the local law, known as 
 deeds. Contracts transferring estates in land less than a freehold 
 are usually called leases and if for a period longer than that 
 designated in the applicable statute of frauds, usually one year, 
 they are required to be executed with the same formalities as 
 conveyances of real estate. There are numerous other contracts 
 which affect the title to land not included in the foregoing, but 
 the two mentioned are the most common. 
 
 Contracts which transfer the title to personal property for a 
 price in money are known as sales. Contracts by which one piece 
 of personal property is transferred in consideration of the trans- 
 fer of other personal property are called barters or exchanges. 
 Contracts regarding ownership of personal property which affect 
 only the possession and not the title are known as bailments. 
 
 Agreements not amounting to contract which still affect the 
 ownership of property are principally gifts, which, as we have 
 seen, when fully executed, pass title to the thing given. 
 
 The effect of agreements lacking each of the other elements of 
 contracts as to vesting, rights has been heretofore considered un- 
 der the head of Agreements not Amounting to Contract, pp. 231- 
 241, supra.
 
 362 AMERICAN ELEMENTARY LAW. 
 
 By Act of the Transferee. — Under this head comes the acqui- 
 sition of property by adverse possession and user. This is usually 
 treated under the head of prescription or limitation. 
 
 Prescription arises when one, not the owner of property, has 
 been in possession of and has used it as his own for such length 
 of time that the law presumes a grant in his favor from the 
 owner. To have this effect the possession must be continuous for 
 a required term, must be held as a matter of right in opposition 
 to the ownership and claim of the true owner, and no legal pro- 
 ceedings must have been instituted against the possessor by the 
 owner for the recovery of the thing. In the language of the law, 
 the possession must be uninterrupted, adverse, and peaceable. 
 When these three facts concur and continue for the length of 
 time recognized as applicable to the particular kind of property, 
 they give title to the original trespasser. 
 
 At Common Law limitation, strictly speaking, did not give title 
 to the thing owned but was merely a defense to any suit brought 
 by the true owner for its recovery. It was complete protection so 
 long as the wrongdoer retained possession of the thing. But if 
 he lost possession, and the true owner acquired it, the one in 
 whose favor limitation had run could not recover the property 
 from its rightful owner by law. 
 
 Limitation arises when property has been held uninterruptedly 
 adversely, and peaceably for a designated length of time, under 
 such circumstances that the Common Law did not presume a 
 grant. The presumption of a grant in cases of prescription, and 
 the absence of such presumption, in limitation, is the funda- 
 mental difference between the two doctrines at Common Law. 
 The practical consequences that grow out of this fundamntal dif- 
 ference are very important. 
 
 Under many of the statutes of limitation as they now exist in 
 the different States, this Common Law doctrine is set aside, and 
 the uninterrupted, adverse, peaceable possession of property for 
 the time required by statute vests title in the holder. In view of 
 the prevalency of these statutes limitation is given as a means of 
 acquiring title. 
 
 At Common Law, and under most statutes, if at the time the 
 adverse possession begins the true owner of the property is under 
 legal incapacity, neither prescription nor limitation runs against 
 him or her until the legal incapacity terminates. If there are two
 
 PROPERTY. 363 
 
 or more disabilities, prescription or limitation does not begin to 
 run until the removal of all. If the owner is under no disability 
 when the adverse possession begins, a disability beginning there- 
 after does not affect the running of the statute. 
 
 There are some things, such as water and light, that are ordi- 
 narily regarded by law as common property, not subject to own- 
 ership by a particular individual. The law, however, recognizes 
 legal rights in the use of these. If, therefore, one person shall 
 use water or light in a manner or in amount beyond his right and 
 under such circumstances as to constitute an actionable invasion 
 of another's right to use and shall continue such use uninter- 
 ruptedly, adversely, and peaceably for the required length of 
 time, his right to continue the use, in the manner and for the 
 purposes and to the extent that he has so used it, will be protected 
 by the law of prescription or limitation according to the facts. 
 Such right, however, cannot be extended so as to cover uses for dif- 
 ferent purposes or in a different manner or to a greater extent. 
 Deviation from the accustomed use to any appreciable extent 
 would be an additional burden upon the other party unsupported 
 by previous usage. 
 
 By Act of the Transferor. — At Common Law and under the 
 Statutes of the several States persons having the proper qualifi- 
 cations can dispose of their property by will. The usual qualifi- 
 cations are that the person shall be twenty-one years of age, or 
 married, and of sound mind. Wills, to pass the title to real es- 
 tate, must be in writing and signed by the testator. The will 
 must be either wholly written by the maker or must be signed in 
 the presence of and attested by two or more witnesses. Oral wills 
 are recognized as valid means for transferring personal property. 
 Sometimes the amount of property is limited. For an oral will 
 to be good it must be made, if by an ordinary person, in the con- 
 scious presence of death, the testator must be of sound mind, and 
 the dispositon of the property must be certain. The will must 
 be proven by several witnesses and as so proven by the different 
 witnesses must be of the same legal effect and in substantially the 
 same language. 
 
 "Wills made in conformity with law are recognized as valid con- 
 veyances of property. As, however, the will constitutes the title 
 to the property, before it can be available aa such its genuineness
 
 364 AMERICAN ELEMENTARY LAW. 
 
 and authenticity must be proven before and declared by some 
 court of competent jurisdiction. The will, when thus probated, 
 vests the rights therein conferred upon the devisees and legatees 
 according to its terms. 
 
 Rights under a will, as those acquired by inheritance, are sub- 
 ject to such conditions regarding the same as are imposed by law, 
 and in case of wills by the terms of the instrument. The princi- 
 pal condition imposed by law grows out of the maxim "That a 
 man must be just before he can be generous" and consequently 
 that the rights of the devisees and heirs are subject to the just 
 claims of creditors. 
 
 In a number of States there are provisions for the care and 
 maintenance of the family of the deceased, such as the allowance 
 for temporary support and protection in the use of the home 
 which are superior to the claims of either creditors, devisees, or 
 heirs. 
 
 As no one is required by law to accept property under a will, 
 it might be more logical to include this manner of acquiring 
 property under the head of Transfers by Concurrent Action of 
 Both Parties, but as a will does not take effect till after the death 
 of the testator and no acceptance prior thereto could preclude 
 the testator from subsequently changing the will, the transfer 
 cannot strictly be spoken of as resulting from the concurrent ac- 
 tion of both parties. 
 
 By Operation of Law. — In this head are included transfers by 
 inheritance. The Common Law and the statutes of the different 
 States recognize the ties of kinship and the fact that in the great 
 majority of lives, one of the great stimulants for industry and 
 economy is the desire to provide for one's family. Hence it is 
 that the law of inheritance in some form exists in all Common 
 Law countries. 
 
 The details of this law depend upon the sovereign 's conception 
 of public policy. In monarchical or other aristocratic forms of 
 government care is taken to create and preserve large estates in 
 land and the laws of descent are made so as to effect this pur- 
 pose. In democratic countries, where equality of opportunity is 
 the basic doctrine, the laws of descent reflect this policy and es- 
 tates are distributed on more nearly equal terms. 
 
 In contemplation of law the right of the heir in the property of
 
 PROPERTY. 365 
 
 the deceased vests immediately upon the latter 's death. This in- 
 vestiture of right is by operation of law and is not dependent 
 either on the desire of the deceased or the acceptance of the heir. 
 It is true that it is subject to repudiation by the heir. No one is 
 compelled to receive an estate by inheritance against his will, but 
 acceptance, being so common, and under most conditions, both 
 reasonable and beneficial to the heir, in the absence of repudia- 
 tion by him, it is presumed. 
 
 There are a number of other conditions under which title is 
 transferred as the result of legal proceedings without the affirm- 
 ative consent of the party divested of title, but in none of these is 
 the transfer by direct operation of law as all of them require the 
 active intervention of governmental agencies. 
 
 By Act of Governmental Agencies. — One of the chief functions 
 of sovereignty and its main purpose in the organization of gov- 
 ernment is to protect the well being of the public and enforce the 
 just rights of individuals. In order to enable it to accomplish 
 this twofold purpose it frequently becomes necessary to exert its 
 power in forced changes in the ownership of property. 
 
 Transfers made for Public Purposes. — Transfers^of title made 
 for the public good usually are effected : 
 
 (1) Under the power of eminent domain. 
 
 (2) Under the taxing power. 
 
 (3) By escheat. 
 
 (4) By forfeiture. 
 
 Eminent Domain. — The property rights of one individual can- 
 not be taken from him and transferred to another for private use 
 unless such transfer be based upon some unlawful conduct of the 
 former owner judicially ascertained. Altogether different rules 
 apply when property is needed for public uses. All private own- 
 ership is subject to the superior interests and rights of the public 
 and if the well being of the public so requires private property 
 may be taken and applied to the public use without or against the 
 consent of the owner. This right and power to take the property 
 of the individual and apply it to the public benefit is the power of 
 eminent domain. Its exercise by the Federal Government is reg- 
 ulated by the Federal Constitution, and by the several State 
 governments by provisions in their respective constitutions all 
 of which require that just compensation shall be made to the
 
 366 AMERICAN ELEMENTARY LAW. 
 
 owner of the property. The uses for which property may be 
 taken under this power must be public. What is a public use 
 is difficult of ascertainment. Such use includes all governmental 
 purposes, whether the actual use of the property is to be made by 
 the government through public officers or by specially authorized 
 individuals whom the government permits to act for it in discharg- 
 ing its governmental duties. But the term is broader even than 
 this and includes uses and purposes which are for the public 
 benefit whether they be of such kind as are ordinarily regarded 
 as governmental or not. 
 
 The maintenance of public buildings, such as State capitols, 
 courthouses, etc.; of public highways, such as the ordinary 
 country roads or railroads; of public means of communication, 
 such as the transmission of the mails, are public obligations in the 
 strictest sense. Property may therefore be taken for such uses, 
 whether the actual user of the property is to be by governmental 
 agency direct or by private persons, natural or artificial. This 
 difference, however, is recognized in many of the States. Com- 
 pensation must always be made no matter by whom the public 
 service is to be effected. If, however, the property is to be used 
 by direct governmental agency, payment need not be made nor 
 secured in advance. If the use is to be made by private persons, 
 the payment must be made or secured at the time the property is 
 taken. 
 
 Taxation. — Title to private property is also subject to be di- 
 vested under the taxing power of the State. Justice and law alike 
 require that all property should bear its equitable part in the 
 burden of taxation. If any particular owner fails to pay his 
 lawful share of the tax when properly assessed against him, the 
 State by taking proper action can sell so much of his property as 
 is necessary to bring the amount of his tax and the costs and pass 
 valid title to the purchaser. 
 
 By Escheat. — The use and development of the lands within a 
 State are essential to its well being. The State may, therefore, 
 take steps necessary to prevent the ownership of land from lapsing 
 or to prevent its being held in perpetuity or by aliens. If, there- 
 fore, one owning land dies without heirs and without making a 
 will and without owing any debts the State can by legal procedure, 
 known as an escheat, have these facts ascertained and order the
 
 PROPERTY. 367 
 
 property sold and the proceeds to be placed in the public treas- 
 ury subject to the claims of lawful heirs if any shall appear. The 
 title to the property would pass to the purchaser at the sale and 
 it would thus become become available. 
 
 It is usually regarded as bad public policy to permit corpora- 
 tions to acquire and hold lands beyond the amount reasonably 
 needed for use in carrying on the corporate business. The laws 
 of the several States, therefore, usually require sales of all sur- 
 plus lands held by corporations within a reasonable time after 
 same are acquired. If this is not done, the government can insti- 
 tute a proceeding and escheat the property. That is, sell it and 
 divest the corporation of title and vest it in the purchaser, pay- 
 ing over the proceeds of the sale, less the cost of the proceeding, 
 to the corporation. 
 
 It is also regarded as bad public policy to have the lands within 
 a government owned by aliens. In many States there are stat- 
 utes authorizing the escheat of lands so held if not disposed of 
 voluntarily by the alien within a designated time after acquisi- 
 tion. 
 
 By Forfeiture. — Forfeiture is a divestiture of right by reason 
 of wrongful conduct of the one having the right. In some in- 
 stances the right forfeited is ownership of property. This in most 
 instances involves investiture of some other legal person with the 
 right which has been lost by the former owner. Occasionally 
 the right simply lapses, not passing to anyone. If the right for- 
 feited had been received directly from the State it either revests 
 in the State or lapses according to the nature of the case. If the 
 right forfeited had been directly acquired from a private person 
 it either reverts and revests in this person or lapses. In every 
 case of reversion of ownership the process of forfeiture has 
 resulted in the passing of title. 
 
 Transfers of Title by Governmental Agencies for Good of In- 
 dividuals. — Transfers of title made to enforce the just rights of 
 individuals are almost invariably effected by the exercise of the 
 judicial power of the government. This power is usually put 
 forth in proceedings: 
 
 (1) To declare forfeiture of private rights. 
 
 (2) To enforce specific performance of contracts for the con- 
 veyance, sale or barter of property.
 
 368 AMERICAN ELEMENTARY LAW. 
 
 (3) Suits to recover possession of specific property or remove 
 cloud from the title. 
 
 (4) Suits for partition. 
 
 (5) Suits for trover and conversion. 
 
 (6) Suits for the collection of damages. 
 
 In the first four of these the transfer of the title is very fre- 
 quently accomplished by the judgment of the court directly with- 
 out the necessity of action by any other officer or by a party to 
 the litigation, the court in its judgment or decree declaring the 
 title to the property involved in the litigation to be in the one 
 party or the other. Sometimes, even in these cases, the decree 
 does not act directly upon the title but requires the transfer of the 
 title by some designated person. The most frequent illustration 
 of this occurs in a suit in equity for the specific performance of 
 a contract to convey land. Here, ordinarily, the decree does not 
 by its own terms transfer the title from the defendant to the 
 plaintiff, but requires the defendant under the pains and penalties 
 of contempt, to execute such conveyance as the contract contem- 
 plated. This rule is changed in some States by statute. 
 
 In actions for trover and conversion the effect upon the title 
 to the thing converted is indirect, that is, it is not specifically 
 declared in the judgment nor is any transfer of title required to be 
 made by the parties. It is manifestly unjust to allow the plain- 
 tiff to compel the defendant to make compensation to him for the 
 full value of the property converted and also permit the plaintiff 
 to continue to be the owner of the thing for which he has been 
 fully paid. It is, therefore, universally conceded that if one per- 
 son owns property and another wrongfully exercises such domin- 
 ion over it as to constitute a conversion of it, and the owner sues 
 the wrongdoer, charging him with the conversion, and recovers 
 against him a judgment for the full value of the thing and col- 
 lects the full amount of the judgment, the concurrence of these 
 facts vests in the defendant all the estate in the thing which the 
 plaintiff had. Whether or not all of these facts are necessary to 
 vest the title in the defendant is not so well settled. Some courts 
 hold, that bringing the suit for the conversion of the property 
 and claiming the full value as damage is an election on the plain- 
 tiff's part to regard the defendant as having acquired the title 
 to the thing and owing the plaintiff therefor. Other courts hold.
 
 PROPERTY. 3G9 
 
 that instituting the suit is not a final election by the plaintiff but 
 that prosecuting the suit to judgment and entry of judgment is 
 such an election and the title passes at that time. Others, again, 
 hold that even obtaining a judgment is not sufficient but that the 
 collection and retention of any part of the adjudged value is 
 sufficient. As above stated, all concur in the view that receiving 
 full compensation passes title. 
 
 Suits for the collection of damage never result in direct trans- 
 fer of title. In such actions, if the plaintiff is successful, the 
 court declares the defendant to be justly indebted to him in the 
 amount ascertained to be due and authorizes the clerk or proper 
 officer of the court to issue a writ authorizing the marshal, sheriff, 
 or other proper executive officer to collect the amount due from 
 the defendant and if the amount is not paid to seize upon and sell 
 sufficient property belonging to the defendant to bring the debt 
 and costs of collection. If the money is not paid and the officer 
 seizes and sells property of the defendant in accordance with the 
 judgment and the writ, he thereby divests the former owner of 
 his estate in the thing sold and transfers it to the purchaser at 
 the sale. The officer is authorized and required to execute a 
 proper conveyance of the property showing the facts of the sale 
 and his authority to make the same and transferring the title to 
 the purchaser. 
 M
 
 CHAPTER XIX. 
 
 PROPERTY (CONTD.) 
 
 Limitations Upon Property Rights. 
 
 The law recognizes no such thing as absolute property rights 
 in private persons. The highest title known to the law is subject : 
 
 (1) To the State's right of eminent domain. 
 
 (2) To the taxing power of the State. 
 
 (3) To the police power of the State. 
 
 (4) To just and uniform regulation necessary to the pro- 
 tection of the equal and just rights of others. 
 
 Eminent Domain and Taxation. — The limitations upon the 
 rights of the owner by reason of the State's right of eminent do- 
 main and taxation are sufficiently disclosed in the discussion of 
 those subjects uist presented. 
 
 Police Power. — The police power of a State is its authority to 
 care for and protect the health, morals, and safety of the people. 
 It has never received exact definition. Under it a great many 
 different kinds of governmental action is justified. Many of 
 these affect more or less directly ownership of property in one or 
 more of its aspects. It is, perhaps, not an over statement of the 
 modern law on this subject to say that the State in the exercise 
 of its police power may take possession of private property, reg- 
 ulate or prevent its use, modify or destroy it, or require or forbid 
 the owner's disposal of it, whenever it is demonstrable that the 
 health, morals, or safety of the public so require. 
 
 If a commodity offered as a food can be shown to be posi- 
 tively injurious to health the State can prevent its sale for use as 
 a food, and if it be necessary in order to accomplish this can take 
 possession of the thing and destroy it. If it is demonstrable that 
 the use of any particular thing is hurtful to the health or morals 
 of the individual using it, and consequently to the public, its use 
 may be regulated or absolutely prohibited as the public interest 
 may requre. If the thing owned is of such nature or is in such
 
 PROPERTY. 37 1 
 
 condition as to be a serious menace to the health or property 
 rights of a number of other individuals it may be destroyed if this 
 be necessary to their safety. 
 
 The first of these doctrines is illustrated in the enactment and 
 enforcement of pure food laws and in other sanitary regulations. 
 The second, in laws regulating or prohibiting the carrying of 
 deadly weapons, sale of morphine, cocaine, and intoxicating liq- 
 uors. The third, in the impounding or killing animals infected 
 with contagious diseases and in the destruction of property to 
 prevent the spread of fires in cities. Innumerable other illustra- 
 tions might be given but these will suffice to show the general 
 nature of the limitations now under consideration and the nature 
 and extent of the power under which they are imposed. 
 
 Regulations Necessary to the Proper Protection of Individ- 
 uals. — The limitations imposed upon the individual ownership of 
 property for the just protection of others are very numerous and 
 very important. By far the larger portion of them refer to 
 and regulate the uses to which the property may be applied; a 
 smaller number relate to the condition in which property is kept ; 
 and a few grow out of the nature of the property itself. 
 
 There is an ancient maxim of the law that a man must so use 
 his own as not to injure another. The statement in this form may 
 be regarded as excellent moral advice but in the light of numerous 
 decisions applying or refusing to apply it can hardly be said to be 
 an accurate statement of the law. It is too comprehensive as a 
 statement of the limitation upon the right of use. There are 
 many conditions under which a person may legally use his own 
 although the direct consequence of such use may be hurt to an- 
 other. If we regard the maxim quoted as a correct statement of 
 the general rule of the law and the cases coming under the latter 
 statement as exceptions to it, the result will be much confusion 
 and perplexity. To avoid this, some of the later cases have at- 
 tempted to restrict the rule by amending the maxim, making it 
 read "One must so use his own as not to injure the legal rights 
 of another." As thus modified it is a true statement of a fact 
 but can hardly be regarded as the enunciation of a legal rule of 
 any value either to the student, the practitioner, or the adminis- 
 trator of the law, for, in its final analysis in that form, it simply 
 announces that a man must not use his property unlawfully.
 
 372 AMERICAN ELEMENTARY LAW. 
 
 This is a truism which affords no test whatever by which to dis- 
 tinguish between lawful and unlawful use. 
 
 It is practically impossible to formulate a general statement 
 which will indicate either all of the uses to which one may law- 
 fully put his property, or all of the uses of his property which 
 the law forbids. This is particularly true as to affirmative wrong- 
 doing by the owner. The legal nature of each particular act may 
 be readily ascertainable when tested by the particular rules of 
 law applicable thereto. And this is most frequently the case. 
 There seems, however, to be no general rule sufficiently compre- 
 hensive to include all these affirmative misuses and at the same 
 time specific and accurate enough to be of much practical value 
 in determining the legal nature of any particular act. 
 
 Passing over to the negative conduct the difficulties, while great, 
 are appreciably diminished. The rule here is that the law re- 
 quires of every owner of property to use such care to prevent hurt 
 therefrom to another as a reasonably prudent person should use 
 under the circumstances of the particular case. If he has used 
 such care, and notwithstanding this, injury results to another, 
 the cases are rare and controlled by special considerations in 
 which liability will be adjudged. If he has failed to use such care 
 and injury to another directly results therefrom, he is almost in- 
 variably held liable for such damage, non-liability, if it ever 
 exists, growing out of some peculiar special rule of law. 
 
 Apart from and in addition to the limitations which the law 
 puts upon the owner's right to use the thing there are many others 
 which grow out of or are incident to the nature of the estate or 
 interest which the owner has. These will be better considered 
 under the head of Special Ownership. 
 
 There are a number of limitations upon the owner's right to 
 receive profit from things owned. The most conspicious examples 
 of this are found in those instances in which the owner has ap- 
 plied the thing owned to a public use. Under these circumstances 
 sovereignty claims and exercises the right of controlling and 
 limiting the charges which may be pxacted of members of the pub- 
 lic for the use of such property, as in the case of railroads, tele- 
 graphs, grain elevators, etc. 
 
 Probably the most common example of limitation by law upon 
 the amount of profit which may be realized from property em-
 
 PROPERTY. 373 
 
 ployed in private enterprise is found in the usury laws of the 
 different States. These laws forbid that the owner of money shall 
 collect or receive interest thereon in excess of a specified per 
 cent. The limitation is applied without reference to whether the 
 money was earned in the prosecution of a public or giwm'-public 
 business or is to be employed in such business. Let the transac- 
 tion be ever so private in all of its features, the limitation still 
 applies and contracting for and accepting usurious interest would 
 still be unlawful. 
 
 There are material limitations on the owner's right to dispose 
 of property. Often these limitations are found in certain re- 
 quirements as to the form and manner of evidencing the disposi- 
 tion. This is illustrated in the laws regulating the conveyance 
 of real property and not infrequently the transfers of personalty. 
 Sometimes the limitation goes beyond regulation and forbids dis- 
 position of the property either to or by certain persons or at cer- 
 tain times or under specified conditions and in extreme cases, 
 absolutely. 
 
 These limitations should not be and are not imposed arbitrarily 
 but only under such circumstances as are required by sound pub- 
 lic policy for the proper protection of the community and of pri- 
 vate individuals. 
 
 General Ownership. 
 
 "When the five elements of ownership as to a thing are all in 
 one person he is regarded in law as the general owner. He is 
 sometimes spoken of as the. absolute owner. In view of the fact 
 that the greatest estates known to the law are subject to many of 
 the limitations just discussed it is not accurate to designate them 
 as absolute. 
 
 The general ownership of real property is called a fee simple 
 estate. As to personal property there seems to be no more specific 
 designation than general ownership. 
 
 Special Ownership. 
 
 "When the estate of the owner does not include all of the five 
 elements of ownership to the full extent to which they are recog- 
 nized by law it is known as special ownership. It is apparent 
 that these estates may be very numerous and quite different, the 
 one from the other. The interest of the special owner may be
 
 374 AMERICAN ELEMENTARY LAW. 
 
 limited to any one of the five elements of general ownership, and 
 need not be complete or exclusive in that regard. If the general 
 owner of a thing should lose it and another should find it and take 
 it into his possession for the purpose of finding the owner and 
 rastoring the thing to him, this possession would be lawful and 
 as against every one except the true owner would be protected by 
 law. But the finder would have no right to use nor to profit by 
 nor to change nor dispose of the thing found. If the thing were 
 of such a nature that use would be beneficial to it the law would 
 justify using it so far as would be advantageous to it, but if the 
 finder should use it for his own advantage and not for the benefit 
 of the thing this would be unlawful. The finder would not be 
 legally justified in profiting by, modifying, destroying or dispos- 
 ing of the thing. 
 
 Even if a person comes into possession of property unlawfully 
 by trespass, or even by theft, his claim to the thing evidenced by 
 his actual possession will be recognized and protected so far as 
 the good order of society requires. If, therefore, B steals prop- 
 erty of A and has it in his possession and C steals it while it is in 
 the possession of B, in indicting C for his theft the indictment may 
 allege that the thing stolen belonged to B and was taken from 
 his possession and C could not avoid conviction by proving that 
 B was not the true owner but only held the thing by reason of his 
 theft. To state the matter differently C could not go behind B's 
 actual possession as evidence of title and prove B 's wrong in order 
 to escape punishment for his own crime. It is in this sense that 
 we speak of actual possession as giving title or constituting evi- 
 dence of ownership. 
 
 Special ownership extends from the very limited interest, 
 based upon actual possession as just discussed, through all the 
 various combinations of the elements of ownership, up to that 
 high estate known as general ownership. As to real property it 
 includes all estates less than fee simple. As to personalty it in- 
 cludes every legal right which a person may have in a thing less 
 than general ownership. 
 
 TITLE. 
 
 Legal evidence of ownership or estate is known as title. Title 
 and ownership or estate are so closely connected that the terms 
 are frequently used inter-changeably, but the most accurate tech-
 
 PROPERTY. 375 
 
 nical use limits ownership or estate to the right in the thing and 
 title to the means by which the existence of the estate may be 
 proven. A man buys a tract of land paying its full value and 
 obtaining a fee simple estate. This right of full and complete 
 ownership is his estate. The deed from his vendor to himself, in 
 connection with the deeds under which his vendor had previ- 
 ously held the property, constitutes his title, by which the fact 
 that he owns this land may be proven. 
 
 As indicated in the foregoing illustration, one means by which 
 title is proven is by formally executed written instruments con- 
 veying the thing. This is the method required in transferring 
 real estate, leasehold estates in land for longer than one year, and 
 a few, though very few, transfers of other personal property. 
 
 In most instances, the title to personal property exists in parol 
 merely. That is, is evidenced by facts which are not reduced to 
 Writing but must be proven by oral testimony. The law permits 
 parties transferring any kind of personal property to evidence 
 this by written instruments, but if this is only permitted and not 
 required, so far as third persons are concerned, the fact of acqui- 
 sition of the property may still ordinarily be proven by parol 
 testimony. As between the parties to the contract, the rule as to 
 the paper being the best evidence is more rigidly enforced. 
 
 Actual possession of a thing, whether real or personal prop- 
 erty, is evidence of ownership and will protect the one in posses- 
 sion in holding the thing unless he who demands it can prove a 
 superior right in himself. 
 
 Uninterrupted, peaceable, adverse possession for the period re- 
 quired by law does not constitute title under the Common Law 
 but does under the statutes of many of the States. • 
 
 SUBJECT MATTER. 
 
 Almost everything except human beings, and water, light and 
 air, in their natural condition as provided by nature, is subject 
 to legal ownership. There are many things that are not owned. 
 These consist mainly in animals of different kinds which have 
 never been reduced to possession by man nor brought within his 
 continuous dominion in such way as to belong to anyone. If any 
 individual shall domesticate one or more of such animals, brii 
 ing it under his actual possession and control, it, and its increase 1 ,
 
 376 AMERICAN ELEMENTARY LAW. 
 
 would belong to the captor. So, if anyone acting within the 
 limits of the game law shall kill a wild animal, thus reducing it 
 to possession, it thereby becomes his property. 
 
 THE QUALITIES OP THINGS. 
 
 Things Permanent and Things Transitory. 
 
 Some things are permanent, that is, exist indefinitely; while 
 others are transitory, lasting only for a short while. The length 
 of time for which different animals will live varies greatly, but ex- 
 perience proves that even the most long lived must ultimately die, 
 and hence all living animals, considered by themselves, are re- 
 garded as transient. In a few instances, as deer or game in the 
 parks of the land holders in England, the particular animal is not 
 considered as a thing apart from the others in the herd on 
 the premises and the whole herd is regarded by legal fiction as a 
 part of the land upon which it is kept, and so the herd, and its 
 constituent members, are looked upon as permanent. This, of 
 course is a legal fiction of very narrow application. 
 
 Things Movable and Things Immovable. 
 
 Some things are immovable, that is, cannot be taken from place 
 to place, while others are of such nature that they may be moved 
 at any time, and some can be restrained in one locality with diffi- 
 culty. Immovable things are not necessarily tangible or discern- 
 ible by the senses. An easement is never tangible, but is usually 
 of such nature that it can only be enjoyed or rights under it ex- 
 ercised at a particular place. 
 
 Things Corporeal and Things Incorporeal. 
 
 Things, again, are divided into corporeal and incorporeal. 
 Corporeal things are those which may be discerned by the nat- 
 ural senses ; incorporeal, are those which exist only in thought or 
 legal contemplation. 
 
 There is frequently such close relation between certain cor- 
 poreal and incorporeal things that the mind, and even the law it- 
 self at times, confuses the two. To illustrate, A loans B a thou- 
 sand dollars which B promises to pay back in six months. These 
 facts clearly create a debt of B to A. This debt, legally speak- 
 ing, is a real thing, having actual existence. It is not discernible 
 by the senses and is, therefore, incorporeal. As a part of the
 
 PROPERTY. 377 
 
 contract by which B borrows the money he executes and delivers 
 to A his promissory note due six months thereafter, and payable 
 to A or order. This note does not create nor constitute B 's debt 
 to A, but it is the best evidence of that debt and the terms of the 
 agreement between the parties with reference thereto, and is very 
 frequetly spoken of as the debt itself. Its close connection 
 with the debt and its value is shown by the fact that A 's transfer 
 of the note carries with it the transfer of the right to demand and 
 receive the money from B ; and by the further fact, that if B does 
 not pay the debt and A brings suit against him to collect it, he is 
 not permitted to prove the existence of the debt except by the 
 production of the note, so long as it is in existence and subject to 
 his control. So far is this rule carried that if A has purposely 
 and wrongfully destroyed the note he cannot thereafter prove 
 the existence of the debt by any evidence whatever and so cannot 
 compel its payment by law. On the other hand, the fact that the 
 note is not the debt is conclusively shown by the rules of law 
 which enable A to sue for and recover the amount due on the 
 note notwithstanding the note has been innocently lost or 
 destroyed by him. 
 
 These same conditions exist with regard to many other rights 
 and the evidences of the right. This is true of a share of stock in 
 a corporation and the certificate of stock which is the legal evi- 
 dence of the existence of the share. It is perhaps the real differ- 
 ence between estate and title. 
 
 It is clear that differences so great as those between things per- 
 manent and transitory, things movable and immovable, and 
 things corporeal and incorporeal, cannot be entirely ignored by 
 the law. On the contrary, these distinctions are taken very 
 largely into account by the law in dealing with things and in es- 
 tates or interests in things, and the methods by which title may 
 be proved. 
 
 Things Real. 
 
 Things which, in their nature, are permanent and immovable, 
 or to which these qualities are attributed by fiction of law are 
 called things real. Things not possessing these qualities or to 
 which these qualities are not attributed by law are tilings per- 
 sonal or chattels.
 
 378 AMERICAN ELEMENTARY LAW. 
 
 The terras most generally used to denote things real are lands, 
 tenements, and hereditaments. Eaeh of these in some measure 
 suggest the idea of permanency and immobility. Land signifies 
 the earth's surface ; a tenement is such property as, under the old 
 Common Law, could have been held by feudal tenure. These 
 holdings were always lands or things immediately connected 
 therewith. Hereditaments were things capable of being inherited. 
 Under the old Common Law, lands and estates in land went to 
 the heirs of the deceased owner, while chattels were used to pay 
 the debts of the ancestor, the surplus, if any, going to the per- 
 sonal representative of the deceased rather than to his heirs. 
 
 Under the American Law in which feudal tenures were never 
 known, and under which personal property is as heritable as 
 land, the terms tenements and hereditaments have become less 
 applicable and the word land is now used, ordinarily, to indicate 
 all immovable and permanent things. Following this testimony 
 of the law, we will use the word land in this sense most frequently 
 in our treatment of the subject. 
 
 Things real include both corporeal and incorporeal things. 
 The corporeal are now generally included under the term land, 
 including the surface of the earth and things permanently an- 
 nexed thereto and in law, made parts thereof. The incorporeal, 
 at Common Law, were held to include a number of heritable rights 
 issuing out of or exercisable in connection with corporeal things. 
 Of these the most important at this time are known as easements. 
 
 Land. — Land embraces all the material substances which con- 
 stitute the surface of the earth, including soil, rocks, minerals of 
 all kinds, and water; also trees, and all other natural vegetation 
 growing from and attached to the soil ; and all permanent struct- 
 ures and improvements erected on the soil by the owner, or others 
 lawfully in possession, with the intent to fix or attach the same 
 permanently thereto, or erected by trespassers regardless of the 
 intent with which they are made. Structures so annexed are 
 called fixtures. 
 
 According to the ancient Common Law, he who owned any 
 portion of the earth's surface was held to own to the center of 
 the earth below and to the vault of the heavens above. Under 
 this doctrine, no one could dig so deep into the earth as to get be- 
 low the estate of him who owned the surface, nor could he go so
 
 PROPERTY. 379 
 
 high in space as to be above this estate. The latter doctrine, that 
 is, that ownership of the surface extends to the vault of the 
 heavens, is being questioned of late years. What the result will 
 be cannot now be determined. If the right of the owner of the 
 soil stops short of the vault of the heavens at just what distance 
 above the surface it shall cease and how high one passing over it 
 must go to avoid being a trespasser is not yet ascertained. 
 
 As immobility is one of the principal characteristics of land, it 
 seems, and in fact is, somewhat inconsistent to regard water and 
 liquid minerals as land. Here as in many other instances the law 
 is practical rather than logical, and hence regards water, oil, and 
 other liquid substances found in or upon the surface of the earth 
 as parts of the earth in or upon which they are collected and in- 
 cludes them in the term land. 
 
 While liquid minerals and water are regarded as land the law 
 recognizes their natural mobility and declares them to be parts of 
 the particular tract of land upon which they may be temporarily 
 located. The rule as to ownership is modified by these facts. 
 The liquid mineral belongs to him upon or within whose land it 
 is. As to these minerals the ownership attaches to and vests in 
 the mineral itself so long as it remains upon the particular tract 
 of land, and if it is taken from the land and appropriated by the 
 owner his title thereto becomes fixed and permanent. If, how- 
 ever, the owner does not appropriate the liquid mineral while it 
 is on his premises, but permits it to pass off onto other lands, his 
 right is lost and he cannot follow and reclaim the mineral. 
 
 But if a trespasser shall enter upon the land and separate the 
 mineral therefrom and seek to appropriate it, this appropriation 
 enures to the benefit of the owner of the soil and the mineral so 
 taken into possession, is the property of such owner and the tres- 
 passer is responsible to him therefor. The liquid mineral was 
 actually separated from the soil at a time that it was the property 
 of the owner of that particular tract of land and was reduced to 
 possession on\ his premises and its passage on+n the lands of 
 adjacent proprietors was thus prevented. It thereby became the 
 subject of ownership, not as a part of the realty, but as a distinct 
 commodity, and having belonged, at the time of its separation, to 
 the owner of the land from which it was taken, his title continues. 
 
 The rules which govern the adjustment of the rights of parties
 
 380 AMERICAN ELEMENTARY LAW. 
 
 and the measure of damage vary with the varying circumstances 
 of the particular cases. 
 
 The rules governing ownership of water are peculiar and are 
 reserved for special treatment. 
 
 Fixtures. — The most interesting and difficult questions on this 
 subject arise in connection with fixtures. These are structures, 
 or annexations, to the soil which, from their nature, may or may 
 not be permanent or immovable. Whether they are part of the 
 freehold depends mainly on the intent with which they are put 
 on the land. In most cases this intent is a matter of fact, to be 
 determined by all the circumstances; in a few cases it is pre- 
 sumed by law. The tests to be applied are very tersely given by 
 Judge Moore, in Hutchins v. Thompson (46 Texas, 551). He 
 says: "The criterion to determine whether a chattel has become 
 an immovable fixture consists in the united application of the 
 following tests : 
 
 " (1) Has there been a real or constructive annexation of the 
 articles in question to the realty ? 
 
 " (2) Was there a fitness or adaptation of the articles to the 
 and purpose of the realty with which it is attached ? 
 
 " (3) Was it the intention of the party making the annexation 
 that the chattel should become a permanent accession to the free- 
 hold, this intention being inferable from the nature of the article, 
 the relations and situations of the parties interested, the policy 
 of the law in respect thereto, the mode of annexation, and the 
 purposes and uses for which the annexation was made?" 
 
 Of these tests, prominence is given to the intention of the party 
 to make the article a permanent accession to the freehold; the 
 others are chiefly of value as evidence of this intention. 
 
 When the annexation is made by one who is unconditional 
 owner both of the land and of the thing annexed the question is 
 almost exclusively one of intent in fact. 
 
 When annexation is made by one who has only a conditional 
 title in the land and absolute title in the chattel, his right of 
 possession of the realty being derived from another, and being 
 dependent upon the performance by him of some act which he 
 may or may not do, as he should prefer, the intent to perma- 
 nently annex and make part of the freehold is conclusively pre- 
 sumed in favor of the party having the reversionary interest. If
 
 PROPERTY. 381 
 
 such conditional interest shall cease because of failure of party in 
 possession to perform the act necessary to perfect his title, or 
 continue it, the chattel will go with the land, as in case of party 
 in possession under a conditional contract of purchase, either 
 precedent, as where purchase money is not paid, or subsequent, as 
 where defeasance is based on breach of condition subsequent. 
 
 "Where the attachment is made by a tenant, he may remove, but 
 he must exercise his right during the term. This is particularly 
 true as to trade fixtures. There is a difference of opinion in case 
 of renewal of the lease after annexation, when no right of re- 
 moval is reserved in the second lease. The larger number of 
 authorities hold that the right is lost, but quite a number hold 
 the other view. 
 
 Where the annexation is made by a trespasser, if it be perma- 
 nent in its nature and attached to the soil, either directly, as a 
 house, or indirectly, by attaching to a house already built, the 
 law conclusively presumes that it is an immovable fixture and 
 declares it to be a part of the land. If the trespasser making 
 the attachment knew that he was such, the owner of the land gets 
 the attachment without any liability for compensation. If the 
 trespasser had good reason to believe and did believe that he was 
 the owner of the premises when he made the improvement, the 
 attachment nevertheless belongs to the owner of the land, but in 
 equity, and in many States under special statutes, the owner is 
 required to make just compensation for the benefit which he re- 
 ceives from the improvement. There are numerous equitable and 
 statutory rules governing these adjustments but the fundamental 
 doctrines are as above stated. 
 
 Easements. — So far we have considered corporeal things real. 
 There are certain rights issuing out of and exercisable over or in 
 connection with land which are also regarded as real. The most 
 important of these, in modern law, are known as easement*. 
 
 A proper definition of an easement is difficult to give. Mr. 
 Cooley does not attempt it. Mr. Bishop (Non-Contract Law, 
 862) says: "The terms easement and servitude are correlative, 
 the easement being a right in the nature of an estate, and the 
 servitude its corresponding burden. More exactly, an easement 
 is an incorporeal hereditament, or chattel interest, attached to 
 the person of an individual, or the public, or the land of either, in
 
 382 AMERICAN ELEMENTARY LAW. 
 
 another's land; a servitude is the burden imposed on the land by 
 the easement. There can be no easement without a servitude, or 
 servitude without an easement." The estate entitled to the ease- 
 ment is called the dominant estate ; that subject to it, the servient 
 one. 
 
 In 6 American and English Encyclopaedia of Law, 139, it is 
 said: "An easement is a privilege, without profit, which the 
 owner of one neighboring tenement hath of another, existing in 
 respect of the several tenements, by which the servient owner is 
 obliged to suffer, or not to do, something on his own land, for the 
 advantage of the dominant owner." 
 
 Neither of these definitions is entirely satisfactory, though each 
 is fairly accurate. I suggest the following : 
 
 An easement is an incorporeal right which the public or an in- 
 dividual has in the use, control, or enjoyment of lands belonging 
 to another which does not give the right of possession or profit. 
 
 Easements must be distinguished from "profits." which give a 
 right to take or remove the soil itself, or jsomething growing 
 thereon, and from leasehold estates which entitle the holder to 
 possession. The term easement is restricted to those incorporeal 
 rights which relate to the use of the property of another which do 
 not contemplate or require possession of the land, as a right to 
 pass over it in a certain way, for a certain purpose, or at a cer- 
 tain time; or, to such as constitute restrictions on the owner's 
 right to use for certain purposes or in certain way, and yet give 
 no right of entry or use by the party enjoying the right, as a 
 limitation on the right of the owner to conduct certain businesses 
 on the land not amounting to nuisances, or permit another to do 
 so; or to the right to interfere with or prevent the passage of 
 water, or light, or air from the premises of one owner onto those of 
 another. 
 
 The easement may be in a person, without reference to his own- 
 ership of land, in which it is called an easement in gross; or it 
 may exist in regard to or in behalf of one tract of land on or 
 against another tract, in which case it is called an easement ap- 
 purtenant. 
 
 Easements appurtenant can only exist as between two or more 
 tracts of land. The tract in favor of which the easement exists is 
 known as the dominant estate, the tract subject to the easement is
 
 PROPERTY. 383 
 
 known as the servient estate. In some instances, the one estate is 
 dominant from one point of view and servient from another. 
 Take the case of the respective rights and duties of owners 
 of adjacent tracts of land crossed by the same running stream. 
 If we consider the matter from the point of view of the upper 
 proprietor's duty to let the water pass off his land onto the lower 
 tract, the lower tract is the dominant and the upper the servient. 
 If, however, we change the point of view and consider the duty of 
 the owner of the lower tract to receive onto his land the water 
 passing thereon from the higher tract, the higher tract becomes 
 the dominant and the lower the servient. 
 
 Easements appurtenant run with the land, that is, they are so 
 attached thereto that they pass with the land with every change 
 of ownership. 
 
 The right to an easement may be established by showing an 
 express contract granting the right, or facts from which a grant 
 may be presumed or from which title by limitation may arise. In 
 every case of grant or prescription the right depends upon the 
 grant, real or presumed, and its exercise must conform to the 
 terms of the grant. If a right of way is expressly given across an 
 estate at a particular place it can be exercised nowhere else. If 
 it be for particular purposes, as to go to mill or draw water or 
 get wood, it is limited to use for such purposes and can not be 
 enlarged so as to embrace another not fairly within the grant. 
 The same is true of easements from implied grants, as a way of 
 necessity. The party can only claim a necessary way, not the 
 most convenient to him, and this having once been established, 
 must be strictly adhered to. And so of prescriptive rights of this 
 character. Here the grant is presumed from a continued use for 
 a fixed time, and use for such time, in one manner, for one pur- 
 pose, and to one extent, will not give right to use in a different 
 manner or for a different purpose or to a greater extent. This is 
 also true of rights acquired by limitation. 
 
 The infringements of these rights vary with the nature of the 
 rights themselves. He who has an easement in the property of 
 another, in gross, or as owner of the dominant estate, is entitled, 
 in law and equity, to its full enjoyment. As before said, his right 
 is limited to the grant, real or presumed, and no act or omission 
 not violative of the right could be a legal injury. The remedy is
 
 384 AMERICAN ELEMENTARY LAW. 
 
 damages for wrongs already done, and injunction against contin- 
 uance, and, in proper cases, abatement of the physical conditions 
 which constitute or produce the infringement of the right. 
 
 Tenures. — In legal theory the paramount title to all lands is in 
 the sovereign. Under the feudal system large portions of land 
 were granted by the king to the higher order of nobility to be 
 held by them in consideration of their loyalty to him and of serv- 
 ices to be rendered to him and to the state. These nobles in turn 
 let the lands out to others who were to hold under them and to 
 render them fealty and service. After the conquest of England 
 by William of Normandy many of the lands in England were 
 held under these feudal tenures. The basis of feudal tenures was 
 royalty supported by aristocracy, both served by the common 
 people. To perpetuate this policy it was necessary to have 
 large landed estates. To maintain this system it was necessary to 
 establish very great and mandatory limitations upon the aliena- 
 tion of land and to limit its inheritance to one male in the line of 
 descent. Each of these ideas is repugnant to our American insti- 
 tutions. 
 
 The colonists from England who settled the Atlantic Seaboard 
 necessarily brought with them the English Common Law as it 
 then existed. But it was equally necessary that this Common Law 
 should, even at the beginning of the settlements, be modified 
 somewhat to suit American conditions. 
 
 As the colonies increased and prospered and became more and 
 more self-sustaining, they slowly and intermittently made still 
 greater departures from the inapplicable portions of the Common 
 Law. 
 
 Finally, when the States revolted and established their inde- 
 pendence, thus throwing off their aUegiance to the king of Eng- 
 land, the collective people of each state as the sovereign within 
 its territory succeeded to such prerogatives of royalty as survived 
 such radical changes in political theory and governmental insti- 
 tutions. 
 
 Among these prerogatives that attached to the people of each 
 State was the sovereignty of the soil or the paramount title to all 
 lands within its territory. All lands theretofore granted within 
 the boundaries of the respective States were, from that time on, 
 hold en under the State. All land that had not been granted to
 
 PROPERTY. 385 
 
 private individuals became public domain and property of the 
 State. Some of this, the States continued to hold as belonging to 
 them respectively and to grant to private owners from time to 
 time as the Legislature of each provided. Some of the land, 
 further in the interior, which was claimed by the States, was by 
 them ceded to the United States Government. 
 
 Later the United States acquired large territories by treaties 
 with different European governments and Mexico. The lands 
 thus acquired were some of them granted to private owners by 
 the United States Government, and the paramount title to some 
 of them was passed to States created within this territory. 
 "When the Republic of Texas achieved its independence, it suc- 
 ceeded to the former sovereigns who had exercised jurisdiction 
 over its territory, in this right of paramount title to the land. 
 Upon annexation with the United States this sovereignty over its 
 territory was retained by Texas. 
 
 From this brief historical statement it is seen that feudal 
 tenures never obtained in any part of the United States and no 
 land within the boundaries of the Union is now held thereby. 
 On the contrary all tenures in the United States are allodial, that 
 is, are derived from the sovereign either without consideration or 
 for consideration paid in money or services. No feudal service is 
 or could be lawfully exacted in return for the grant of estates in 
 land. Almost universally the State grants its land by fee simple 
 title. This title, of course, is subject to the powers of eminent 
 domain and of taxation and the limitations heretofore discussed 
 as growing out of the just rights of others* 
 
 The State may, of course, lease its lands or grant other titles 
 less than the fee. This policy has occasionally been pursued by 
 some of the States. 
 25
 
 CHAPTER XX. 
 
 PROPERTY (CONTD.) 
 ESTATES. 
 
 The word estate at Common Law is defined as "The degree, 
 quantity, nature, and extent of interest which a person has in 
 real property" (Bouvier's Law Dictionary, Estate). It signifies 
 the extent and nature of the owner's right in the thing owned. 
 
 In its earlier use it was limited to interests in real property but 
 now is applied to interest or ownership in chattels. 
 
 It extends from the smallest right recognized by law in things 
 to full ownership. Having so broad a range, it of necessity in- 
 cludes interests of a great many different kinds. These, in their 
 various distinctions, cannot be taken up in detail in a work like 
 this. A few of the more important classes of estates in real prop- 
 erty will be enumerated and partially defined. 
 
 Different Kinds of. — An estate in fee simple is the largest pos- 
 sible interest and fullest ownership that one can have in land. It 
 exists wherever the estate enures to the benefit of the present 
 holder and his legal heirs without condition or limitation. Such 
 an estate is, by its nature, inheritable; still the entire right is re- 
 garded as in the present owner and he may alienate the land and 
 convey to the grantee the entire fee. He may carve out of it and 
 convey any smaller estate not prohibited by law. 
 
 A fee-tail is an inheritable estate which descends only to the 
 heirs of the body of the decedent or to such of them as come 
 within the terms of the grant by which the estate is created. The 
 holder of an estate tail could not alienate it so as to cut off the 
 rights of the designated heirs. These estates are forbidden by 
 the constitutions of many of the States of the Union. 
 
 Estate of freehold includes all estates in land of inheritance or 
 for life except copyholds and leaseholds. 
 
 Copyhold estates do not exist in America.
 
 PROPERTY. 387 
 
 Leasehold estates are estates created by a contract known as a 
 lease under which the lessee is entitled to the benefits and posses- 
 sion of the land for a period specified in the contract. The term 
 may be either for life or for a designated period of time or dur- 
 ing the pleasure of one or both parties. 
 
 Estates for years are leasehold estates for a definite or limited 
 time. 
 
 Estates for life are estates which cannot extend beyond the life 
 or lives of designated persons. In no event is such an estate in- 
 heritable. If it be limited expressly to the life of the tenant it 
 terminates upon his death. If it be limited to the life of another 
 or others by its express terms it ends with the death of the sur- 
 vivor of those during whose lives it was to continue. It is also 
 limited by legal implication to the life of the tenant. It is, how- 
 ever, reckoned among the freehold estates. 
 
 A reversion is the right or estate existing in one who has a fee 
 .simple estate in land and has conveyed some less estate to an- 
 other, or one who has conveyed the fee in the land subject to some 
 contingency, to receive back the full estate upon the ending of 
 the less estate or the happening of the contingency terminating 
 the estate in fee, which he has conveyed. 
 
 A remainder is a right or estate in land which is to be enjoyed 
 upon the termination of some less estate created at the same time 
 that the remainder is. 
 
 Reversions and remainders differ in that the right to the re- 
 versions exist in him who grants the less estate or the contingent 
 estate before he makes the grant and the estate simply returns to 
 him from whom the less estate emanated while in a remainder the 
 less estate and the remainder are both created by grant from a 
 common grantor, the remainder to take beneficial effect only 
 upon the expiration of the less estate. 
 
 Thus, if A owns a farm, and rents it for ten years to B, after 
 the ten years have passed the farm will go back, or revert, to A, 
 to his heirs, or to his assignees, that is, to A, or to some one hold- 
 ing an estate derived from A, after the renting of the farm. But. 
 if A, by deed, shall pass the title to the land to B for ten years, 
 and after that to C, the estates of B and C both being created at 
 the same time, then C would be a remainderman. The property 
 could not revert to him, because he never had it. His only inter-
 
 388 AMERICAN ELEMENTARY LAW. 
 
 est in it is an estate, the beneficial uses of which will begin after 
 the ending of B's interest. There is a great deal written about 
 these different estates, and many fine distinctions are made be- 
 tween them and their subdivisions, but we can not go into detail. 
 
 One of the most important kinds of estates in land is mort- 
 gages. These are conveyances made by the owner, to be void 
 upon payment of money owed by the mortgagor, or some one in 
 whose behalf the mortgage is given. 
 
 At Common Law, the effect was to convey the legal title to the 
 land to the mortgagee, to be reconveyed, upon the payment of the 
 money which the instrument was given to secure. In some States 
 the debt is regarded as the principal thing, and the mortgage as 
 security for the debt ; so that, in such States, whatever destroys or 
 settles the debt, terminates the mortgagee's right in the land. 
 
 "While the mortgage continues, and before default in payment 
 of the debt, the fact of the mortgage makes no difference in the 
 mortgagor's right to possess the land, and enjoy its revenues. He 
 can not rightfully commit waste upon it, or so deal with it as to 
 diminish its value, and if he is doing so the mortgagee can pre- 
 vent him, by the proper proceedings. 
 
 Upon default of payment, at Common Law, the creditor could 
 enter into possession and take the revenues of the property. 
 Equity, however, relieved the harshness of this rule, by allowing 
 the debtor to come in, within a reasonable time, pay the debt and 
 all proper charges, and redeem the land from the mortgage. This 
 is called the Equity of Redemption. The term is also frequently 
 applied to the right given to the debtor, by statute, in some juris- 
 dictions, to come in, even after the sale of the land under judg- 
 ment of a court, and pay all the debt and costs, and get the land 
 back. 
 
 Upon default of payment, in those States in which the mort- 
 gage is regarded as a mere incident to the debt the mortgagee can 
 not enter upon the land, but must bring suit for the debt, and 
 obtain a judgment and get a decree ordering the land sold to pay 
 the debt and costs. This is called a decree of foreclosure. Even 
 after such a decree, the debtor may pay the amount due on it, at 
 any time before the actual sale of the land ; but, if it is not paid 
 by that time ordinarily the interest of the debtor in the land is 
 gone, and he has no further right to redeem it. Mortgages must
 
 PROPERTY. 389 
 
 be executed in the same way and recorded just as conveyances of 
 land are. 
 
 It is frequently expensive to bring suit and obtain decree of 
 foreclosure; and, to obviate this, the debtor, instead of giving 
 a simple mortgage, as discussed above, may give a mortgage with 
 power of sale, or a deed of trust. These are instruments, exe- 
 cuted by a debtor, or some one interested in him, conveying the 
 land for the purpose of securing a debt, and authorizing the 
 grantee in the conveyance to sell the land, without the necessity 
 of suit, and to apply the proceeds to the payment of the debts 
 secured by the instrument. 
 
 When the one to whom the conveyance is made is the creditor, 
 the instrument is still a mortgage, but differing from those just 
 discussed, in the power which the mortgagee has to sell the prop- 
 erty and pay the debt without suit. In recognition of this differ- 
 ence, the instrument is called a mortgage with power of sale. 
 
 When the conveyance is made to a person not the creditor, it 
 loses its distinctive characteristics as a mortgage ; and, as the title 
 conveyed is not an absolute one, but one which the grantee holds 
 for the purpose of securing the payment of the debt to a third 
 party, it is called a deed of trust. The instrument gives to the 
 trustee the right to sell the land, on the terms and in the manner 
 designated in the deed ; and hence, there is no necessity to sue to 
 enforce payment from the land. The trustee sells it in accord- 
 ance with the provisions of the instrument. 
 
 Even when the security takes this form, the debtor in some 
 States, has the right to the use and profits of the land, not only 
 before default in payment, but" afterward until the sale is actu- 
 ally made, and payment at any time before the sale is completed 
 will destroy the power given in the instrument, and save the 
 property to the debtor. 
 
 If the one authorized to sell shall refuse or neglect to do so, or 
 shall be incapacitated from so doing, the power can not be exe- 
 cuted by any other person, unless the instrument provide some 
 method of substituting another to act, and this method has been 
 followed. Otherwise, the creditor must sue and obtain decree of 
 foreclosure. 
 
 The effect of sale, under a properly executed power, or under a 
 decree of foreclosure, is to pass to the purchaser of the land the
 
 390 AMERICAN ELEMENTARY LAW. 
 
 title and estate of the mortgagor therein at the date the mortgage 
 or deed of trust was given, or at any time thereafter ; so that, if the 
 debtor has sold it, since giving the mortgage, the purchaser at the 
 sale made to pay the debt, will take title superior to that of the 
 one purchasing from the mortgagor, unless, of course, the latter 
 were an innocent purchaser, without notice and for value. 
 
 Estate by curtesy is the life estate which a husband has at 
 Common Law in the lands of which his wife was seised either in 
 fee-simple or in fee-tail during the coverture. It is dependent 
 upon the fact of issue capable of inheriting the land having been 
 bora to them during coverture. 
 
 There are a number of different kinds of dower at Common 
 Law. The most frequent was that known as dower by Common 
 Law. This is substantially the only kind that exists in the United 
 States. 
 
 Dower' by Common Law is a life interest which the wife has in 
 a third part of all the lands and tenements of which her husband 
 was seised of an inheritable estate at any time during the cover- 
 ture and which any issue she might have had might by possibility 
 have inherited. 
 
 Dower does not exist in a number of the States of the Union. 
 In most, if not all, of those in which it does exist it is determined 
 and defined by statutes based upon and modifying the Common 
 Law as just stated. 
 
 The foregoing comprise the different lands of interests known 
 to the Common Law which are of the most practical importance 
 at this time. It is apparent that almost any one of these estates 
 may be vested in one person to the exclusion of all others, or that 
 several persons may be concurrently interested therein. Of the 
 latter kind of estates the three most important are estates in 
 common, estates in coparcenary, and estates in joint tenancy. 
 
 Estates in common are estates in which two or more persons 
 hold joint possession of property though their rights depend 
 upon several and distinct titles. 
 
 Estates in coparcenary exist when two or more persons have or 
 are entitled to joint possession of property under the same title 
 derived at the same time by inheritance. Their shares or inter- 
 ests need not be equal. 
 
 Estates of joint tenancy are estates acquired by purchase and
 
 PROPERTY. 393 
 
 under which the several tenants hold equal shares. The word 
 purchase here is used in its Common Law signification, including 
 every means of acquisition except by inheritance. The most im- 
 portant peculiarity of joint tenancy is the doctrine of survivor- 
 ship under which upon the death of each tenant the share previ- 
 ously owned by him passes, not to his estate or heirs, but to his 
 joint tenants. 
 
 The distinctions between these several estates are not nearly so 
 important in many of the American States at this time as they 
 formerly were, as the law of such States has repudiated the doc- 
 trine of survivorship among joint tenants and now practically 
 deals with all persons having concurrent interests in property as 
 tenants in common. 
 
 Real and Personal Property. 
 
 Among the legal terms in very frequent use are real estate and 
 real property on the one hand and personal property, personalty 
 and chattels on the other. 
 
 Of these the first two are used as practically synonymous. This 
 is true also of the last three. 
 
 Technically there are supposed to be nice shades of difference 
 between the terms in each group. Practically it may be less con- 
 fusing to deal with those in each group as having the same mean- 
 ing. 
 
 Real Estate. — Each of the words in this phrase has significance. 
 The first indicates the nature of the thing to which the phrase 
 may be applied; the second suggests the idea of ownership or 
 interest, though it does not indicate its character. To under- 
 stand the phrase we must take in both of these points of view. 
 
 The word real, as used at Common Law, in nearly all instances 
 applies to land and suggests its two leading characteristics, per- 
 manency and immobility. This is true here, and hence real estate 
 is never applied to nor made to include anything that is not per- 
 manent and immovable, either in fact or in legal contemplation. 
 It has been seen in the discussion of things real that the term 
 land includes practically all things having these qualities, though 
 in a few instances the law attributes these qualities to things which 
 do not in fact possess them. We found also that there are certain 
 rights incident to or enjoyed in connection with land which are 
 immovable. These rights may or may not be permanent. In
 
 392 AMERICAN ELEMENTARY LAW. 
 
 those eases in which they are permanent, they are classed among 
 things real. 
 
 The subject matter of real estate is therefore land, permanent 
 fixtures attached thereto, and permanent rights incident to, issu- 
 able out of, or enjoyable in connection with land, known as ease- 
 ments, and certain other things, such as deer in parks or in 
 landed estates, and some others to which the law ascribes the idea 
 of permanency and immobility. 
 
 Passing over to the nature of the estate which the law requires 
 in this connection, we find that it must have two characteristics, 
 viz., inheritability and indefiniteness of duration. If an estate 
 lack either of these qualities it does not meet the law's require- 
 ment as to real estate. 
 
 "We may, therefore, define real estate or real property as things 
 real held by inheritable and indeterminate title. 
 
 Personal Property. — It seems to be the generally accepted rule 
 that all property or estates which are not real estate are properly 
 classed as personalty. 
 
 At one time there was a third class known as chattels real but 
 this idea and classification has lost favor and fallen into disuse. 
 
 Personal property and its synonyms, personalty and chattels 
 therefore, includes all things which are not in their nature either 
 in fact or in theory of law both permanent and immovable. This 
 is true without reference to the nature of the estates or title by 
 which they are held. The highest title known to the law over a 
 transient movable chattel cannot be regarded as real estate. 
 
 These terms also include all estates or interests in things real 
 which are not inheritable and must terminate at a definite time. 
 An estate in land for the life of the owner, while it is regarded as 
 a freehold is not real property. The subject matter of the own- 
 ership is immovable and permanent and the estate is indeter- 
 minate in duration but it is not heritable and hence is personal 
 property only. A leasehold estate in land for ninety-nine years, 
 or a longer definite period, is not real estate. The land is real, 
 the estate is heritable, but its duration is limited to a definite 
 period, hence it is regarded as a chattel interest. 
 
 Licenses. 
 
 Having briefly considered the principal estates in land, we now 
 take up the subject of license.
 
 PROPERTY. 393 
 
 Simple permission or invitation to enter one's land is a license. 
 Licenses are not estates, and are exhausted, usually, by one user, 
 or may be revoked at the will of the owner of the land. 
 
 Licenses are of three kinds : 
 
 (1) Those impliedly given by the owner. 
 
 (2) Those expressly given by the owner. 
 
 (3) Those given by law. 
 
 The first are such as are presumed to be given by the owner of 
 the estate, in absence of legal requirement, and without express 
 invitation or statement, to the licensee. They embrace all those 
 invitations which are presumably extended to members of the 
 public to come to the place of business of every man who is con- 
 ducting any business sustained by and dependent on public pat- 
 ronage. This is presumed, as a matter of course, from his enter- 
 ing on such business. The license is, however, limited to the pur- 
 pose for which the business is carried on. 
 
 On the same principle, persons are generally presumed to have 
 permission to enter the private premises of another to see any of 
 the occupants socially, or on legitimate business, or to make 
 proper inquiries for information. This license is, of course, much 
 more restricted than the former, and it would require much less 
 to indicate a revocation. 
 
 Express license exists in every case in which the owner of an 
 estate has expressly invited or permitted another to come upon 
 his premises. 
 
 A mere license, whether express or implied, is always revocable, 
 unless the facts and circumstances are such as to work an estop- 
 pel against the licensor. Such estoppel arises when the license is 
 coupled with a legal interest. Thus, if A owns a lot and has a 
 quantity of hay stored on it, and sells the hay to B and gives him 
 permission to enter and take it off, such license is coupled with an 
 interest in B, his right to remove the hay, and is, therefore, ir- 
 revocable by A, but may be lost by lapse of a reasonable time 
 without user. And if A should refuse B permission, within a 
 reasonable time, to enter and remove the hay, he would be re- 
 sponsible for damages. If, however, instead of selling hay, or 
 other personal property, A had sold B one hundred standing 
 trees, and given no written permission to enter and cut them, or 
 no written evidence of right, such license would be revocable at
 
 394 AMERICAN ELEMENTARY LAW. 
 
 any time, because the trees, being a part of the real estate, would 
 not pass by parol sale, and B would acquire no legal right or title 
 to them, and would not have acquired any legal interest, under 
 the license to enter. 
 
 A parol license to one to enter and erect improvements on land 
 and use them for a specified time, will prevent the entry from 
 being tortious, but it is revocable, even though the licensee has, 
 with the knowledge of the licensor, expended large sums of 
 money on the improvements, and they are permanent in their 
 nature. The right to use and enjoy the land of another in such 
 manner can only be acquired by contract in writing, and parol 
 permission can not be enforced. 
 
 Licenses by Law. — In a few cases the law gives the right to 
 enter the lands of another. 
 
 (1) In case of fire one may enter upon the premises burning to 
 put out the fire, or he may enter on the adjoining premises, 
 though belonging to another, for the purpose of fighting the fire. 
 
 (2) "Where a public highway is obstructed, travelers may cross 
 the premises adjoining without responsibility, provided they do 
 no more injury than is reasonably necessary. 
 
 (3) In some States in case of preliminary survey of lines of 
 railroad entry may be made without liability. 
 
 (4.) An officer, having process, may enter the premises of an- 
 other to serve it. In case of felony, breach of the peace, or search 
 warrant, he may break down the door, if necessary, but he cannot 
 do so to serve other process. 
 
 Trespass ab Initio. — An officer entering premises to serve 
 a warrant or seizing or taking possession of property under a 
 warrant is justified in obeying the command contained in the 
 writ. If, however, he should go beyond the authority conferred 
 by the writ and perform acts not covered thereby, or if having 
 entered upon lawful obedience to the process he shall fail to do 
 what the writ requires, he loses any benefit from the writ and is 
 regarded in law as a trespasser from the beginning. 
 
 Thus, an officer has a writ commanding him to seize and sell 
 property belonging to a debtor named therein and pay the pro- 
 ceeds over to the judgment creditor. If he shall seize the prop- 
 erty and sell it and pay the money over as directed by law he is 
 not responsible for the fact that the property brought less than
 
 PROPERTY. 395 
 
 its real value at the legally conducted sale. But if he takes the 
 property and sells it and retains the money himself this breach of 
 legal duty makes him a trespasser from the beginning and he is 
 responsible, not for what the property brought at the sale under 
 the process, but for the full market value at the time and place 
 at which he took possession of it. 
 
 Fences. — An important matter in connection with the owner- 
 ship of land and of living animals is shall the owner of the land 
 protect it from intrusion by animals, or shall the owner of the 
 animals prevent them from intruding upon the lands of others? 
 At Common Law the owner of the animal was required to re- 
 strain it, and if he permitted or caused it go upon the lands of 
 another he was responsible for the trespass. In about half the 
 States o£ the Union this Common Law rule still obtains. In the 
 others it has either been abolished by statute or has been disre- 
 garded as inapplicable to the local conditions. In these latter 
 States the owner of land must fence it so as to keep stock off, 
 otherwise he cannot recover any damage for entry by an animal 
 not directly attributable to the conduct of the owner. Even in 
 these States, however, if the owner of the animal purposely causes 
 it to go upon the land of another without the latter 's consent, ex- 
 press or implied, he thereby becomes a trespasser and liable as 
 such. 
 
 We may, therefore, say that at Common Law and in about half 
 the States of the Union a fence is a barrier or obstruction to keep 
 animals in and in the other States of the Union a fence is a bar- 
 rier or obstruction to keep animals out. 
 
 Rights in Water. 
 
 Rights in water, or riparian rights, as they are frequently 
 called, are of sufficient importance and interest to warrant a 
 brief, separate treatment. 
 
 The law recognizes three kinds of water: Subterranean, Sur- 
 face, and in Streams. The rules governing each of these are dif- 
 ferent. 
 
 Subterranean Water. — These are waters in the ground, which 
 do not come out through natural openings, but are reached by 
 excavations of some sort. The depth or manner of excavation is 
 not material, provided the opening is an artificial one, and the 
 water is obtained only through that means or is a natural one
 
 396 AMERICAN ELEMENTARY LAW. 
 
 from -which water does not flow. There is great practical differ- 
 ence in the different excavations in their depth, size, and manner 
 of making; but so long as the water is and remains strictly sub- 
 terranean, there are no legal differences growing out of these 
 varying physical conditions. 
 
 A man may dig his well on his own land, and use the water 
 from it for any purpose, not in itself unlawful, although it may 
 result in the deprivation of his neighbor. Thus, if one have 
 a well on his land which furnishes him an ample supply of water, 
 and the owner of an adjacent tract digs a well and obtains water 
 of just the same kind, and the use of the latter well is followed by 
 failure of the former, no liability attaches to the digger of the 
 second well. 
 
 The reason usually given for this is that the failure of the first 
 well is not the direct and proximate result of the digging of the 
 second. In the first place, it is by no means sure that this was, in 
 fact, the cause ; but, even if the conditions were such, after the 
 second well was dug, as to make this probable, or even certain, yet 
 it would not follow that this actual result should have been fore- 
 seen by a reasonably prudent man as a probable result. The 
 source of the underground supply of water can not, ordinarily, 
 be known, and usually one would not have any good reason to be- 
 lieve that, by digging the second well, the first would be injured, 
 and the law judging the Tightness of conduct by the conduct it- 
 self, and its probable results, does not hold it unlawful because it 
 afterwards transpires that it has resulted in unforeseen injury to 
 another. This is practically the doctrine announced in the cases. 
 
 It sometimes happens that one, in excavating for water, finds 
 such a supply that it rises through the opening and flows out over 
 the surface of the ground. These are called artesian wells. So 
 far as the use of the water thus obtained is concerned, the rules 
 of law seem to be the same as in regard to other wells, but an addi- 
 tional cause of difficulty arises : What is to be done with the sur- 
 plus water ? Must the man who has brought it up take care of it, 
 or may he let it go ? If he must care for it, for how long, and to 
 what extent? 
 
 The weight of authority is that he must care for it, either 
 by confining it on his own premises in such a manner as not to in- 
 jure otb*«*s, or by securing for it a passage to some ancient water
 
 PROPERTY. 397 
 
 course and emptying it there. This must be a stream having a 
 bed and a channel sufficient to carry off the aggregate of its nat- 
 ural supply and that coming from the well. For inundation and 
 other injuries resulting from the flow, before it safely empties 
 into the stream, the digger of the well is responsible. 
 
 Surface Water. — This includes all water falling as rain, sleet, 
 or snow, before it has found its way into the channel of a water 
 course. This is called surface water, so long as it is spread out 
 over the surface of the ground, and until it reaches some running 
 stream and mingles with its waters. If it has run down into low 
 places or ravines which are usually dry, it is still surface water 
 and any proprietor of land has the right to prevent its coming 
 onto his land, even if in doing so he cause it to injure another. 
 He does not owe the duty of receiving it from the adjoining land. 
 His right, however, is limited to a refusal to receive. If he once 
 permits it to come upon his land he cannot thereafter obstruct it 
 on his land so as to throw it back upon the land of the upper pro- 
 prietor. 
 
 The foregoing are the doctrines of the Common Law and obtain 
 generally in the United States except in those States which, either 
 by statutes or by the action of their courts, have followed practi- 
 cally the rules of the Roman Law or modifications of these rules. 
 
 In a number of States there are statutes regarding surface 
 water regulating the rights of particular classes of persons, as, 
 for instance, railroad companies in the building of their tracks, 
 etc. 
 
 Water in Streams. — The rules of law, as to this third class of 
 waters, differ materially from those announced above, and require 
 special treatment. 
 
 A water course, as the words are used in this connection, has 
 been defined as "A stream usually flowing in a particular direc- 
 tion, though it need not flow continually. It may sometimes be 
 dry. It must flow in a definite channel having a bed, sides or 
 banks, and usually discharges itself into some other stream or 
 body of water. ' ' 
 
 It will be observed that the water supply need not be sufficient 
 to cause the stream to flow all the time. It must flow habitually, 
 though not necessarily uninterruptedly. There must be a definite 
 channel, that is, a bed or place where the water passes along over
 
 398 AMERICAN ELEMENTARY LAW. 
 
 the same depression or lower surface, which is bounded or limited 
 by ascertained and definite sides or banks. When these facts con- 
 cur, the water thus confined and seeking a regular outlet is 
 a water course or stream. Water standing in a definite depres- 
 sion, and not flowing, is not a stream. Water flowing in a defined 
 channel is not necessarily a stream, as surface water after a rain. 
 Sometimes there is a well defined channel, but no water, except 
 immediately after rains ; again, there are channels down which 
 water flows frequently, but not continuously. How often is it to 
 run, how long during each year? This must be answered from 
 facts in each case. If there be a well defined channel down which 
 water passes habitually it is enough, though it may sometimes be 
 dry. If, however, it is usually dry, though water flows in it occa- 
 sionally, it is not a stream. 
 
 The water passing in these streams is not owned by anyone. 
 The proprietors of the land crossed by or bordering on the stream 
 have legal rights, in its use, but have no property in the water 
 itself. These rights, like all others, have their correlative duties, 
 and the proprietors of the several estates must have regard at all 
 times to the obligations under which each rests to the other. All 
 persons who own land along a stream are co-proprietors in its use. 
 
 These uses are of two kinds : domestic or natural on the one 
 hand, and artificial or commercial on the other. 
 
 As to the first, the right of use is very extensive, and the pro- 
 prietor who first gets access to the water lawfully, may completely 
 exhaust it, in these natural or domestic uses, without incurring 
 liability in so doing-. 
 
 It is not so with the second, artificial or commercial use. Here 
 no one has an exclusive privilege. The upper proprietor can use 
 it for these purposes, provided, after his use, he permit it to leave 
 his land at the same place, in the same quantity and of the same 
 quality, that it would have done but for such use. It is apparent 
 that the rights and liabilities of the parties vary greatly, as the 
 use made of it is of the one or the other class. It therefore be- 
 comes important to understand what uses fall in each class. 
 
 Domestic or natural purposes embrace drinking purposes for 
 one's family and his own domestic animals, culinary purposes and 
 washing, and all the uses about one's premises necessary to sus- 
 tain life.
 
 PROPERTY. 399 
 
 Artificial and commercial uses are all those in which water is 
 not used directly to sustain life or give comfort, but as a means of 
 pecuniary profit, or indirect means of comfort. This seems to be 
 the line of separation. 
 
 It works out different results in different localities. It seems 
 to be considered, everywhere, that the uses mentioned under the 
 head of domestic purposes are such, and that for any of these pur- 
 poses the upper proprietor, or one first getting lawful access to 
 the water, may use it, to the entire exhaustion of the supply. 
 
 In some of the Northeastern States running mills and factories 
 seem to be necessary to support life, and therefore are called 
 domestic, or natural, and irrigation there is called commercial, or 
 artificial; while in the Northwest the holdings are just the 
 reverse, and running factories and mills are held to be artificial 
 uses and irrigation a natural use. 
 
 Conveyances. 
 
 Form. — It is a settled rule of law in the United States that 
 transfers of land, or any interest or estate in it for any consider- 
 able length of time, must be in writing, and signed by the party 
 attempting to convey. In many States, the instrument, to be a 
 complete deed, must be signed in the presence of two witnesses, or 
 acknowledged before some duly authorized officer; and, in some 
 States, it must be sealed. The deed should clearly identify the 
 parties to it, both grantor and grantee, should accurately and cor- 
 rectly describe the property conveyed, and the nature and extent 
 of the estate, or interest, transferred. 
 
 The length of time for which land may be leased by parol dif- 
 fers in the different States. There are differences, also, as to 
 whether contracts or covenants incident to the sale of land, such as 
 warranty of title, etc., should be in writing. 
 
 It is an agreed rule of construction of grants and deeds that a 
 deed calling for a public way or a nonnavigable stream conveys 
 title to the center of the way or stream. This title is subject, in 
 such case, to the easement in use of the way and passage of the 
 water. 
 
 Registration. — The same public policy that makes it desirable 
 that transfers of land should be in writing leads to some system 
 of giving permanent and public evidence of the existence and 
 nature of these transfers. So, all the American States have
 
 400 AMERICAN ELEMENTARY LAW. 
 
 adopted some method of public registration of land titles. These 
 differ in detail, but, in substance, are the same. 
 
 The plan, in general terms, is as follows: A public officer 
 is provided in each county, who keeps his office in some convenient 
 place, usually the county court house, who is required to receive, 
 file, and copy into a public record, all instruments conveying any 
 estate or interest in land within his county, which have been exe- 
 cuted in the manner required by law. He must keep indices to 
 these records, both direct and cross. After recording the original 
 instrument, he gives it back to the owner. The time when the in- 
 strument becomes public record, under some statutes, is when it 
 is filed ; under others, when it has been indexed. As soon as it is 
 recorded, all persons are charged with notice of its existence and 
 contents, so far as it effects a transfer of or encumbrance on the 
 land, and they must thereafter deal with that land as if they had 
 knowledge of the rights created by such instrument. 
 
 Innocent Purchasers. — As the law, by providing for the regis- 
 tration of titles to land and making the record notice of the rights 
 of all persons holding under properly recorded instruments, has 
 put it in the power of every man to notify all others of his rights in 
 any land in which he may have claim, evidenced by any convey- 
 ance, it exacts of every one, having any such interest, the duty of 
 giving notice of it, by putting his evidence of right upon record ; 
 and, if he does not, he subordinates his rights to the rights of in- 
 nocent persons who, in good faith, have acquired rights in the 
 land for value, without any actual notice of the rights of him or 
 those who have failed to make the proper record. This is known 
 as the doclrme of innocent purchasers. 
 
 Four things must concur to constitute one an innocent pur- 
 chaser : 
 
 0) The interest against which the claim is set up must be of 
 such nature as to come within the registration laws ; that is, such 
 an one as could lawfully be placed upon record, or of such nature 
 that it could have been put in such form. 
 
 (2) The subsequent purchaser must not have known of the 
 prior right he is now seeking to overthrow, and the facts must not 
 be such as to have put him upon inquiry. 
 
 (3) He must have acted in good faith in acquiring his interest. 
 
 (4) He must have paid value for his claim.
 
 PROPERTY. 401 
 
 Violation of Rights in Land. 
 
 Eights in land may be invaded by unlawful entry or trespass 
 upon it, or by committing any act injurious to the land, as by re- 
 moving its lateral support ; or by commiting waste upon it ; or by 
 invading it by noxious gases, bad odors, noises, etc. ; or by divert- 
 ing from it water to which it is entitled ; or by any act or omission 
 unlawful in itself or its direct consequences, injuriously affecting 
 such right ; or by conduct unlawfully affecting the title. Whether 
 or not any particular act injurious to a particular tract of land, 
 or something pertaining thereto, is a tort as to any particular 
 person, of course depends on such person 's relation to the land. 
 
 Unless the owner of the fee has parted with some less estate in 
 his land to another, he is entitled to its exclusive use, enjoyment 
 and possession, and can maintain an action for any unlawful act 
 or omission injuriously affecting him in regard thereto. 
 
 If he has parted with some less estate, the nature and extent of 
 such estate, and the nature of the injury, together, determine 
 whether the cause of action is in him, or the party having the less 
 estate. 
 
 Controversies frequently arise between the owner of the fee and 
 those having a less estate, as to their respective rights and inter- 
 ests. Usually these estates are created by contract, and the re- 
 spective rights thereunder are matters of Contract Law. There 
 are, however, some questions as to legal rights of landlord and 
 tenant, arising in eases in which the contract is silent, which are 
 properly questions of Tort Law. 
 
 One of the most ordinary incidents and rights of ownership is 
 possession, and any unlawful invasion of this right gives a cause 
 of action to him whose right is disturbed. 
 
 The same wrongful act may frequently result in injury to sev- 
 eral persons. Thus, if A owns a tract of land with an orchard on 
 it, and rents the land and the orchard to B for a year, and B goes 
 into possession, here the fruit from the trees would go to B for a 
 year, but the interest and title in the trees would be in A, subject 
 to B 's present right. C enters and cuts down the trees. This act 
 deprives B of his growing fruit and A of his trees, and each 
 would have a cause of action. And so in innumerable cases, which 
 will readily occur to you. 
 26
 
 402 AMERICAN ELEMENTARY LAW. 
 
 Facts Proving Title. 
 
 The rule is ordinarily stated, he who sues for a trespass upon 
 and injury to, or the withholding from him of land must deraign 
 title from the sovereignty of the soil and recover on the strength 
 of his own title. This is true, when properly understood ; but it 
 is misleadng, without explanation. One might well understand 
 from it that the plaintiff in every suit would be compelled to trace 
 his title back to the State. 
 
 This is unquestionably the general rule, and the plaintiff must 
 always be ready to do this, unless he clearly comes under one or 
 the other of the following exceptions. 
 
 (1) If he and the defendant both claim title to the land, and 
 their titles have a common source; that is, if at some time, since 
 the State parted with its title, it was held by some one un- 
 der whom both plaintiff and defendant claim to own, then he need 
 go no further back in the chain of title than the common source : 
 as, if A once owned the land,, and sold it to B, and subsequently- 
 sold it to C, B and C, and all parties claiming under them, are 
 said to deraign title from a common source, A. In such a case, in 
 a controversy between B and C as to this land, the plaintiff need 
 not do more than show that both claim under A, and that his title 
 from A is superior to that claimed by the other party. This he 
 may do by introducing copies of the deeds of defendant, or the 
 deeds themselves, if he can produce them ; and such deeds are not 
 to be taken as showing title in the defendant, unless the defend- 
 ant shall himself put them in evidence. 
 
 (2) Where plaintiff's title has been acquired under the statute 
 of limitations, either by himself or by some one whose estate and 
 right he has. he can recover without going back of his possession, 
 except so far as to show the facts necessary to sustain his claim 
 under the particular statute relied on by him. 
 
 (3) "When the plaintiff was in actual possession at the time the 
 defendant entered; such prior possession will entitle him to re- 
 cover against a naked trespasser. Of course, if the party disturb- 
 ing the possession is the owner, or holds under him, he can, by 
 showing this, defeat the right based simply on prior possession 
 unaided by other right or title. 
 
 This doctrine is limited to the actual possession, and does not 
 include "constructive" possession, in the strictest use of the term.
 
 PROPERTY. 403 
 
 Indeed, this doctrine could not be practically invoked, for such 
 possession is but an incident of ownership, and for one to show 
 himself in such possession he must show his title and prove it. 
 
 The party complaining of an alleged violation of his rights in 
 real estate, and who proves prior possession only, in support of 
 his claim, is subject to be defeated by proof of the fact that the 
 party complained against is the true owner, or his representative. 
 In most instances, such right may also be defeated by proving, 
 affirmatively, that the legal title to the land is in a third party; 
 proof of an outstanding equity is, however, not usually sufficient 
 for such purpose.
 
 CHAPTER XXL 
 
 PROPERTY (CONTD.) 
 PERSONAL PROPERTY. 
 
 We have already defined both real and personal property. It 
 may be well, however, to repeat that everything which is transient 
 or movable, no matter what the nature of the estate in it may be, 
 and also every interest or estate in things immovable and per- 
 manent which is not heritable or which has a definite time to ex- 
 pire, is personal property. 
 
 Some personal property is corporeal and much is incorporeal. 
 The law deals with each after its kind prescribing for each class 
 such rules as will work the greatest justice in the greatest number 
 of cases. 
 
 To attempt to give the details of these different provisions 
 would be to cover a very large part of the law. 
 
 The methods by which property may be acquired have been dis- 
 cussed at some length. Practically all these methods apply 
 to personal property according to its kind. 
 
 As personal property lacks the quality of permanency and 
 ordinarily is of a kind that is subject to a great many transfers, 
 the general rule is that title to it may be shown by parol proof 
 and that written instruments are not required as evidence of 
 transfer. This rule is not universal. Its most common exception 
 is in the case of leasehold interests in land for periods longer than 
 one year. In some kinds of commercial paper, particularly that 
 payable to order, the highest and most beneficial title can only be 
 passed in writing. 
 
 The distinction between general and special property in things 
 is recognized as well in the law of personal as of real things. That 
 is, one may be the general owner of a thing, his estate including 
 all five of the elements of ownership, or he may have some less 
 estate limited in some respect as to one or more of these elements. 
 
 "While it would not be profitable to consider all the different
 
 PROPERTY. 405 
 
 methods by which title to personal property may be acquired, 
 there are a few so important as to demand attention. 
 Transfers of Title. 
 
 Sales. — A sale is the transfer of personal property for a price 
 in money. As sales are species of contracts they involve genuine- 
 ness of assent, competency of parties, consideration, legality of 
 purpose, and form. 
 
 In addition to these requirements which are essential to all 
 contracts it is necessary that there be some thing the title to which 
 is passed by the sale. This thing must be in existence, definite 
 and ascertained. 
 
 Existence of the thing may be actual or potential. Actual 
 existence needs no explanation. In the law of sales the product 
 or increase of things actually in existence and then belonging to 
 the seller which will come into being according to natural laws 
 and the usual course of dealing with the thing are regarded as 
 existing potentially or as in potential existence. 
 
 Thus, if a man owns a flock of sheep which have just been 
 sheared the sheep are in actual being and are, of course, proper 
 subject matter of sale. In the natural order of things these sheep 
 will continue to grow wool which will be ready for shearing 
 within a few months. This wool is in potential existence and may 
 be sold by the owner of the sheep. Or, if a man owns a farm 
 which he is cultivating, the matured crops are not in existence at 
 the time of planting but as planting and cultivation in the ordi- 
 nary course of nature result in matured crops, the matured crop 
 is regarded in law as in potential existence. 
 
 Not only must the thing to be regarded in potential existence be 
 an actual product of some thing then in actual existence and cap- 
 able of definite ascertainment but the thing actually existing 
 must, at the time of the sale, belong to the seller. 
 
 Thus, while A may sell the wool still to be grown on a flock of 
 sheep belonging to him, he cannot sell the wool to be grown on a 
 flock of sheep owned by B even though he intends to purchase the 
 sheep. To allow this doubles the uncertainty. First, there is the 
 uncertainty as to the growth of the wool. The flock of sheep may 
 die or become diseased and hence produce no wool. Second, 
 there is the uncertainty of A being able to buy the sheep from B. 
 Hence the law declines to take this dmiblo risk.
 
 406 AMERICAN ELEMENTARY LAW. 
 
 Not only must the thing sold be in existence, as just explained, 
 but it must be definitely ascertained and identified. If a man had 
 a thousand bushels of corn in the crib he may sell it all or he may 
 sell any undivided interest or share in it, as one third or one half, 
 and title will pass. But he cannot sell fifty bushels and pass title 
 to any particular fifty bushels until both parties, or one of them 
 under the authority of both, separates the particular fifty bushels 
 which is sold from the general mass of corn in the crib. 
 
 To this rule there is an exception made in the case of grain in 
 public elevators and of oil in reservoirs. The reason for these ex- 
 ceptions is a matter of business convenience, rather than legal 
 principle. 
 
 To constitute the transfer a sale it must be for a price in money. 
 This price may be paid in cash, or part cash and part at some 
 later date, or all at a later date. The time of payment is imma- 
 terial, but the consideration must be money. 
 
 The general rule at law is that the seller of personal property 
 can convey no better title than he has. In other words, the doc- 
 trine of innocent purchaser is not generally applicable in trans- 
 fers of personal property. 
 
 To this rule there are a few exceptions. The first relates to ne- 
 gotiable instruments; the second, to the sale of property by one 
 who has a prima facie, though defeasible, title, as where one has 
 procured the title to the property by fraud. The third is 
 where a person, though not the owner, has all the indicia of own- 
 ership when he holds such evidence through the wrongful conduct 
 of the real owner. 
 
 The seller impliedly warrants the title to the thing sold but 
 does not ordinarily warrant its quality or soundness. The cases 
 in which the law implies a warranty of the quality or fitness of 
 the thing are those in which it is the legal duty of the seller to 
 disclose defects. These, and the principles governing them, have 
 been discussed under the general head of Fraud and the special 
 head of Non-disclosure. 
 
 Sales and contracts to sell are subject to the general rules of 
 law as to legality of purpose. This has been discussed under the 
 head of Rights against Particular Persons and need not be 
 repeated further than to say that if the agreement under consid-
 
 PROPERTY. 407 
 
 ation be performed so far as to transfer the title, the law will not 
 open up the matter and restore the title to the original seller be- 
 cause the sale was made for an unlawful purpose. But if the ille- 
 gality of purpose be known to and acquiesced in by the seller, or 
 if the offense contemplated be a heinous one, known to the seller, 
 whether he acquiesce in it or not, he cannot compel the purchaser 
 to pay any unpaid portion of the price. If the agreement be one 
 to sell and not a consummated sale, the enforcement of its per- 
 formance will be subject to the general rules heretofore stated. 
 
 Barter or Exchange. — A barter or exchange is the transfer of 
 the title in one thing in consideration of the transfer of the title 
 in another thing. 
 
 It differs from a sale only as to the consideration. In sales this 
 is always a price in money and in barter some thing of value other 
 than money or a promise to pay money by the seller. 
 
 In all other respects the rules governing sales are applicable to 
 barter. 
 
 Gifts. — A gift is the transfer of the title to a thing without con- 
 sideration. As heretofore seen promises to give are non-enforce- 
 able but when the promise is performed and the thing actually 
 delivered to the donee title passes and the donor cannot thereafter 
 lawfully reclaim or retake it. 
 
 If the donor, at the time he made the gift, was insolvent, or if 
 by making the gift he makes himself insolvent, his creditors can 
 follow the thing given into the hands of the donee and sell it or 
 enough of it to satisfy their just claims. 
 
 Bailments. — The most usual kind of special ownership in per- 
 sonal property is bailment. A bailment is the possession of per- 
 sonal property belonging to another for the fulfillment of a cer- 
 tain purpose or purposes with respect thereto. 
 
 To be the subject of bailment the property must be corporeal, 
 though corporeal evidences of incorporeal rights, such as promis- 
 sory notes, certificates of stock, may be bailed. 
 
 The purposes for which bailments may be made are as various 
 as the exigencies of business and social life. 
 
 Bailments usually arise from agreement of parties though 
 sometimes they grow out of the wrongful act of the bailee in tak- 
 ing possession of property belonging to another and dealing with 
 it as his own. In these latter cases it is never legally obligatory on
 
 408 AMERICAN ELEMENTARY LAW. 
 
 the owner to treat the wrongdoer as a bailee. He is simply per- 
 mitted to do so if he finds it to his advantage. 
 
 Bailments are usually divided into three general classes: 
 
 (1) Those for the sole benefit of the bailor. 
 
 (2) Those for the sole benefit of the bailee. 
 
 (3) Those for the mutual benefit of both parties. 
 
 In the first class of cases, Bailments solely for the benefit of the 
 bailor, the law requires the bailee to use only a slight degree of 
 care. These are usually cases in which the owner of property in- 
 duces another to take possession of it and keep it for him without 
 any compensation. As the bailee gets no reward for his trouble 
 and sometimes not even for his expense the law does not regard it 
 as just to exact of him even as much care as a man ordinarily ex- 
 ercises in his own business affairs. 
 
 In the second class of cases, Bailments solely for the benefit of 
 the bailee, the law requires of the bailee a high degree of care. 
 As the bailee is getting the benefit of the possession and use of the 
 property of another solely for his own advantage without paying 
 the owner anything for it, the law regards it just to require of 
 him a higher degree of care than is ordinarily exercised by a man 
 in the conduct of his own affairs. 
 
 In the third class of cases, Bailments for the mutual benefit of 
 both parties, the law looks upon the bailment as an ordinary busi- 
 ness transaction and requires ordinary care by the bailee. 
 
 Every case of bailment must come in one or the other of these 
 classes. These general doctrines run through and determine the 
 whole body of the law regulating the duties of a person in pos- 
 session of personal property belonging to another when the trans- 
 action is purely private. In some classes of bailments the public, 
 as well as the bailor and bailee are interested. In such cases the 
 rights of the parties are affected by the public nature of the busi- 
 ness and are governed by rules peculiarly adapted to the special 
 facts and conditions. The most frequent illustrations of this 
 kind of bailment occur in the business of common carriers and 
 inn-keepers. 
 
 Incorporeal Personal Property. 
 
 There are a number of incorporeal things which are personal 
 property. Some of them are of very great value. The most im-
 
 PROPERTY. 409 
 
 portant of these are choses in action, patent rights, copy-rights, 
 good will, and trade marks. 
 
 Chose in Action. — A chose in action is a legally enforceable 
 claim for money which the creditor has no means of collecting ex- 
 cept by suit. 
 
 It is immaterial whether the claim arise from a contract or for 
 breach of contract or from a tort so long as it is a right to demand 
 and receive money recognized by law and enforceable by suit. 
 
 At Common Law choses in action were not assignable. The 
 reasons given usually were the personal nature of contracts in the 
 earlier view of the law, and that to permit such assignments 
 would encourage litigation. 
 
 The first serious modification of this doctrine resulted from the 
 recognition, in a somewhat modified form, of the law merchant, of 
 which negotiability of certain promises to pay was one of the most 
 important doctrines. The next step was to recognize assignments 
 of Common Law choses in action to such an extent that payment 
 by the debtor to the assignee would discharge the debt. Next 
 came the practice of permitting the assignee to institute and 
 maintain suits on such choses in action in the name of the 
 assignor, but to the use of the assignee. This was later followed 
 by recognizing the right of the assignee of choses in action arising 
 out of contract to sue in his own name. 
 
 The prevailing rule now is that choses in action consisting of 
 contracts to pay money, or legal demands for money based upon 
 breach of contract, and legal demands for money growing out of 
 torts in violation of property rights may be assigned, but that 
 claims for damage for torts in violation of personal rights are 
 nonassignable. 
 
 This change in the law has, in some instances, been effected by 
 statute and in others by judicial action. The statutes in some 
 States go beyond the rules stated above and permit the assign- 
 ment of all choses in action whatsoever. 
 
 Patents. — When a person invents some new and useful appli- 
 ance or machine, or discovers some new process by which to make 
 some useful article, he confers a benefit upon the public. In 
 recognition of this fact, and as an encouragement to such enter- 
 prise, the law grants or secures to the inventor, or discoverer, a 
 monopoly in the production of the thing, or use of the process, for
 
 410 AMERICAN ELEMENTARY LAW. 
 
 a reasonable time. There is no recognition of this right to mo- 
 nopoly at Common Law. The Federal Constitution confers upon 
 the United States Government the exclusive power to deal with 
 such rights. So we have all patent rights emanating from and 
 regulated by that government, and all suits for their viola- 
 tion must be brought in the Federal courts. The acts of Congress 
 on this subject are quite voluminous and detailed. 
 
 Two facts must exist to make an invention or process patent- 
 able; (1) It must be new. (2) It must be useful. The first is re- 
 quired because only he who is first in originating the idea is 
 thought to be entitled to protection, and the second because the 
 public is not interested in the matter unless it be of some practi- 
 cal benefit. If these two facts exists, and are shown, the inven- 
 tor or discoverer may, by complying with all of the legal require- 
 ments on the subject, obtain from the Federal Government, 
 through its proper officers, a certificate of these facts, carrying 
 with it an exclusive right or monopoly in the sale of the thing, or 
 the use of the process, for the time specified. Any other person 
 making and selling the thing, or using the process, will be liable 
 to the patentee for damages, and. in many instances, to further 
 penalties. As these rights do not exist except under the acts of 
 Congress, any one who makes his invention or process public, 
 without attempting to comply with those acts, is held to waive 
 his preferential rights. This waiver is, however, in the behalf of 
 the public, and not some other individual; so no one else justly 
 obtain a patent giving him exclusive rights in the premises, but 
 any and all persons would be equally entitled to enjoy and par- 
 ticipate in the benefits. 
 
 Copyrights. — Copyrights are the rights which an author or 
 artist has in his literary or artistic productions. These are also 
 exclusively in the jurisdiction of the Federal Government. To a 
 limited extent, they are recognized and protected at Common 
 Law. At Common Law an author or artist was not compelled to 
 make his production public, nor would a limited giving out of the 
 literary matter or display of the work of art be such a publication 
 as would entitle another to use or reproduce it, and any attempt 
 to do so would be unlawful. If, however, the production were 
 once made public, or published generally, the producer lost his
 
 PROPERTY. 411 
 
 monopolistic right in and over the thing, and others could repro- 
 duce it with impunity. 
 
 The protection thus afforded is very inadequate, and has heen 
 supplemented by congressional action. The author or artist must 
 show that he is the real originator of the book, picture, etc., and, 
 if it be a book, must deliver two copies to the Librarian of Con- 
 gress at Washington, D. C, and pay a small fee for a certificate, 
 and his statutory copyright is thereby secured. 
 
 Just what constitutes a violation of this monopolistic right is 
 frequently difficult to decide. The right covers the manner 
 of presentation of the idea, both in the organization of the sub- 
 ject, the language used, and the illustrations employed. The 
 fundamental truth contained in the book or picture no man can 
 monopolize. The truth is free, and must ever remain so. The 
 manner of expressing the truth is personal and individual, and is 
 properly a subject matter of individual ownership, and is justly 
 protected by the law. The application of these general doctrines 
 is difficult, and involves matters of technique and detail outside 
 our present purpose. 
 
 Good Will. — This is a phrase having a technical meaning. 
 Mr. Bouvier defines it as ''the benefit which arises from the 
 establishment of particular trades or occupations. The ad- 
 vantage or benefit which is acquired by an establishment, be- 
 yond the mere value of the capital, stocks, funds, or prop- 
 erty employed therein, in consequence of the general public pat- 
 ronage and encouragement which it receives from constant or 
 habitual customers, on account of its local position or common 
 celebrity, or reputation for skill or influence, or from other acci- 
 dental circumstances or necessities, or even from ancient partial- 
 ities or prejudices." It is the reasonable expectation of continued 
 patronage in the business. It is due largely to the business repu- 
 tation of an establishment, and includes the trade or patronage 
 drawn by it. It is frequently quite a valuable asset. 
 
 Trade Marks. — Closely connected with Good Will are Trade 
 Marks. A trade mark is some symbol or emblem which a manu- 
 facturer or dealer in goods, wares, or merchandise puts on or at- 
 taches, in some way, to commodities put upon the market, to indi- 
 cate that they are manufactured or sold by him. The purpose is 
 to identify the goods and pledge the reputation of the user of the
 
 412 AMERICAN ELEMENTARY LAW. 
 
 trade mark that they are what they purport to be. It is this that 
 gives them value. This value is often very great. An article with 
 an established reputation will often be in demand when a similar 
 article, probably just as good, but which is unknown, will scarcely 
 be called for by customers. Sometimes certain dealers have such 
 reputation that the public will readily buy any article recom- 
 mended or manufacteured by them. Either of these conditions 
 adds largely to the selling qualities of the article, and when they 
 are combined, as is frequently the case, the advantage is, of 
 course, greater. 
 
 Trade marks are means of identifying commodities put upon the 
 market and of showing by whom they are made and sold. When 
 an article thus indicated has an established reputation, the temp- 
 tation to others to adopt the marks by which it is known, and 
 use them to increase the sales of similar commodities dealt in by 
 them, is very great. The injurious effects upon the owner of 
 the trade mark are of two kinds: (1) His trade is directly de- 
 creased by substituting the spurious article for the genuine; 
 (2) the substitute may be greatly inferior to his, and so the repu- 
 tation he has established be injured. It is, therefore important 
 that rights in trade marks and the means for their legal protec- 
 tion be understood. Unlike patents and copyrights, they are 
 Common Law rights, and are not peculiarly within the jurisdic- 
 tion of the Federal Government. 
 
 These rules may be somewhat briefly summarized as follows: 
 "When a person adopts a trade mark, consisting of symbols and 
 other indicia, descriptive of his manufactured articles or com- 
 modities, and uses it in his business, he thereby acquires a right 
 to the exclusive use of all arbitrary symbols so adopted, and also 
 of any arbitrary combination of words or any new and arbitrary 
 application of any common word by which he gives to it an arbi- 
 trary meaning in that particular combination ; but he does not ac- 
 quire the right to an exclusive use of a common word descriptive 
 of the commodity or the purposes for which it can be used. All 
 persons have the right to use common words in their common 
 meanings, and no one can acquire a monopoly in such use. 
 
 The right stated above depends on the adoption and use of the 
 trade mark, and not on any patent or copyright legislation. If 
 the commodity be such that it comes within the patent laws, or
 
 PROPERTY. 413 
 
 the symbols or indicia are such that they can be copyrighted, 
 rights may also be acquired under such legislation ; but trade 
 mark rights, as such, are recognized and protected independently 
 of these statutes. 
 
 When the right to a trade mark exists it may be infringed in 
 three ways : 
 
 (1) By a fac-simile reproduction. 
 
 (2) By such an imitation, though not a reproduction, as is rea- 
 sonably calculated to deceive the public into the belief that the 
 article indicated by and sold under the imitation is the same as 
 that indicated by and sold under the genuine trade mark. In de- 
 termining this question, the entire trade mark and label, and size 
 and appearance of the package as exposed for sale, are to be con- 
 sidered ; the similarity does not have to be so great as to render 
 the difference incapable of detection except by putting the two in 
 proximity, but it is sufficient if it is so close as reasonably to be 
 calculated to deceive the purchasing public in the open market. 
 
 Under the circumstances set out in this and the preceding 
 paragraph, no fraudulent purpose or design to imitate is neces- 
 sary to constitute an infringement. 
 
 (3) Infringement may be effected by the purposed and de- 
 signed imitation of a trade mark, with the design to avail of the 
 reputation of the article sold under the genuine trade mark, and 
 put the substituted article on the market and induce purchasers 
 to buy it in the belief that it is the article indicated by the genu- 
 ine trade mark. In case of such willful wrong, there need not be 
 such imitation as is calculated to deceive the public, but only such 
 as might possibly deceive. The remedies for infringement are 
 damages for loss already sustained by reason of it, and injunction 
 against continuation of the wrong. 
 
 TRANSMISSION OF PROPERTY ON THE DEATH OP THE OWNER. 
 
 Ownership of property, according to the American idea, carries 
 with it not only the right of dominion over the thing owned, but 
 also the power of disposition after death. This power of deter- 
 mining who shall succeed to the ownership of things owned, 
 after the death of the present owner, is exercised by making a 
 will, or testament, as it is sometimes called. The law regulates this 
 power, both in the manner of its exercise, and the manner of es-
 
 414 AMERICAN ELEMENTARY LAW. 
 
 tablishment and proof of the will and, in some respects, as to its 
 effects. These regulations differ in the several States, though 
 their main features are the same. 
 
 Wills. 
 
 Usually any person capable in law of disposing of property 
 during life may dispose of it by will, and very frequently, if not 
 universally, this power is extended so as to include married 
 women, and sometimes married men who are minors. The for- 
 malities with which wills are to be executed are not uniform, but 
 they usually require that the will be written and executed in the 
 presence of two or more witnesses. Sometimes personal property 
 may be disposed of by parol will, but this is not the rule. As to 
 the effect of the will, the rule is that the property passes as pro- 
 vided in the will, but it is always subject to the just claims of the 
 creditors of the deceased, and frequently to the right of use by 
 surviving members of the family. Death does not pay a man's 
 debts, and the property he leaves is, primarily, to be appropriated 
 to their payment, and the same general policy which prohibits one 
 giving away property needed to pay his debts makes his disposi- 
 tion of it by will subject to the same limitations. So if a piece of 
 property be willed to a person, with all the legal formalities, still 
 he will receive no beneficial interest from it if there is not enough 
 other property in the estate to pay the debts of the testator. 
 There are, also, some family rights in the property of the deceased 
 which are superior to rights created by will. The most striking 
 example of this is in the homestead laws. The husband can not 
 sell the homestead during his life without the joinder of the wif e ; 
 so, if he wills it to some one else, the title thus acquired would be 
 subject to the continued use of the property by the family, as long 
 as they so desire, or as long as the family shall continue to exist. 
 Subject, however, to this right, the property would go to the de- 
 visee in the will, and he would be entitled to its use and enjoy- 
 ment after the homestead terminated. 
 
 Inheritance. 
 
 If the owner dies without making a will, the property passes to 
 his heirs, under the law of the State in which it is situated. Gen- 
 erally, heirship is made dependent upon nearness of relationship 
 to the deceased. The distribution of the property is fixed by the
 
 PROPERTY. 415 
 
 law applicable to the kind of property in question. Personal 
 property is usually governed by the law of the country in which 
 the deceased had his permanent residence; land, by that in 
 which it is situated. 
 
 Laws of inheritance are within the will of the legislative de- 
 partment of the government. No one has vested rights under 
 them prior to the death of the ancestor; so the legislature can 
 make such disposition of the residue of estates after the debts are 
 paid as it sees fit, and can put such limitations and attach such 
 incidents to inheritance as it chooses, such regulations to be oper- 
 ative as to the estates of all persons who die after their enactment. 
 They can not be made retroactive, and destroy rights under laws 
 in force at the time of prior deaths. 
 
 Administration. 
 
 The property of a deceased person, if there be a will, is taken 
 charge of by the person appointed in the will for the purpose, 
 called an executor, or by suitable persons appointed by the pro- 
 bate courts. Sometimes the will provides that the executor shall 
 manage the estate free from control by the courts. In such a 
 case, this provision is respected so long as the executor is conduct- 
 ing the affairs of the estate properly, in accordance with the will 
 and the law. If he does not, he will be removed, and the estate 
 will be taken charge of by the probate court, through some suita- 
 ble person, who will administer it in conformity with the will and 
 the law. If no such provision is in the will, the executor is under 
 the general supervision and control of the probate court, and 
 carries out the provisions of the will as construed and enforced 
 by the court. If there is no will, the probate court selects some 
 discreet and proper person and takes charge and closes up the es- 
 tate through him. The administration of an estate includes tak- 
 ing it into possession, managing and controlling it until all just 
 claims aganst it are proved up and satisfied, and then distributing 
 the residue, if any, among the devisees, if there be a will, or 
 among the heirs, if there be no will. This is a most important 
 duty, and can not be too carefully performed. If there is no will, 
 and no heirs are known, the residue of the estate is placed in the 
 treasury of the State, to await claims of persons who may present 
 themselves as heirs within a specified time; if no one comes for- 
 ward and establishes a claim within that time, it goes to the State.
 
 CHAPTER XXII. 
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY APPLIED TO PUBLIC USES. 
 
 Matters Purely Public. — The truth expressed in the ancient 
 maxim that public safety is the supreme law is probably the basis 
 of all organized government. In the United States where all gov- 
 ernments are organized by the sovereign people through written 
 instruments called Constitutions, these instruments are at once 
 the sources of and limitations upon governmental authority. They 
 are the direct expressions of the sovereign will and their man- 
 dates are binding upon the government and all governmental 
 agencies created thereby as well as upon private individuals. In 
 any particular State, therefore, the supreme law as above denned 
 is limited by all pertinent constitutional provisions and the gov- 
 ernment cannot lawfully interfere with the individual contrary to 
 the constitutional provisions even though it might be demonstra- 
 ble that such interference would subserve the public good. Lim- 
 itations of this kind, so far as the States are concerned, are found 
 in both the Constitution of the United States and of the particu- 
 lar State. 
 
 The Federal Constitution stands upon a different basis. It is, 
 strictly speaking, a creative instrument. The government brought 
 into being thereby has such powers, and such powers only, as are 
 conferred upon it by that instrument. Still, the people of the 
 United States insisted upon incorporating in the original Consti- 
 tution and in numerous amendments thereto positive restrictions 
 upon the exercise of governmental power. 
 
 Notwithstanding these facts, there is much authority in the 
 Federal and State governments, particularly the latter, for the 
 just subordination of private interest to the public good. In what 
 respects and to what extent and by what means this should be ac- 
 complished are often matters of violent social and political dis- 
 cussion. And the end is not yet.
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 417 
 
 There are certain purposes so essentially public that there is no 
 disagreement as to the government's right, or even duty, to ac- 
 complish them through public agencies. Such as the enactment 
 of law, the administration of justice, and other similar activities. 
 
 PUBLIC UTILITIES. 
 
 There are certain other public duties essential to our present 
 social conditions, which we are accustomed to have performed, in 
 a great measure, by private individuals. Such as the maintain- 
 ance of railroads and telegraph and telephone companies. The 
 interest of the public in these enterprises, in the safety and effi- 
 ciency of the services rendered by those conducting them and in 
 the charges made therefor are so clearly matters of public concern 
 that they have passed from the field of discussion. 
 
 There are other services such as supplying water, light, and 
 sewers in thickly settled communities, which are so closely con- 
 nected with the public convenience, health and safety, that there 
 is no room for doubt as to their public nature. 
 
 Such enterprises are often conducted by public and often by 
 private means. All of them, viz., railroads, telegraphs, telephones, 
 light plants, water plants, sewers, and others of similar nature, 
 whether operated by public or private means are clearly public 
 utilities and the law is justified in dealing with them as such. 
 
 When such enterprises are carried on at the public expense, 
 through public agents there can be no doubt of the State's right 
 to supervise and control them in any way it sees fit, so long as it 
 does not misappropriate public funds or conduct the business in 
 such manner as to interfere with the legal rights of individuals. 
 
 When such enterprises are undertaken by private persons their 
 public nature subjects them to reasonable and proper regulation 
 and supervision by the State. This is true whether the parties en- 
 gaged in the enterprise have been granted special privileges or not. 
 But the doctrine is particularly applicable in those cases in which, 
 owing to the public nature of the business, the parties engaged 
 therein have had public concessions made them or special privi- 
 leges and authority conferred upon them. 
 
 When these enterprises are conducted by private persons, 
 whether individual or corporate, the control exercised over them 
 Bhould always be reasonable and just both to the public and to 
 27
 
 418 AMERICAN ELEMENTARY LAW. 
 
 the owners. The law should not lean to the public and so impose 
 undue burden upon the owners of the property ; it should not lean 
 to the owners and so permit undue burdens to be placed upon the 
 public. 
 
 Extent of Governmental Control. 
 
 The respects in which this special right of control exists are : 
 
 (1) The right of supervision and inspection. This right ex- 
 tends to the whole plant, covering premises, appliances, and op- 
 eratives. 
 
 (2) The reasonable regulation of the manner of conducting the 
 business. This extends to every department of the operation in- 
 efficiency in which would result in hurt to the public. 
 
 (3) The regulation of charges for services rendered. This 
 right to regulate covers both reasonableness and uniformity in the 
 charges. 
 
 (4) As incidental to the foregoing powers, the State has the 
 right to control the amount of liability which may be incurred in 
 connection with such businesses and to see that the money 
 or funds received for the business are really applied thereto. 
 
 (5) When the business is carried on by a private corporation, 
 the State creating the corporation or in which it is doing business, 
 has the right to inspect the books, papers and records of the con- 
 cern. This is usally known as the visitorial power of the State. 
 
 Special Privileges. — As all the enterprises of which we have 
 just spoken are public in their nature, it is permissable and cus- 
 tomary to confer upon the parties undertaking to carry them on 
 certain privileges necessary for their efficiency. 
 
 Among the most important of the privileges usually conferred, 
 is the power of eminent domain, under which property may be 
 taken, upon just compensation being made therefor, without the 
 consent of the owner for use in carrying on the public enterprise. 
 It is under this power that railroad companies can compel the sale 
 to them of lands for their right-of-way and depots, telephone and 
 telegraph companies can acquire property over which to erect 
 their lines, and gas and water companies to lay their pipes, etc. 
 
 This power cannot be exercised by any company organized for 
 any of the foregoing purposes unless the State has conferred such 
 power on the class of companies to which the particular one 
 claiming the right belongs ; for, while it is lawful for the State to
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 419 
 
 confer such power, it does not exist in the absence of constitu- 
 tional or legislative grant. 
 
 Persons operating public utilities, such as light plants and tele- 
 phones, and who furnish their patrons with appliances to be 
 used upon their premises, have the right to enter upon the prem- 
 ises at reasonable times and in a proper manner, for the purpose 
 of inspecting and repairing the appliances and, at the expiration 
 of the contract of service, to remove the same. 
 
 All such concerns have the right to make reasonable and uni- 
 form charges for services rendered which may, if they see fit, be 
 collected in advance of rendering the service. 
 
 Duties Due to the Public. — Persons engaged in any enterprise 
 known as a public utility owe to the public and to each individual 
 patron the following duties : 
 
 (1) To render efficient service. 
 
 (2) To render such service promptly. 
 
 (3) To render such service without subjecting the patron or 
 his known rights to unreasonable danger. 
 
 (4) To render such service uniformly and without unjust dis- 
 crimination. 
 
 (5) To charge only reasonable and unifcim rates. 
 
 (6) To treat their patrons with reasonable courtesy. 
 
 These comprehend the duties ordinarily required of persons 
 engaged in such enterprises. In some cases, especially as to com- 
 mon carriers, there are rules of exceptional stringency. These, 
 however, may be regarded as special application of the general 
 doctrines above announced to the details of that particular busi- 
 ness rather than the announcement of additional rules. 
 
 COMMON CARRIERS. 
 
 A common carrier is one who undertakes for value to carry 
 goods or passengers or both for all who apply, over a designated 
 route or within a designated territory, in or upon designated 
 kinds of vehicles. 
 
 The authorities differ as to whether a carrier of passengers 
 should be called a common carrier or a public carrier. This dif- 
 ference grows out of the fact that a passenger cannot be subjected 
 to the dominion of the carrier to the extent and in the manner 
 that freight is, and hence it is contended that as there is no bail- 
 ment, properly speaking, of a passenger the carrier transporting
 
 4120 AMERICAN ELEMENTARY LAW. 
 
 him should be indicated by a different name from that used for 
 one who transports things. 
 
 That there is a difference in the dominion exercised over a per- 
 son and a thing during transportation is undoubtedly true. This 
 difference finds expression or recognition Jn the different rules of 
 law enforced as to carriage of persons and of things. Whether or 
 not it is better to use the one name to designate the carrier in both 
 instances or to use the different names as indicating the legal 
 distinctions, is practically a question of terminology and is not 
 an important one. I prefer the use of the one name as less con- 
 fusing and requiring less repetition. 
 
 A common carrier has a right to designate the route over which 
 he will carry, or the locality in which he will do business. He also 
 may determine whether or not he shall carry passengers or freight 
 or both. He may even restrict his business to the carriage of cer- 
 tain kinds of things. He may limit his business to carriage at fixed 
 intervals or may undertake to carry at any and all hours. 
 
 To state the matter broadly, the carrier may determine for 
 himself the time, place, and extent of his business. But once hav- 
 ing done this he must serve effectively, uniformly and without un- 
 just discrimination, and for reasonable compensation all who seek 
 his services within the limit of the business as fixed by him. 
 
 Duties and Liabilities. — The duties of a common carrier are 
 embraced under the six heads given above as due from all persons 
 supplying any public utility. In some respects the requirements 
 made of the carrier are more strict and exacting than are laid 
 upon others. 
 
 Efficient Service. — The carrier must render efficient service. 
 This rule is enforced according to the nature of the business un- 
 dertaken. It would be manifestly absurd to require of the carrier 
 operating a local delivery wagon the same equipment and service 
 as may be justly demanded of a railroad company. But the prin- 
 ciple is the same. In each case the law requires equipment suffi- 
 cient to render reasonably efficient service to the public within 
 the limits and to the extent the carrier holds himself out as serv- 
 ing the public. 
 
 Considering this duty of efficient service as resting on railroad 
 companies, somewhat in detail, we find that these companies are 
 required :
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 421 
 
 (1) To acquire and maintain proper road beds, depots, stations 
 and terminal facilities. 
 
 (2) To have sufficient rolling stock reasonably safe and con- 
 venient, with which to handle the amount of business which their 
 location and connections ordinarily supply. 
 
 This rolling stock is not required to be of the latest or most im- 
 proved kind, but it must be reasonably adequate for and adapted 
 to the purpose for which it is used. The carrier is not required 
 to keep sufficient rolling stock and equipment to meet exceptional 
 and extraordinary demands, but must provide enough to handle 
 satisfactorily and promptly the amount of business which should 
 reasonably be anticipated. 
 
 (3) To have a reasonably sufficient number of capable and 
 trustworthy operatives. 
 
 This requirement extends to every branch of the service under- 
 taken for Ijie public. It is because of this duty, that the State 
 may require tests as to the competency and fitness of servants, 
 and that a sufficient number be employed, and limit the hours of 
 continuous service which may be required of them. 
 
 (4) To make and enforce reasonable and proper rules for the 
 conduct of the business. 
 
 In a business so extensive and complicated as the operation of 
 a railroad it is impossible to have order, efficiency or safety in the 
 absence of reasonable rules regulating the conduct of all those 
 engaged in carrying out the enterprise. This duty is analogous 
 to that imposed upon the master for the safety of his servants, but 
 as we are dealing with it now, it is a duty due from the common 
 carrier as such to its patrons. 
 
 Prompt Service. — Promptness is one element of efficiency but 
 it is so important a duty in transportation, both of persons and 
 freight that it seems worthy of separate treatment. It is the duty 
 of a railroad company to make ample provision for handling 
 freight and passengers with reasonable expedition. What is rea- 
 sonable expedition in any particular case depends largely on the 
 general business conditions existing at the place where the service 
 is sought, and the special nature of the service demanded. One 
 train a day going in each direction might be reasonably sufficient 
 to handle the passenger traffic of a small community, whereas, 
 equally efficient service for all who desired transportation in a
 
 •122 AMERICAN ELEMENTARY LAW. 
 
 metropolis might require a great many trains a day. The com- 
 pany is required to meet these local conditions. 
 
 Again, promptness in transportation frequently depends on the 
 nature of the commodity transported. In the case of live stock or 
 of ripe fruits, quick delivery is essential to prevent injury to the 
 freight in transit, while a shipment of granite or pig iron might 
 be held indefinitely without hurt to the thing from its inherent 
 qualities. 
 
 All these matters the law takes into account in determining the 
 question of promptness. We may, therefore, say that promptness 
 is a relative term dependent on the nature and extent of the busi- 
 ness as affected by locality and other pertinent facts and the na- 
 ture of the thing shipped. The general rule of Law is, that both 
 passengers and freight, must be carried within a reasonable time 
 considering all the circumstances of the case. 
 
 Safe Service-. — This heading, taken literally, is misleading as 
 applied to most public utilities. Restricted to common carriers it 
 implies a duty greater than that imposed by law as to passengers, 
 and though accurate as a general statement as applied to freight, 
 it is subject to several exceptions. 
 
 The rule of safety as to ordinary public concerns is that they 
 must not injure intentionally and must use reasonable care to 
 prevent injury. 
 
 As to common carriers of passengers the rule against inten- 
 tional hurt has full force, and the rule as to care is made more ex- 
 acting, so as to demand that the carrier use the highest practical 
 degree of care to prevent hurt to the passenger. It is clear that 
 this is not the liability of an insurer. This duty of care applies to 
 premises, appliances, and servants and in some instances goes 
 even beyond these and requires protection against wrongs com- 
 mitted on its premises by outside parties not in the employ of the 
 carrier. 
 
 According to a large number of authorities, amounting perhaps 
 to the weight of authority, the duty as to care and protection of 
 passengers while on the premises of the company, but not being 
 actually transported is limited to exercise of reasonable care. 
 
 All authorities concur that during the transportation, that is, 
 from the time the passenger enters the vehicle of the carrier until 
 he alights therefrom and during the process of entering and
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 423 
 
 alighting, the carrier owes the highest practicable degree of care 
 so far as premises, equipment, and employees are concerned. The 
 degree of care as to protection from interference by third persons 
 even while in the vehicles of the carrier is frequently stated as 
 reasonable care. 
 
 Passing to the carriage of freight, we find the general rule as 
 to safety is absolute, though subject to five exceptions. It may be 
 stated thus: It is the duty of a common carrier of freight 
 to transport safely all freight tendered to it within the line of its 
 business and to deliver the same uninjured at the place of des- 
 tination. It is customary to add within a reasonable time. This 
 duty is included in the requirements of promptness which have 
 already been considered. 
 
 This doctrine makes the carrier an insurer of the safe delivery 
 of the freight subject to its right to be relieved from liability, if 
 it can show that the injury resulted from any one of the causes 
 recognized in the several exceptions. It, therefore, follows that 
 in a suit for failure to deliver or for delivery in an injured con- 
 dition, the shipper need only prove the fact of shipment and non- 
 delivery or injury to the thing and this fixes liability upon the 
 carrier unless it pleads and proves affirmatively that the destruc- 
 tion or injury comes within one of the recognized exceptions. 
 
 These exceptions are : 
 
 (1) That the thing was injured -or destroyed by the act of God. 
 
 (2) That it was injured or destroyed by a public enemy. 
 
 (3) That it was injured or destroyed by some inherent vice or 
 defect in the thing shipped. 
 
 (4) That it was injured or destroyed by the fault of the one 
 making the claim against the company or by some one for whose 
 conduct he is responsible. 
 
 (5) That the thing was taken from the carrier by authority of 
 law. 
 
 No Unjust Discrimination. — A common carrier must serve 
 without unjust discrimination all who desire to patronize him. 
 The law does not forbid all discrimination. This would 
 be to require an impossibility. It is, however, imperative that 
 no discrimination which is unjust or unreasonable shall be 
 made. This is one of the most important doctrines regarding 
 common carriers. It is the very essence of their duty. Control-
 
 424 AMERICAN ELEMENTARY LAW. 
 
 ling as they do such important activities and means by which they 
 could give such great advantages to any favored locality or per- 
 son, and could do such great injury to localities or persons upon 
 whom they impose undue burdens, it is of prime importance that 
 the law shall require just and impartial treatment of all their 
 patrons. 
 
 This duty of uniformity of treatment applies to the entire con- 
 duct of the busin&ss of the carrier. It must afford equal facilities 
 to its patrons in having access to its premises and vehicles. It 
 must not unjustly discriminate between them as to the time and 
 manner of receiving passengers and freight or of handling either, 
 but must accord to each and every patron the same fair opportun- 
 ity that is afforded to the most favored. 
 
 While the foregoing statements are correct it is only unjust 
 discrimination that is forbidden. Equality of opportunity and of 
 service and not identity of treatment is what the law demands, 
 hence carriers are not forbidden to make reasonable and just dis- 
 criminations. 
 
 If two persons should each come to the same freight depot at 
 the same time, one desiring to ship live stock and the other fur- 
 niture, the law would neither require the carrier to rush through 
 the furniture within the same time that the live stock should be 
 carried and delivered, nor would it require that the live stock be 
 held back to the same speed of transportation as would be reason- 
 able for the furniture. On the contrary, it would require the 
 carrier to deal with each of these shipments according to its kind, 
 hurrying through the live stock and handling the furniture more 
 slowly. 
 
 Again, all discrimination as to charges for service is not unlaw- 
 ful. Because a carrier charges passengers for short distances 
 three cents a mile does not make it unlawful for it to sell tickets 
 for long journeys at a less rate; nor because freight in a small 
 package *is charged a certain rate per pound is it obligatory to 
 charge the same rate on car load lots. 
 
 These illustrations will show that it is not identity of charge 
 that is required, but that it is unjust discrimination that is for- 
 bidden. 
 
 "When it is said that common carriers must serve without dis- 
 crimination all who desire transportation for themselves or for
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 425 
 
 their freight and must observe a high degree of care for the safety 
 of the passenger and insure the safety of the freight subject to 
 specified exceptions, we have announced apparently conflicting 
 and impracticable rules, for it not infrequently happens that in- 
 discriminate service for all would jeopardize the safety of all. 
 
 For example, a passenger coach with numerous passengers 
 aboard arrives at a station and a man infected with smallpox of- 
 fers to enter the car. If, because the company has received the 
 other passengers, it is therefore compelled to accept and carry him, 
 it would jeopardize the health and safety of all passengers then 
 on the car and all who might subsequently enter it. Under such 
 conditions the law says that the infected passenger is not fit for 
 transportation, thus discriminating between persons who are 
 sound and those infected or suffering from contagious disease. 
 This is not only just but is imperatively demanded by the carrier's 
 duty to protect passengers already in its custody. So we see 
 the duty to carry passengers is not to carry all persons but all 
 persons not in such condition as to be dangerous to other passen- 
 gers. The source of danger need not be disease. If one offering 
 himself for transportation is drunk and disorderly, or disorderly 
 without being drunk, he may be rejected without liability on the 
 part of the carrier. 
 
 This doctrine, so far as applicable, controls also shipments of 
 freight. No one could legally demand of a common carrier that 
 it receive nitro glycerine or dynamite for transportation in 
 an ordinary car with ordinary freight, unless it had been spe- 
 cially and most carefully prepared for such transportation. To 
 accept it in any other condition would be to jeopardize the nitro 
 glycerine or dynamite itself, everything in the car with it, the car 
 containing it, and possibly the whole train and train crew. This 
 would be unreasonable and unjust and the law refuses to make 
 any such requirement. 
 
 Charges. — The charges of common carriers must be uniform 
 for identical service and must be reasonable in amount. 
 
 "What we have just said with regard to discrimination applies 
 here. The charge must be the same for the identical service un- 
 der identical conditions, but changes in the nature or extent of 
 the service, or in the facilities furnished, or the conditions under
 
 426 AMERICAN ELEMENTARY LAW. 
 
 which the service is rendered very often require correspond- 
 ing changes in the charges. 
 
 The difference between first and second class passage on steam- 
 ships is everywhere recognized. The passenger in the hold and the 
 one in the state room of the same ship, are carried from the same 
 port over the same route to the same port, but there are great dif- 
 ferences between the comfort and facilities that they have en- 
 joyed. The steamship company having given to the one appre- 
 ciably better service than it did to the other is legally entitled to 
 charge correspondingly more. The same is true within limits as 
 to all other common carriers. 
 
 There is even greater latitude for difference in charges upon 
 different kinds of freight. Some articles can be carried in rough 
 cars and will stand rough handling and scarcely be said to be lia- 
 ble to loss or injury during the trip, while others are delicate, re- 
 quiring specially prepared cars and special care and attention 
 during the transit, and notwithstanding all these precautions are 
 still liable to serious injury while en route. 
 
 It is clear that if the law is to be just it must take all these dif- 
 ferent matters into account in determining the reasonableness of 
 freight charges, and it accordingly does so. 
 
 Courtesy. — Courtesy is usually regarded more as a social than 
 a legal duty but there can be no doubt that it is legally incumbent 
 upon common carriers and their servants to treat courteously all 
 their patrons. 
 
 There is very little litigation in which the sole charge against 
 the carrier or its servants is lack of courtesy but the issue often 
 arises incidentally and discourteous and rude treatment are often 
 condemned in the opinions of the judges and are taken into ac- 
 count in estimating the amount of damage recoverable. This is 
 particularly true as to female passengers and in cases of unlaw- 
 ful ejection of passengers. 
 
 Right to Change Legal Duties by Contract. 
 
 The duties of common carriers as hereinbefore discussed are 
 those which exist at Common Law. It will be observed that many 
 of these are duties in which the public as well as particular ship- 
 pers are interested. Where the duty is one of real public concern, 
 such as uniformity and reasonableness in charges, the duty can- 
 not be varied by agreement in such way as to prejudice the public
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 427 
 
 interests. The effect of the agreement as between the parties, 
 when this is dependent entirely npon the Common Law, is this; 
 if the agreement involves no breach of public duty and is in it- 
 self, under all the circumstances of the case, reasonable and just, 
 as between the parties it will be enforced. No agreement between 
 a common carrier and a patron which is contrary to the best in- 
 terests of the public, or which is in itself unreasonable, can be en- 
 forced. 
 
 There is practical uniformity in the decisions of the Common 
 Law Courts on the proposition that the agreement must be rea- 
 sonable in the eyes of the law in order to be valid, but there is 
 marked difference in the application of this doctrine by different 
 courts to substantially the same states of facts. 
 
 To illustrate, if a person desiring to ship animals tenders them 
 for shipment and in the bill of lading or contract of shipment 
 agrees that the value of the animals does not exceed one hundred 
 dollars per head, and the contract stipulates that the freight 
 charges are based on this agreement, the Supreme Court of the 
 United States holds that the agreed value is binding and if one 
 or more of the animals are killed in transit, even through the 
 negligence of the company, the shipper can not recover more than 
 one hundred dollars for each animal that was killed, although in 
 point of fact they may have been worth much more. This court 
 says that the shipper, having agreed to this value and having ac- 
 cepted the freight charge based thereon and thus having gotten 
 the benefit of the agreement, cannot reasonably be heard to object 
 to the agreement when it injures him. 
 
 On the other hand, some of the Supreme Courts of the States 
 hold that it is always unreasonable to permit a party to under- 
 take to relieve himself by agreement made before the commission 
 of a wrong from the consequences of such wrong, and therefore, 
 if the killing of the animals resulted from the negligence of the 
 carrier, it cannot take advantage of the agreement to limit its lia- 
 bility to a sum less than the damage directly resulting from its 
 own breach of legal duty. 
 
 Control by Federal and State Governments. 
 
 The Supreme Court of the United States, by an unbroken line 
 of decisions, has settled that the transportation of passengers and 
 freight by common carriers is commerce. Transportation be-
 
 428 AMERICAN ELEMENTARY LAW. 
 
 tween different States, or from a State to a foreign country is, 
 therefore, within the jurisdiction of the Federal Government un- 
 der the Inter-State Commerce clause of the Federal Constitution. 
 Transportation entirely within one State is domestic commerce 
 and within the regulation of that State. 
 
 Transportation in which the point of shipment is in one State 
 and the point of destination in another is inter-State commerce. 
 Transportation which has its point of shipment and its point of 
 destination in the same State is ordinarily domestic commerce. 
 
 If, however, during any part of the carriage the freight shall 
 be carried out of the State in which it was received, and into an- 
 other State, or should be carried out of the State in which it was 
 received onto the high seas, the shipment would be inter-State or 
 foreign commerce, according to the facts, even though the point 
 of destination was within the same State as the place of shipment. 
 
 Congressional Action. — Acting under the Inter-State Com- 
 merce Clause, Congress has passed many laws regulating the 
 duties and liabilities of Common carriers engaged in inter-State 
 and foreign commerce. The principal one of these is the statute 
 creating the Inter-State Commerce Commission and its various 
 amendments. The general effect of this Congressional regulation 
 is to limit the powers and enlarge the liabilities of the common 
 carriers. 
 
 State Action. — In many of the States there are statutes modi- 
 fying the Common Law liabilities of common carriers. In almost 
 every instance the effect of these statutes is to restrict the powers 
 of carriers engaged in domestic commerce to a greater extent than 
 is done by the Common Law. 
 
 Among the most common of these statutes are those creating 
 State Railroad Commissions and those which forbid common car- 
 riers to make any contract limiting in any wise their duties and 
 liabilities as fixed by the Common Law. 
 
 The statutes creating State Railroad Commissions in their gen- 
 eral outlines have been held constitutional. Objections have been 
 successfully made to some of the particular provisions of some of 
 the acts. The State statutes denying the power of the common 
 carriers to limit their Common Law liability are uniformly held 
 to be valid so far as they affect domestic carriage. They have no 
 effect ordinarily on inter-State or foreign transportation.
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 429 
 
 Agreements to Carry Beyond Carrier's Own Line. — If a nat- 
 ural person engage in the business of common carriage he can 
 designate the locality in which he will operate and the route over 
 which he will carry. If the carrier be a corporation, its locality 
 and route is indicated in its charter. Strictly speaking, it is a car- 
 rier only within the territory or over the route specified therein. 
 
 It is apparent, however, that both the interests of the public 
 and of the various common carriers, particularly railroad and 
 steamship companies, require co-operation among the different 
 companies and promptness and continued liability in the trans- 
 portation of freight over connecting lines. 
 
 Questions necessarily arose in shipments that were to pass over 
 more than one line as to the respective rights and duties of the 
 different carriers and the shipper. It has been held, with reason- 
 able uniformity, that the legal duty of a railroad company only 
 requires it to carry freight or passengers over its own line of road 
 and to deliver it or them safely to the next connecting carrier. As 
 a legal proposition this seems to be satisfactory, but as a matter 
 of business the shipper is, or at least is supposed to be, largely at 
 the mercy of the respective carriers. Constant effort has, there- 
 fore, been made by the courts, and in a good many States by the 
 Legislatures, to fix upon the initial company the liability of 
 a common carrier over the entire route. 
 
 So far as the matter rested upon the Common Law doctrine it 
 seems clear that no one of the connecting lines is a common car- 
 rier of the freight while in the possession of or on the line of any 
 of the other roads, unless it has agreed to become liable as a com- 
 mon carrier over the entire route of carriage. This seems both 
 just and legal. 
 
 It is very commonly held that any one carrier in the line of 
 transportation may, by contract, assume the liability of a common 
 carrier over the entire route. This doctrine having been estab- 
 lished it necessarily led to questions of construction of contracts 
 between different carriers in order to ascertain whether or not 
 each carrier is responsible only for damage occurring on its own 
 line or for that occurring anywhere in transit. In some States the 
 Legislatures have taken up the matter, and have passecf statutes 
 providing in substance, that any contract which fixes a through 
 rate of charge over all the lines, should be regarded as fixing
 
 430 AMERICAN ELEMENTARY LAW. 
 
 Common Law liability upon each of the lines for damages occur- 
 ring anywhere on the route. Some of these statutes have been 
 held constitutional. As an original question their constitutionality 
 seems doubtful. 
 
 We may state the law on this subject, therefore, as follows: 
 
 (1) A railroad company is not compelled by law to act as 
 a common carrier or assume the liabilities of a common carrier for 
 freight or passengers after it or they have passed off of its line 
 and have been received by a connecting carrier. 
 
 (2) A railroad company may lawfully assume such liability by 
 contract. 
 
 • (3) The tendency of the courts is to hold contracts for trans- 
 portation which contemplate continuous carriage over separate 
 lines of road as through contracts, and hence to hold anyone of 
 the roads to the Common Law liability of a common carrier for 
 injuries occurring anywhere during the transit. 
 
 (4) In some States, statutes have been passed declaring that 
 shipments contemplating continuous transportation for through 
 rates of freight shall be regarded as fixing Common Law liability 
 on each of the roads for injuries occurring anywhere on the route. 
 In the absence of a contractual obligation, either actual or im- 
 posed by construction of law, each of several connecting lines of 
 road is responsible as a common carrier only for injuries occurring 
 on its own line. The difficulty, particularly in shipments of 
 freight, in proving just where the hurt occurred often works 
 quite a hardship on the shipper. To meet this some of the courts 
 have undertaken to announce certain presumptions as applicable 
 to cases of this sort. Some hold that in the absence of proof 
 it will be presumed that the damage occurred on the line of the 
 last road over which the shipment passed ; others intimate, if they 
 do not hold, that it will be presumed that the damage occurred on 
 the first road. "Where any such presumption is established by the 
 local law it may be safely relied upon. Unless it is thus clearly 
 established, the party claiming damage must prove definitely 
 upon what line and when and how the injury was occasioned in 
 order to recover. 
 
 Telegraph and Telephone Companies. 
 
 One of the most essential needs of the public is the transmission 
 of information. One of the most extensive and beneficial branches
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 431 
 
 of the Federal Government is the Post Office Department. 
 Through it the Federal Government acts directly in carrying 
 written and printed matter, not for the purpose of changing the 
 locality of the material upon which the information is placed, but 
 for the sole purpose of communicating the information placed 
 thereon. 
 
 Long after the establishment of the Post Office Department the 
 art of communicating thought by means of electricity was 
 developed. This came as the result of private industry and ca- 
 pacity and at private expense. The appliances used for this pur- 
 pose were of such kind that the government issued patents to pro- 
 tect the inventors in their use. Thus the business of communicat- 
 ing by telegraph began as a private business carried on by 
 instrumentalities owned by private individuals and protected by 
 monopolistic privileges. It was soon demonstrated that this 
 method of quick transmission of ideas was safe and practicable. 
 The business world increased its use of the telegraph and the tel- 
 egraph companies responded by increase and betterment of facil- 
 ities. This process of development has gone on and the commer- 
 cial world has so adjusted itself and its methods to this rapid 
 transmission of information that it is indisputable that the tele- 
 graph is now a public utility. 
 
 In recognition of this fact a number of years ago the English 
 Government took charge of the business of telegraphing in Eng- 
 land and all telegraph and telephone lines in the island of Great 
 Britain are owned and operated by the government. This method 
 of government ownership has not been adopted in the United 
 States and these businesses are conducted by private persons 
 almost invariably by private corporations chartered for such 
 purpose. 
 
 The public nature of the business and its effects upon the inter- 
 ests of the community at large demonstrate that these enterprises 
 are public utilities. As such, they owe to the public each of the 
 six duties hereinbefore enumerated. 
 
 There is a controversy still unsettled as to whether or not these 
 companies are common carriers. The better opinion is that they 
 are not. They do not carry any corporeal thing. Their sole 
 function is to transmit information, which, of course, exists only 
 in thought. The material part of the message, that is to say the
 
 432 AMERICAN ELEMENTARY LAW. 
 
 paper with the words written on it, is not sent but remains in the 
 receiving office. By aid of electricity the words represented by 
 the written characters are transmitted by sound to the ear of the 
 person at the receiving instrument, so that it is only sound em- 
 bodying thought, or thought as embodied in sound, that is trans- 
 mitted. This would seem to be conclusive against the proposition 
 that these companies are common carriers. This, however, does 
 not affect the fact that they are public utilities owing to the pub- 
 lic all the duties above enumerated and are subject to special reg- 
 ulation and control with regard thereto. 
 
 While the duties of all parties subserving public uses are the 
 same the emphasis or stress is laid differently according to the 
 nature of the service. As we have found, great attention is given 
 to the safety of the thing transmitted in the case of common car- 
 riers, and the time of delivery is not particularly emphasized. In 
 the case of telegraph and telephone companies, emphasis is laid 
 upon the duty of promptness. All the other duties rest upon 
 them and must be faithfully observed, but the need of the public 
 which these companies specially meet is rapid transmission of in- 
 formation, and this need these companies must meet or be subject 
 to liability. It is true that as to the time of delivery, the language 
 in which the rule is stated is the same with reference to common 
 carriers and telegraph companies. The service must be rendered 
 within a reasonable time. But the lapse of a period of time, which 
 would be perfectly reasonable and therefore legal in carrying 
 freight, might well be very unreasonable and hence illegal in the 
 transmission of a dispatch. 
 
 Reasonableness is always to be determined by the nature of the 
 thing undertaken and the facts of the particular case. Men do 
 not resort to the use of telegraphs and telephones to transmit in- 
 formation that will await the slower processes of the mail. It is 
 because quickness is of prime importance that these agencies are 
 employed. Hence it is that as to these companies the law is quite 
 insistent upon the duty of promptness. 
 
 It is true that the law insists on reasonable and proper discharge 
 of each of the other duties. The service must be efficient in 
 every other respect as well as with regard to time. It should be 
 rendered with reasonable safety to the known rights of the pa- 
 tron. As to telegraph companies this requires that the message as
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 433 
 
 delivered by the sender be transmitted safely ; that is, just as de- 
 livered to the company at its receiving office. Failure to transmit 
 correctly makes out a prima facie case of liability against the 
 company for any damage directly resulting therefrom. Still the 
 company can relieve itself from this liability by showing that it 
 exercised reasonable care in its effort at transmission, and that 
 the change in the message was not due to any defect in its appli- 
 ances nor to any fault by its servants. 
 
 Telephone companies, as usually operated, do not undertake to 
 transmit messages through their employes but only to furnish 
 proper appliances and connections through which their patrons 
 may communicate with each other. For errors in transmission 
 due to the conduct of either patron, the telephone company is not 
 responsible. If, however, its instruments or line are defective or if 
 the company or their agents fail to use proper care in finding the 
 parties called for they are responsible for any directly resulting 
 damage. 
 
 These companies must not unjustly discriminate between pa- 
 trons desiring, service. The principles regarding discrimination 
 are the same here as with regard to common carriers which have 
 already been discussed. The application, of course, differs with 
 the differing facts, but the doctrines are the same. 
 
 These companies are subject to governmental control both as to 
 uniformity and amount of their charges. Identity of service ren- 
 dered under identical conditions must be charged for at uniform 
 prices, which must in all cases be reasonable. Appreciable differ- 
 ence in service, or the conditions under which it is rendered, will 
 justify difference in charges. But the requirement as to reason- 
 ableness still applies. 
 
 These companies owe to their patrons the duty of courteous 
 treatment. 
 
 We have treated telegraph and telephone companies together 
 because of their practical legal identity. After most careful in- 
 vestigation the English courts announced the doctrine that tele- 
 graph and telephone companies are engaged in the business 
 of transmitting intelligence by sound by means of electricity and 
 this identity of purpose and of means make the two businesses the 
 «ame to all intents and purposes, notwithstanding different appli- 
 es
 
 434 AMERICAN ELEMENTARY LAW. 
 
 ances and different methods of using electricity. The American 
 courts hold the same doctrine. 
 
 Other Public Utilities. 
 
 The duties above enumerated and the foregoing discussion of 
 them as regards common carriers, and telegraph and telephone 
 companies, mutatis mutandis, apply to all other public utilities, 
 such as water works, gas works, sewers, etc. 
 
 PRIVATE PROPERTY CHARGED WITH PUBLIC USES. 
 
 Besides the use of public property by the public for public pur- 
 poses, and the use of private property for public purposes when 
 such property has consciously been dedicated by its owner to such 
 purposes, as has been discussed in the preceding portions of this 
 chapter, according to many authorities private property may 
 be used for such purposes or in such ways by the owner, as against 
 his will, to charge the property with a public use, and thus sub- 
 ject the charges for such use to regulation by governmental 
 authority. 
 
 To just what uses and for just what purposes the owner must 
 apply his property in order to thus affect it, is difficult to ascer- 
 tain from the cases. The language used in many of them is quite 
 broad and would seem to go, if it does not go, to dangerous 
 lengths, jeopardizing materially the rights of owners. The actual 
 decisions, however, when tested by the facts and the actual ques- 
 tions raised and the points really decided, are not so broad. 
 
 Thus, in the case of Munn v. the People of Illinois (94 U. S. 
 113), Chief Justice Waite uses this language: 
 
 "Property does become clothed with a public interest when 
 used in a manner to make it of public consequence and to affect 
 the community at large. When, therefore, one devotes his prop- 
 erty to a use in which the public has an interest, he, in effect, 
 grants to the public an interest in that use, and must submit to be 
 controlled by the public for the common good, to the extent of the 
 interest he has thus created. He may withdraw his grant by dis- 
 continuing the use ; but so long as he maintains the use, he must 
 submit to control." 
 
 Here the broad statement is made that property becomes sub- 
 ject to public control for the common good whenever it is used in
 
 PUBLIC UTILITIES AND PRIVATE PROPERTY. 435 
 
 a manner to make it of public consequence and to affect the com- 
 munity at large. This is the test given by which to determine the 
 right of the public to fix maximum charges for the use of private 
 property. Whenever it is so used the owner has subjected him- 
 self to the legislative power to fix the price which he may charge 
 for such use. Unless it is so used, the charges are a matter of 
 private concern to be fixed by agreement. 
 
 It would be exceedingly difficult to go through the list of occu- 
 pations and businesses in which men are engaged and determine 
 by this test to which class a great many of them belong/ To what 
 extent the use must be a public consequence or to what extent it 
 must affect the community at large, is not stated and would be 
 difficult of statement. *So, this language, considered by itself, 
 affords but little help in the actual determination of the question. 
 
 If, however, we read the language in the light of the facts of 
 the case and of the issues presented to the court and put upon it 
 the limitation thus arising from its legal context, a good deal of 
 the uncertainty disappears. 
 
 In this case a few grain elevators were handling all the vast 
 output of grain for five or six of the Northwestern States as it 
 passed through Chicago to the Atlantic seaboard. The proprie- 
 tors of these elevators had ceased to compete and had for some 
 time fixed the charges for storing and handling grain by them by 
 agreement to be operative for a term of one year. The situation 
 gave to these proprietors a practical monoply in the handling of 
 grain in Chicago. By their voluntary act, in the pre-arrangement 
 of uniform charges they had changed the possible monopoly into 
 an actual one. It is this monopolistic arrangement that caused 
 the Legislature of Illinois to enact a law fixing maximum charges. 
 
 These facts limit the broad language of the court materially. 
 The real doctrine of a case is always to be determined by, and 
 limited to, the facts and issues before the court. Thus limited this 
 case teaches that private parties, who find themselves so circum- 
 stanced that by combination they can obtain a monopoly in hand- 
 ling a large part of a commodity, that is essential to the life and 
 well being of the public, and who avail themselves of such oppor- 
 tunity and enter into agreements, fixing charges continuing for 
 long terms, thus cutting off competition among themselves, and 
 so practically depriving the owners of such commodities who
 
 436 AMERICAN ELEMENTARY LAW. 
 
 need their services of any opportunities to fix prices by agreement, 
 thereby subject themselves to having maximum charges fixed by 
 the government. 
 
 Thus stated, the rule is just and in keeping with ancient doc- 
 trines which have ever been against monopolies. 
 
 The cases sustaining the right of the government to regulate 
 charges for mills, coaches, ferries, and such matters, may all be 
 referred either to the doctrine controlling the cases in which the 
 owner has consciously dedicated his property to a public use, or is 
 exercising some public prerogative or special privilege in con- 
 ducting it. The right to enact usury laws stands upon a special 
 basis historically easy of explanation and practically just in its 
 operation. But this special regulation should not be taken as a 
 basis for enlarging the doctrine by analogy. 
 
 Whatever difficulty there may be in stating the doctrine accu- 
 rately and in such way as to afford an accurate test as to the cases 
 falling within it, the fact remains, that there is such a doctrine 
 and that it is possible under some conditions for the owner so to 
 use his property as to subject his right to charge for such use to 
 regulation by law. If this control is limited to cases that are 
 practically monopolistic there seems to be no element of danger in 
 it. If, however, it is to be extended to cover all the cases which 
 might, by ingenious reasoning, be brought within the broad lan- 
 guage of some of the opinions, it constitutes a serious menace to 
 private ownership.
 
 PART IV. 
 PROCEDURE. 
 
 CHAPTER I. 
 
 LEGAL SANCTIONS. 
 Necessity for. 
 
 We have endeavored, in the foregoing pages, to present, in a 
 very general way, the rules of being and conduct prescribed by 
 the sovereign to be observed by all persons subject to its author- 
 ity. These are frequently called the Substantive Law. We have 
 found that one of the essential ideas of law is authoritativeness ; 
 that it is a rule imposed and enforced by competent authority. 
 
 We have further found that this idea is carried into the con- 
 ception of legal rights and duties ; that the first always carries 
 with it capacity to control by law, and the second, subjection to 
 guch control. 
 
 This control is made possible by the lawmaking power provid- 
 ing sanctions, that is, commendation or reward for conduct con- 
 forming to legal rule, and condemnation and penalty for conduct 
 violating legal rule. 
 
 The legal idea of sanction includes both reward and penalty. 
 This is larger than the ordinary view which is limited to approval 
 and reward. Without such sanctions attempted regulation of 
 conduct would lose its dignity and force as law and become mere 
 suggestion or advice. Not only must these sanctions be deter- 
 mined upon and announced, but they must also be actually and 
 practically enforced. This enforcement must be by sovereignty 
 itself. 
 
 It is not sufficient to suggest rewards and penalties, and leave 
 their application to the parties interested. This would lead to 
 endless confusion and strife. So, to meet the full measure of its
 
 438 AMERICAN ELEMENTARY LAW. 
 
 duty, the sovereign must provide agencies through which these 
 sanctions can be applied. 
 
 These agencies are called courts. As their purpose is to apply 
 legal sanctions, to be efficient they must be organized with refer- 
 ence to such application, and must be given such members and 
 such powers as will enable them to discharge this function thor- 
 oughly, promptly, and authoritatively. 
 
 The effective and just application of legal sanctions involves 
 three processes : 
 
 (1) The investigation of the conduct to be commended or con- 
 demned, and ascertainment of its nature. 
 
 (2) The comparison of this conduct with the rules of law gov- 
 erning conduct of that kind and the determination of its con- 
 formity or nonconformity thereto, and the consequent award of 
 approval or penalty. 
 
 (3) The practical enforcement of the result thus arrived at. 
 
 Neither of these can be omitted and the plan of applying sanc- 
 tions be complete. As the end ultimately to be attained is the ap- 
 plication of sanctions, the plan for accomplishing it will, of neces- 
 sity, be largely influenced by the nature of the sanctions to be ap- 
 plied. 
 
 Classification of Sanctions. 
 
 As rights are public and private, so are the sanctions by which 
 they are protected. The sanctions sustaining public rights are 
 provided in the Criminal Law, and those sustaining private in 
 Civil Law. The general idea in these is the same ; that is, to en- 
 force obedience to the rules of conduct prescribed by the sover- 
 eign, but the sanctions appropriate to the vindication of these 
 different classes of rights differ materially in their nature, each 
 being adapted to the rights sought to be protected or the wrongs 
 sought to be prevented. They have a good many points in com- 
 mon, however, and these may be profitably considered together 
 before proceeding to those respects in which they differ. 
 
 Sanctions may be arranged into several classes, each division 
 being based on different characteristics. The first, based on their 
 general nature, is into rewards and penalties; the second, based 
 on the instrumentalities through which afforded, is into indi- 
 vidual and governmental; the third, based on the nature of the
 
 LEGAL SANCTIONS 439 
 
 rights sought to be vindicated, into public and private. As these 
 classifications are based on different characteristics, the general 
 classes are not mutually exclusive ; but, as the divisions in each 
 classification are based on the same characteristics, these are mu- 
 tually exclusive. To illustrate: there are private penalties 
 afforded through governmental agencies, and public penalties 
 afforded by the same means ; but there are no such things as pub- 
 lic-private sanctions. And so throughout the whole of the differ- 
 ent groupings. 
 
 Rewards. — Rewards are recognitions of propriety. Sometimes 
 they go beyond the simple fact of recognition, and include some 
 affirmative benefit bestowed in consequence of proper conduct. 
 They rarely take this latter form in the law, though in exceptional 
 cases they do, as in case of payment of money for arrest of per- 
 sons charged with heinous offenses ; but, ordinarily, the approval 
 of proper conduct and protecting the individual in the benefits 
 accruing to him therefrom is as far as the law goes. This recog- 
 nition is adequate, and promotive of the general interests. The 
 subject is theoretically very interesting, but is of no special prac- 
 tical legal value. In our subsequent treatment, we shall deal with 
 penalties. 
 
 Penalties. — It is manifest that simple disapproval of improper 
 conduct would be entirely inadequate to vindicate the right vio- 
 lated, or to deter others from a repetition of the wrong, so in its 
 sanctions for wrongful conduct the law goes further and inflicts 
 punishments proportioned to the wrong. 
 
 These punishments may be divided into preventive penalties 
 and compensatory, or redressive penalties. The first are designed 
 to prevent some particular legal wrong then imminent, and the 
 second to give remedy for wrongs already sustained and to deter 
 similar wrongs. This division runs through both of the other 
 general classifications given above, so that in the second general 
 classification we have preventive public penalties and preventive 
 private penalties applied through governmental agencies; in the 
 third, the division, though recognized, is less important as prac- 
 tically all sanctions applied by individuals are preventive, re- 
 dressive measures by individuals in their own behalf being rarely 
 recognized as lawful.
 
 440 AMERICAN ELEMENTARY LAW. 
 
 Sanctions Applied by Individuals. 
 
 We have considered these under the head of self-help, as in- 
 volved in remedial rights, and refernce to that head is made for 
 treatment of the general nature and extent and limitations 
 of remedies of this kind. In Civil Law the right of the individual 
 to help himself without calling in governmental agencies, is con- 
 fined almost exclusively to preventive remedies. If an injury of 
 a substantial nature to a legal right is imminent, or from the cir- 
 cumstances, as they exist, such injury reasonably appears to be 
 imminent, the private individual may use all reasonably adapted 
 and proportioned means to prevent it. He can not go beyond that 
 which is reasonably adapted to the threatened wrong, nor go be- 
 yond the point of adequate protection, but this far he may 
 go without incurring liability. There were some forms of redres- 
 sive remedy, quite extensively recognized at one time, such as re- 
 tention of cattle trespassing on land, or distraint for rent, which 
 have fallen largely into disuse, having been, in a great degree, 
 superseded by simpler and less dangerous statutory remedies 
 through governmental agencies. Enough of such remedies re- 
 main to justify retaining the idea that some legal wrongs may be 
 redressed by individual action. 
 
 In Criminal Law there is a slight recognition of the idea of re- 
 dress by individual action. This is manifested in two ways: 
 First, by express extension of the time in which action may be re- 
 garded as preventive, as the provision, in case of homicide, that if 
 one interferes to prevent the killing of another he shall be 
 regarded as acting on the defensive, if he act while the slayer is 
 inflicting injury on his victim, although the mortal wound may 
 already have been given ; or in case of robbery, where the time is 
 extended to include any act done while the robber is in the pres- 
 ence of the one robbed, without having separated from him since 
 the offense. 
 
 Second, in the mitigation of the penalty for offenses when the 
 injured party had given serious provocation just preceding the of- 
 fense, as when one has used insulting language toward another 
 and the latter strikes him on that account. 
 
 Sanctions Applied by Governmental Agencies 
 
 As the law provides both preventive and redressive sanctions 
 for both public and private rights, it will be convenient to con-
 
 LEGAL SANCTIONS. 441 
 
 sider these in combination, rather than to take up each of the four 
 classes separately. 
 
 Public. — The sanctions designed to protect public rights are 
 provided by the Criminal Law and their enforcement is secured 
 in accordance with the rules known as Criminal Procedure. 
 These sanctions are preventive and redressive. The idea con- 
 veyed by the word preventive here is not the tendency to discour- 
 age crime generally by punishing wrongdoing after it is commit- 
 ted. This general deterrent effect results from the application of 
 redressive sanctions. The thought conveyed by the word preven- 
 tive, in this connection, is the coming between an attempted crime 
 and its injurious consequences and thus preventing the infliction 
 of the injury designed by the wrongdoer. 
 
 Preventive sanctions in criminal law are few. They include the 
 abatement of public nuisances, destruction of counterfeiting tools, 
 and other similar measures, requiring peace bonds from persons 
 threatening the life or safety of particular individuals, the writ of 
 habeas corpus in cases of false imprisonment, and some others. 
 
 The other class of sanctions, the redressive, or punitory, are 
 punishments inflicted for previous violations of law. They can 
 not be called redressive in the same sense that the term is used in 
 connection with private rights. The latter are principally com- 
 pensatory, intended to put the injured party as nearly in the con- 
 dition in which he was before the injury as can be done practi- 
 cally, while the former can not accomplish this even approx- 
 imately, and are designed to punish the wrongdoer and demon- 
 strate the undesirability of wrongdoing. 
 
 Punitory sanctions, or punishments, are much more common 
 and varied. They are, in Common Law countries, confined prin- 
 cipally to the following: pecuniary fines, imprisonment, death, 
 forfeiture of property rights, or of civil and political rights and 
 privileges, transportation, and outlawry. The law-making power 
 considers the nature of the wrong being dealt with, and selects 
 from among the penalties above enumerated the one or more 
 which seems most just and effective, and fixes that as the punish- 
 ment to follow upon the designated wrong. In many States this 
 right to choose is restricted by constitutional provisions, such as: 
 "No citizen shall be outlawed ; nor shall any person be trans- 
 ported out of the State for any offense committed within the
 
 442 AMERICAN ELEMENTARY LAW. 
 
 State." "No conviction shall work corruption of blood or for- 
 feiture of estate." "Excessive bail shall not be required nor ex- 
 cessive fines imposed, nor cruel or unusual punishments in- 
 flicted." 
 
 These provisions are binding on all departments of the govern- 
 ment, and no punishment violative of any of them can be imposed 
 or enforced. 
 
 The penalties may be certain, or in the alternative, as a pecu- 
 niary fine on the one hand, or a fine or imprisonment on the other. 
 They may be fixed in extent or amount, as imprisonment for a 
 fixed time, or they may be confined within designated minimum 
 and maximum limits, as a fine of not less than $50, nor more than 
 $250. They may combine two or more kinds of punishment, as a 
 pecuniary fine and imprisonment, or imprisonment and forfeiture 
 of civil rights, etc. In short, the penalties imposed for crimes 
 may be such as the legislature may select, singly or in combina- 
 tion, subject only to the constitutional limitations existing in the 
 particular State. 
 
 Remedies to Protect Private Rights. — We have here the two 
 classes, preventive and redressive sanctions. The latter are much 
 more numerous and earlier in their origin, and so the terminology 
 of this part of the law has been developed principally in connec- 
 tion with them. As their design is to compensate for injury sus- 
 tained, to remedy a wrong already undergone, they are most fre- 
 quently thought of and spoken of from this point of view, and are 
 designated remedies, and we shall also employ that term, though 
 as to the preventive sanctions, its accuracy may not be readily 
 apparent. 
 
 In the main, the distinction between preventive and redressive 
 remedies is not difficult to make, but in some instances the nature 
 of the wrong and the complete vindication of the right involved 
 requires a blending of the two. This occurs usually in continuing 
 wrongs. In such cases, the classification would not be strictly ac- 
 curate if the proceeding be considered as indivisible. If, however, 
 we consider all the facts and look upon so much of the remedy as 
 is designed to cut off future injury as preventive, and so much as 
 compensates for past wrong as redressive, the difficulty will be 
 greatly lessened, if not entirely removed.
 
 LEGAL SANCTIONS. 443 
 
 Preventive Remedies. — Preventive remedies are those which 
 looking to the future, and judging it by the past and pres- 
 ent conduct of the person or persons complained of, anticipate 
 either the immediate beginning of wrongful conduct, or the con- 
 tinuation of a course of such conduct already begun, and under- 
 take to forestall it and its injurious consequences, by dealing di- 
 rectly with such conduct and compelling the person to desist from 
 prosecuting his unlawful designs. These evil designs may re- 
 quire affirmative wrongdoing on "his part to accomplish them. If 
 so, the law forestalls this by forbidding and restraining him from 
 doing. This remedy is called an injunction. This wrongful con- 
 duct may be simply negative, omitting to discharge some legal 
 duty requiring affirmative action. If so, the law becomes affirma- 
 tively mandatory, and compels the doing of the designated act. 
 Several remedies of different names are employed for this pur- 
 pose. They include mandatory injunctions, decrees of specific 
 performance, mandamus, granting writs of possession of particu- 
 lar property, abatement of nuisances, etc. The more important 
 of these will be discussed in connection with the several courts 
 which enforce them. 
 
 Redressive Remedies. — Redressive or compensatory remedies 
 are those which, dealing with injuries already sustained, under- 
 take to make compensation for them. The law 's idea of compen- 
 sation is payment to the injured party of a sum of money justly 
 equivalent to the value of that which is lost as a direct con- 
 sequence of the wrong of which he complains. Sometimes this is 
 very easy of accomplishment; sometimes more difficult, but still 
 practicable ; and in other cases, owing to the nature of the injury 
 and the surrounding facts, it is wholly impracticable. The last 
 class of cases, unless the facts entitle to some other remedy, are 
 beyond the jurisdiction of municipal law, and no redress can be 
 afforded. 
 
 Damages. — This money estimate of injury is called damage, 
 and the rules of law for calculating its amount are the legal meas- 
 ures of damage. When the injury is to a right in things, 
 the measurement is usually simple. If the wrong involve the de- 
 struction or other total deprivation of the thing, its reasonable 
 market value at the time and place of the injury is ordinarily the
 
 444 AMERICAN ELEMENTARY LAW. 
 
 measure. For example : If A owns 10 bales of cotton and B un- 
 lawfully takes it and applies it to his own use, the law will in- 
 quire what the cotton could have been sold for at the time and 
 place when and where B took it, and make B pay to A that sum, 
 as the equivalent of the cotton ; and, as A was all the while en- 
 titled to the use of the cotton ; or as if he had sold it for cash on 
 the day B took it he could have had the use of the money since 
 that day, the law makes B pay him the value of this use, which it 
 estimates at the legal rate of interest on money so that A would 
 recover from B two items of damage: (1) the cash value of the 
 cotton as of the date B took it; and (2) additional compensation 
 for the use of his money by B estimated as equal to the legal rate 
 of interest for the time B has had it. This is the simplest form of 
 measuring damages. It is the method in all cases in which the 
 wrong consists in the total deprivation of a thing which has 
 a market value unless the wrongdoer acted in bad faith. If the 
 thing has no market value the law makes full investigation as to 
 its nature and qualities and uses, and arrives at its intrinsic value 
 as nearly as it can and allows this. If the wrongdoer knew he 
 was acting unlawfully, the owner can recover the highest market 
 price which could have been gotten for the thing at any time be- 
 tween the commission of the wrong and the trial of the case. 
 
 If, instead of totally destroying or appropriating the property, 
 B had injured it, as in case of the cotton by setting fire to it and 
 consuming part of it and lessening the market price of the re- 
 mainder, here it would not be just to permit A to keep what was 
 left of the cotton and compel B to pay him the full value of all of 
 it ; so the law changes its measure, and compels B to pay the full 
 market price for that destroyed and the difference in market 
 value of that remaining; that is, it finds the market value of the 
 destroyed cotton as of the date of its destruction, and allows A 
 tli at and damages for its detention, as above, and then ascertains 
 what the balance was worth on the market in its injured condition 
 at the time and place of the injury, and what it would have been 
 worth at the same time and place uninjured and allows A the dif- 
 ference between these two values and also compensation for the 
 detention of this. If B acted in bad faith the highest market 
 value rule would apply.
 
 LEGAL SANCTIONS. 445 
 
 If the wrongdoer has s'mply taken the property and has it, the 
 owner may pursue either of two remedies : he may sue for the 
 thing and have it restored to him and make the wrongdoer pay 
 the reasonable value of its use while he has had it, or he can sue 
 him for the value and damages for its detention, as in case of loss. 
 In some States, these two remedies may be sued for in the same 
 action, the judgment being in the alternative, first that the de- 
 fendant return the property and pay for its use, or, if this be not 
 done, then that he pay the value and compensation for its deten- 
 tion. 
 
 "When the injury is to rights against particular persons, when 
 damage is the appropriate remedy, it is usually easy to compute. 
 To illustrate : A owes B a debt on a note or on open account and 
 does not pay. The measure of damage is the amount of the debt, 
 principal and interest. If the contract be one for service and it is 
 broken by the master or principal the servant or agent can recover 
 the value of the service already rendered and unpaid for, and also 
 the contract price or reasonable value of the service which he was 
 to have rendered, less the amount he has earned, or, by reasonable 
 effort, might have earned, during the remainder of the time for 
 which he was hired ; and so on, through the whole catalogue of 
 similar wrongs. When the right is one arising from contract, and 
 is of such kind that it is practicable and more just to require the 
 party in default to do the act he has promised to do, this will be 
 required of him. 
 
 "When the wrong is one violative of a personal right, as assault 
 and battery, or false imprisonment, or slander and similar cases, 
 there is no exact and accurate standard by which to measure the 
 damage. Resort can not be had to market value, for there is none. 
 The law does the best it can to represent the injury fairly and 
 dispassionately in terms of money and awards this. Loss of time 
 and expense directly resulting can be measured with approximate 
 accuracy; diminished wage-earning capacity may also be ap- 
 proximated, but the elements of pain and suffering, whether 
 physical or mental, are very vague and uncertain. The best that 
 can be done is to take the judgment of fair and unbiased men of 
 ordinary intelligence as to the amount which should be paid. 
 When the injury becomes too indefinite to admit even of this
 
 446 AMERICAN ELEMENTARY LAW. 
 
 method of dealing, the law abandons the attempt at compensation, 
 and refuses to entertain the case. 
 
 As noted before, compelling the payment of damages is by far 
 the most common remedy. There are others, some of which have 
 been referred to above, which, though less frequent, are still of 
 great importance. These will be considered in connection with 
 different kinds of courts through which they are given.
 
 CHAPTER II. 
 
 COURTS. 
 
 Nature and Organization of Courts. 
 
 Having arrived at a fairly accurate conception of the purposes 
 to be accomplished through the courts we are in position to study 
 intelligently the nature and constitutent members and organiza- 
 tion of these tribunals. 
 
 Definition. 
 
 A court is an agency of sovereignty, created by it or under its 
 authority, consisting of one or more officers, for the purpose of 
 hearing and determining issues of law and fact regarding legal 
 rights and alleged violations thereof and applying the sanctions 
 of the law, exercising its powers in due course of law, at times and 
 places previously determined by lawful authority. 
 
 A court is not "a place where justice is judicially adminis- 
 tered. ' ' It is the tribunal, created by sovereignty as its agent to 
 administer justice judicially, at designated times and places. 
 
 As an agency of sovereignty it exercises delegated powers and 
 administers the will of sovereignty as expressed and embodied in 
 the law. Strictly speaking, a court has no will or preferences of 
 its own. It is the official instrument through which sovereignty 
 investigates the conduct of individuals, applies to such conduct 
 the standards of the law, forms and announces its judgment, and 
 enforces its will. 
 
 The judicial function of government involves the exercise of 
 three powers : 
 
 (1) The power to investigate and decide the facts and apply 
 the law to the facts as ascertained. 
 
 (2) The power to determine and announce the result of the in- 
 vestigation and application. 
 
 (3) The power to enforce, or more accurately, to supervise the 
 enforcement of the result announced.
 
 448 AMERICAN ELEMENTARY LAW. 
 
 The courts of a government are the tribunals through which it 
 exercises this judicial function. 
 
 The United States Government and each of the States has or- 
 ganized a system of. courts dividing among them its judicial 
 power, giving to each class of courts so much of this power as it 
 sees fit. The amount of power thus given to each court is its po- 
 tential jurisdiction. It can rightfully hear and determine any 
 and all cases committed to it by the sovereign. Any attempt to 
 try a case of any other kind would be unauthorized and the action 
 void. 
 
 Courts are ordinarily created by the direct act of sovereignty 
 by constitutional provision. This is not necessary, however, as 
 the constitution may authorize the creation of all courts consti- 
 tuting the judicial system or some portion of them by the Legis- 
 lature. The Constitution of the United States creates only the 
 Supreme Court of the United States and does not give the num- 
 ber of judges constituting that nor undertake to state all the 
 jurisdiction of that tribunal. Many of the States pursue the 
 same policy. 
 
 A court, considered abstractly, exists only in legal contempla- 
 tion. Like a corporation, which it much resembles, it can do 
 nothing of itself. All of its functions must be discharged through 
 natural persons and the law frequently speaks of these persons in 
 their official capacity as constituting the court. These officers 
 comprise a judge or judges, a jury, a clerk, and an executive offi- 
 cer known as marshal, sheriff, constable, etc., and attorneys-at- 
 law. 
 
 Judges. 
 
 It is manifest that an agency as complicated and important as 
 a court can not be operated without some responsible head who is 
 authorized to give general direction to its operations and super- 
 vise the action of all its subordinate and correlated parts. The 
 officer occupying this position is the judge. One such officer is 
 essential to the practical working of the court. Frequently there 
 is a larger number of them with some one designated to act as the 
 presiding officer, or chief, among them. The judge is the head of 
 the court, presides at its sessions, exercises general control over 
 all its actions. He decides all questions of law arising in the 
 course of the trial, determines such facts as arise incidentally,
 
 COURTS. 449 
 
 hears and decides all motions during the trial, and determines 
 what judgment shall be rendered. He supervises and directs the 
 clerical officers in keeping the records and issuing process and the 
 executive officers • in the discharge of their duties. In criminal 
 cases and civil suits triable in Common Law courts according to 
 the Common Law he does not decide the questions of fact involv- 
 ing the merits of the case. These are committed to other officers, 
 known collectively as a jury. 
 
 The Jury. 
 
 A jury is a body of men selected as required by law, whose duty 
 it is, under the general direction of the judge, as to matters of 
 law, to pass on the issues of fact in a case. Juries are grand and 
 petit. 
 
 A grand jury is one impaneled in a court having Jurisdiction 
 of criminal matters for the purpose of investigating alleged vio- 
 lations of law committed within the county or district in which the 
 court is held, and determining whether or not there is probable 
 cause to believe the accused person is guilty as charged. If they 
 so find, they advise the proper legal representative of the govern- 
 ment, and he prepares a bill of indictment formally charging 
 such person with the designated offense and this is signed by the 
 foreman of the grand jury and returned by the grand jury into 
 open court. This written instrument is called an indictment. It 
 must have certain requisites. It must show affirmatively that it 
 is filed by the authority of the government ; must identify the ac- 
 cused with reasonable certainty; must set forth the offense 
 against the law in plain and intelligible language, giving facts 
 and not conclusions, unless there be ancient and established pre- 
 cedent for the latter. 
 
 The Constitutions of most States make indictment the only 
 basis of criminal prosecutions of serious nature, and this can not 
 be dispensed with by legislative action. The effect of an indict- 
 ment is to subject the accused to trial on the charge presented in 
 some court having power to finally hear and determine the 
 case. 
 
 A petit jury is one impaneled in a court for the purpose 
 of passing on and finally deciding the issues of fact in a case or 
 cases pending in the court. They are the judges of the credibility 
 29
 
 450 AMERICAN ELEMENTARY LAW. 
 
 of witnesses and of the weight of testimony, except when there 
 are express rules of law applicable to the latter. Whether any 
 proposed evidence is legally to be received is a question of law for 
 the judge. The effect of the testimony, when admitted, is gener- 
 ally with the jury. Juries have, for centuries, been regarded as 
 most imortant factors in the administration of the law. From the 
 time of the introduction of written constitutions it has been cus- 
 tomary to declare in them that "the right of trial by jury shall 
 remain inviolate." There is no question that, although the sys- 
 tem is subject to abuses, it is of very great practical benefit and 
 advantage both to litigants, in reaching just and equitable deci- 
 sions in cases, and to the public as a great educational institution. 
 In the latter respect, it affords to the great body of the people their 
 best administrative and practical information and instruction in 
 the law of the land and the nature of our public institutions. In 
 cases in which there are no juries, the facts are decided by the 
 judge. 
 
 Clerks. 
 
 These are officers, members of the court, whose duty it is to 
 keep the records and files and issue all process required by law. 
 
 Sheriffs or Marshals. 
 
 These are the executive officers of the court whose business it is 
 to attend the court and carry out all its orders, whether given di- 
 rectly by the judge from the bench, or through the clerk by issu- 
 ance of proper process. 
 
 Attorneys-at-Law. 
 
 Attorneys, or counselors, at law are men who, from special 
 study and training, are fitted to assist the judges and juries in the 
 discharge of their duties by taking charge of the interests of liti- 
 gating parties, carefully and intelligently investigating cases be- 
 fore time set for hearing, by properly preparing them for trial 
 and by the true and fearless presentation of the rights of their 
 clients during the trial. Their position is a very responsible one, 
 and affords fine opportunity for rendering substantial aid in ad- 
 ministering justice in individual cases, and also for leadership in 
 all legal and political reforms. They live close to the heart of the 
 business community in their private consultations, and have the
 
 COURTS. 451 
 
 ear of the judge and jury and general public in their court-house 
 work. Their position is one of great public trust, and if they 
 prostitute their opportunities to selfish and unjust ends they 
 become great public evils. If, on the other hand, they are honora- 
 ble, and just, and true, they give to their several communities 
 moral and political ideals and examples of untold good. They are 
 officers of the courts in which they practice, and must procure 
 licenses from the government before entering upon their profes- 
 sion. These licenses may be revoked by the courts at any time, 
 for unprofessional conduct and breach of trust, either to a parti- 
 cular client or to the public. It is unfortunate that the practice 
 of the profession is not more closely guarded against false and 
 designing men who use it for ulterior purposes. 
 
 Different Kinds of Courts. 
 
 At different stages of the law's development, and at the same 
 time in different States, there have been quite a number of differ- 
 ent courts. These may, for our purposes, be classified as follows: 
 Courts exercising Common Law jurisdiction; courts exercising 
 Equity jurisdiction; courts exercising blended Common Law and 
 Equity jurisdiction ; and certain special courts, as Courts of 
 Admiralty, Ecclesiastical Courts, Probate Courts, and Courts 
 Martial. There are others, but they are not of sufficient practical 
 importance to claim any share in our limited time. 
 
 As to the three general classes of courts, we will deal in the or- 
 der of their development. The treatment will necessarily be 
 brief, but we will endeavor to make it accurate as far as it extends. 
 
 Common Law Courts. — If we take up the matter historically, 
 we find that of the courts existing in England at the time of the 
 colonization of America and introduced into the original States 
 of the Union, the oldest are those known as the Common Law 
 courts. These courts have both civil and criminal jurisdiction ; 
 though, as they originated in the early stages of social, business, 
 and political development, the civil matters with which they deal 
 are in the main, confined to such classes of cases as arise in crude 
 and primitive conditions of society, and relate to the use and pos- 
 session of land, breaches of agreement and torts involving force 
 in some form. 
 
 In those early days kings were believed to rule by divine right 
 and to be the real source of all political power, including all judi-
 
 452 AMERICAN ELEMENTARY LAW. 
 
 cial functions. All the higher courts after the Norman Conquest 
 were held by the king, or by some one to whom he delegated the 
 authority ; and, until Magiia Charta, they had no fixed place for 
 their sessions, but followed the person of the king wherever he 
 might be. By that instrument, one of them, known as the Court 
 of Common Pleas, was located in Westminister, and location of 
 the others followed. As the institution of a suit in one of these 
 courts was really a petition to the king to give aid against the 
 wrongdoer, the king, when thus solicited, would have the chan- 
 cellor, who was keeper of the Great Seal, to issue a writ com- 
 manding the person complained against to appear before some 
 designated court to answer the complaint. This writ would also 
 specify the matters complained of, and would authorize the court 
 to which it was returnable to inquire into the matter, and award 
 the remedy. These writs were, therefore, the means of bringing 
 the complaint of the person representing himself as injured and 
 the alleged wrongdoer before the court and were, at the same 
 time, the source of authority in the court to hear and decide the 
 case. Naturally, these writs assumed fixed forms. 
 
 They were of several kinds, adapted to the different wrongs 
 complained of. At first the proceedings were plastic. As each 
 kind of writ presented a different kind of complaint and would 
 support a different judgment, the whole proceeding for trying 
 cases under such a writ was designated a form of action, there 
 being as many different forms of action as there were different 
 writs. 
 
 In process of time these methods of procedure in each kind of 
 case became so established that they were regarded as binding 
 alike on the officer who issued the writs and on the court which 
 tried the cases. And, unless the complaint made came within one 
 of the established writs and forms of action, no writ would issue, 
 and no trial could be had. So that redress for civil injuries was 
 limited to certain kinds of wrong, others being without remedy. 
 As the business interests of the community advanced, and new 
 conditions of life arose, this became intolerable. Some slight re- 
 lief was afforded by act of Parliament, but this was limited 
 to only a few cases of hardship, very closely related to some of 
 those with which the law courts were accustomed to deal. No 
 general amelioration of conditions was effected.
 
 COURTS. 453 
 
 The only thing left was to resort to the king by petition, and 
 this would sometimes be granted and sometimes would be referred 
 to the chancellor to act for the king in the premises ; and from this 
 latter practice arose the Courts of Chancery and the system of 
 principles and procedure known as Equity. Before we take up 
 these, we must get some better general ideas of a Common Law 
 court and its methods of action, and the nature of relief afforded 
 by them. 
 
 A Common Law court consisted of a judge or judges and jury. 
 By Magna Charta, and subsequent action, these courts were 
 located at Westminister, and all trials were, in theory, held there. 
 Under the rules of procedure then in force, jurors to try each 
 case were to be gotten from the neighborhood in which the trans- 
 action in litigation occurred. This idea, in connection with trials, 
 was a strong one, and the clerk of the court in Westminister 
 would issue a writ commanding the sheriff of the county in which 
 the cause of the litigation arose to summon a jury from that 
 neighborhood and cause them to come to London at a designated 
 time to try the designated case. The shire or neighborhood from 
 which the jurors were to be summoned was called the venue of the 
 case. We still retain the word, with substantially the same mean- 
 ing. All formal court proceedings then were conducted in Latin, 
 and the two important words in the writ issued to the sheriff re- 
 quiring him to summon the jury were venire facias, do you cause 
 to come, and the writ itself soon took that name, and this is still 
 retained ; and a writ requiring a sheriff to summon an ordinary 
 jury is still called a "venire;" and, if the jury be a special one, 
 as in a capital case, it is called a "special venire." And, by an 
 easy and frequently adopted method of using words, we often 
 hear the jury itself, that has been summoned by this writ, called 
 a "venire." Many of our familiar law phrases have similar der- 
 ivation. 
 
 It soon became exceedingly onerous to compel all jurors and 
 witnesses in every case to come to London to court, and the ex- 
 pedient was adopted of sending one or more of the judges to the 
 county where the witnesses and juries were, there to try the facts 
 of the case and bring back to the court at Westminister a record 
 of what had been done; and the court at Westminister would ac- 
 cept this record as true and enter judgment on it just as if the
 
 454 AMERICAN ELEMENTARY LAW. 
 
 proceedings had transpired there in full court. The conservatism 
 of the Common Law judges was too strong to permit them to do 
 this by direct action. They did it in this fashion: they would 
 cause the proper officer to issue a writ to the proper sheriff re- 
 quiring him to summon the jury to come to "Westminister as be- 
 fore, but would put in the additional provision that they would 
 be excused from coming if one of the justices from the court to 
 which the writ was returnable should come into the county and 
 try the case before the date mentioned in the writ ; if he did come, 
 they were to meet him at the time and place in the county men- 
 tioned. The judge always came to the designated place at the 
 time set, and the jurors did not have to go to London. The writ, 
 in this form, was also in Latin, and the important words in the 
 clause incorporating this new condition were nisi prius, unless 
 before, so the courts which were held by the judges throughout 
 the country under these new writs were called Nisi Prius Courts, 
 and the judges who went out to hold them Nisi Prius Judge§. 
 These terms afterward came to signify Common Law courts and 
 judges, as distinguished from courts of Equity and judges pre- 
 siding over them. 
 
 As the courts of Common 'Law were the earliest agencies of this 
 sort established, they naturally were adapted to crude and primi- 
 tive conditions of society. The matters over which they had 
 jurisdiction were of those kinds which first demand the attention 
 of the people, and were limited to criminal cases and civil con- 
 troversies about land or breaches of contract of the simpler kinds, 
 and wrongs to the person or personal property, almost always 
 committed by force. The remedies given were practically limited 
 to two kinds: (1) restoration of specific property, real or per- 
 sonal, and (2) award of damages. Remedies falling within either 
 of these two classes were known as ordinary remedies ; all others, 
 as extra-ordinary. 
 
 Every civil proceeding in a Common Law court is known as an 
 action. They were of three general kinds: real actions, which 
 pertained exclusively to land and estates in land; personal ac- 
 tions, which pertained to personal rights and personal property ; 
 and mixed actions, which involved both recovery of real property 
 and damage done to it. These several classes, or rather, the first
 
 courts. 455 
 
 and second, were subdivided into numerous different classes, each 
 having its appropriate name and peculiar method of procedure. 
 
 The principal real actions were the writ of right, the writ 
 of entiy, the writ of formedon, the writ of dower, the writ 
 of right of dower, and the writ of quare impedit. These were so 
 complicated and technical, when in use, as to make their study 
 tedious, and, as they have long been superseded by more rational 
 processes, need not be further considered. 
 
 Personal actions were divided into those arising ex contractu, 
 that is, from breach of contract; and those arising ex delicto, that 
 is, from wrong not a mere breach of contract. Each of these 
 classes was again subdivided. Those ex contractu into assumpsit, 
 debt, and covenant ; and those ex delicto- into trespass, trespass on 
 the case, trover and conversion, and replevin, with the action of 
 detinue sometimes classed in the one and sometimes in the other. 
 Mr. Smith, in his work on Elementary Law, makes the following 
 brief, yet comprehensive, statement as to these personal actions : 
 
 "Actions ex contractu are those based upon contract, express or 
 implied; actions ex delicto are those based upon delict or tort. 
 An action of assumpsit is one brought for the recovery of dam- 
 ages for the breach of a simple or parol contract. An action for 
 debt is one brought for the recovery of a liquidated or certain sum 
 of money. An action of trespass is one brought for the recovery 
 of damages for a direct and forcible injury to the plaintiff's per- 
 son or corporeal property. An action of trespass on the case lies 
 to recover damages for an injury to person or property which is 
 either not forcible or not direct. An action for trover is one 
 brought to recover damages for the wrongful conversion of per- 
 sonal property. An action of replevin is one brought for the spe- 
 cific recovery of personal property and for damages for its deten- 
 tion." (Smith's Elementary Law, 317.) 
 
 Detinue is an "action for depriving one of the possession 
 of personalty acquired originally by lawful means.'' (Ander- 
 son's Law Dictionary, title Detinue.) 
 
 The only mixed action was ejectment, which was a proceeding 
 in which specific real property could be recovered, and also dam- 
 ages for its unlawful use and occupation, and injury done to it. 
 Compared with the old real actions which it superseded, it was
 
 456 AMERICAN ELEMENTARY LAW. 
 
 simple and almost rational; compared with the later proceedings 
 which have superseded it, it is cumbersome, technical, fictitious, 
 and ineffectual. 
 
 The foregoing were the civil actions which could be maintained 
 and the remedies which could be obtained in Common Law courts. 
 If a grievance did not come within one of them, these courts could 
 give no relief. 
 
 All matters of law in these courts were to be heard and decided 
 by the judge or judges, as were also all matters of fact arising in- 
 cidentally in the progress of the trial. All matters of fact in- 
 volving the merits of the case were decided by a jury. 
 
 Courts of Equity. — Courts of Equity, or Chancery Courts, are 
 of much later origin than the courts of common law. In a very 
 true sense their existence is a protest against the rigidity and 
 narrowness of the common law courts and their methods of pro- 
 cedure. "When grievances arose for which no remedy was pro- 
 vided at law special petitions were addressed to the king and 
 thecs would be referred to the ' ' keeper of his conscience, ' ' the 
 chancellor, for investigation and such action as equity and good 
 conscience might require. At first, the action was more advisory 
 than mandatory, but as time passed and precedents became estab- 
 lished, resort to this method of relief became more frequent and 
 the procedure more fixed. It became expedient to do more than 
 advise and the writ of subpcena was devised. By this writ the 
 person complained of was compelled to come into the prasence of 
 the chancellor and abide his decision. If the chancellor upon in- 
 vestigation was satisfied that the party complained of was in de- 
 fault he. dealt with his person until he was compelled to do the 
 proper thing in the premises as determined by the chancellor. If 
 the wrongdoer insisted upon continuing in his wrong he was for- 
 bidden to do so and was restrained or enjoined by retaining cus- 
 tody of his person until he desisted and then subjecting him to 
 recapture and holding if he should renew his wrongful conduct. 
 If the wrong was an omission, and it was practicable to compel 
 performance, this would be decreed and compliance enforced in 
 the same way. By this and similar changes the powers of the 
 chancellor were transformed from giving advice addressed to the 
 conscience of the evil-disposed to issuing authoritative commands 
 enforced by pains and penalties imposed upon his body.
 
 COURTS. 457 
 
 As the only occasion for originally resorting to the extraordi- 
 nary petition to the king was that no remedy could be had at law, 
 absence of legal remedy was a condition precedent to relief in this 
 way. Later, entire absence of remedy was not required, and if 
 the suitor could show that he had no adequate legal remedy, he 
 could maintain his suit, if otherwise entitled. It followed from 
 the same fact, that equitable remedies would differ from and in a 
 sense supplement those at law. A perfectly symmetrical develop- 
 ment of the Equity idea would have produced a system of courts 
 in which all wrongful conduct, incapable of correction at law, 
 would have been investigated and appropriately redressed. The 
 practical always falls short of the ideal, and so, no complete sys- 
 tem of administering justice, as then apprehended, did in fact re- 
 sult ; and though the courts of Equity and their remedies afforded 
 great and salutary relief, they did not reach all cases of injustice 
 incident to life, even in its development at that time. 
 
 In process of time, the jurisdiction of Equity came to include 
 the following classes of cases; (1) Those in which it was desired 
 to prevent wrongdoing. (2) Those in which it was desired to 
 compel the doing of some act beside the restitution of specific 
 property or the payment of money. (3) Those in which it was 
 desired to compel the disclosure of facts within the knowledge of 
 the adverse party. (4) Those in which a number of parties were 
 interested in such a way that they could not be placed in 
 two groups and complete justice done between them. (5) Those 
 in which rights asserted were of such kind that the Law courts 
 did not recognize or undertake to enforce them. (6) Those in 
 which duties once enforcible at law had been discharged in such 
 a way as to make it unjust to compel further discharge, yet not in 
 such way that the Law courts would recognize the discharge. 
 Having attained these proportions, the growth of Equity ceased. 
 
 A great many cases come under one or more of these heads, and 
 the powers and jurisdiction of these courts are correspondingly 
 large. Still, if a grievance does not come within these, Equity 
 will not relieve. 
 
 The proceeding in Equity was adapted to the nature of the 
 tribunal and the remedies it afforded. It was begun, not by issu- 
 ing a writ by the king's secretary, which is but another name for 
 the chancellor, as at Common Law, but by a special petition to the
 
 458 AMERICAN ELEMENTARY LAW. 
 
 king, setting up the facts which constituted the special wrong 
 from which the relief was sought. This petition was originally 
 addressed to the king in person; hut, after the establishment of 
 the Court of Chancery, it was addressed to the chancellor. It set 
 out the special facts on which relief was sought, and asked for the 
 appropriate remedy. The parties against whom relief was sought 
 were named, and, after the writ of subpoena came into use, this 
 was prayed for especially against each defendant, naming him. 
 This was necessary, as the remedy was to be enforced only against 
 his person, and not by any writ running against his property. 
 So it became a rule in Equity that no one not named in 
 the prayer for subpcena was a party to the suit, and this 
 doctrine is still enforced in these courts. The subpcena required 
 the defendant to appear before the chancellor, at a time and place 
 named, to show cause why the relief asked by the complainant 
 should not be granted. This cause consisted of some reason in 
 law or in fact which, under the principles of Equity, would de- 
 feat the complainant's case, as set out in his Bill of Complaint, as 
 the petition was called. The defendant was not, as at Law, con- 
 fined to any one defense, but could interpose as many as he might 
 have, if he presented them in proper order. These defenses and 
 their order are thus summed up by Mitford and Tyler, in their 
 work on Pleading and Practice in Equity: "The person against 
 whom a bill is exhibited, being called upon to answer the com- 
 plaint made against him, may defend himself (1) by demurrer, 
 by which he demands the judgment of the court whether he shall 
 be compelled to answer the bill or not; (2) by plea, whereby he 
 shows some cause why the suit should be dismissed, delayed, or 
 barred; (3) by answer, which, controverting the case stated by 
 the plaintiff, confesses and avoids, or traverses and denies, the 
 several parts of the bill ; or, admitting the case made by the bill, 
 submits to the judgment of the court upon it, or upon a new case 
 made by the answer, or both ; or (4) by disclaimer, which at once 
 terminates the suit, the defendant disclaiming all right in the 
 matter sought by the bill. ' ' 
 
 The issues thus joined between the parties were all decided by 
 the chancellor. No jury was ever impaneled in an Equity coui\ 
 and, consequently, this reason for taking the chancellor into the 
 different counties did not exist. The inconvenience as to wit-
 
 courts. 459 
 
 nesses was obviated by taking their testimony by deposition. 
 This is a process of having the witness appear before some desig- 
 nated officer by or before whom they are interrogated under oath, 
 and their answers reduced to writing and signed by the witnesses, 
 and then returned into court by the officer. This obviated the 
 necessity of the personal attendance of the witnesses before the 
 chancellor. It became the settled practice in that court, and is 
 still retained in all courts of strictly Equity jurisdiction and pro- 
 cedure. So that neither jurors nor witnesses are ever in attend- 
 ance upon them. 
 
 The final conclusion arrived at in Equity is not called a judg- 
 ment, but a decree. It is much more flexible and adaptable than 
 a Common Law judgment, and awards to the different parties the 
 different remedies to which each shows himself entitled. 
 
 The distinction between courts of Equity and courts of Law 
 was maintained for many years in England, and was a distinctive 
 feature of English procedure when the American governments 
 were founded and institutions established. It was transported to 
 this continent, was recognized in the Constitution of the Federal 
 goverment, as it is in those of many of the States. It never ex- 
 isted in Texas, and was abolished in New York in 1846, and in the 
 majority of the States since that time. In some of the States re- 
 taining the two systems, the two sets of courts and of presiding 
 officers are retained, the courts of Law being held by judges, and 
 the courts of Equity by chancellors. In the Federal government, 
 and in a number of the States, the distinction between the two 
 jurisdictions and procedures is retained, but the same officer pre- 
 sides over both tribunals, acting as judge in the Common Law 
 court and observing all of the methods of the Common Law in 
 cases coming under his Common Law jurisdiction; and, as chan- 
 cellor, in the Equity court, and, in that, exercising the powers and 
 following the procedure applicable to those courts. 
 
 Courts of Blended Jurisdiction. — In the majority of the States 
 the difference between the two jurisdictions and procedures has 
 been abolished. In Texas, it never was recognized. In these 
 States the same tribunals entertain jurisdiction of both Common 
 Law and Equity causes, recognize and enforce both legal and 
 equitable rights, and award both legal and equitable relief. 
 The proceedings are very much more simple and direct than 
 in either of the systems of courts which have been super-
 
 460 AMERICAN ELEMENTARY LAW. 
 
 seded by them. Most of the States which have this blended 
 system have adopted codes of procedure, regulating all pleading 
 and practice matters thereby. These are called code States, and 
 the pleading, code-pleading. Strictly speaking, Texas is not a 
 code State. She has never attempted to regulate the pleadings in 
 her courts by a code. On the contrary, the Congress of the Re- 
 public, in 1840, in adopting the Common Law, expressly repudi- 
 ated its system of pleading, and declared that "in the courts of 
 this State the pleadings should continue, as theretofore, to be by 
 petition and answer." This left to the courts the question 
 of what pleading had previously been under the Spanish system. 
 This they did, and by a combination of regulation, first by rules 
 promulgated by the courts, and second by decision of cases when 
 presented, they have developed the present Texas system. This 
 is, in effect, the simple, direct, clear presentation to the court, by 
 the respective parties to the suit, of the matters of fact upon 
 which they severally rely in their efforts to induce the court to act 
 as they respectively desire that it should. This is the fundamen- 
 tal conception of pleading in all systems, and the less of conven- 
 tionality and form that is incorporated with it, consistent with 
 due and orderly proceedings in the litigation, the larger oppor- 
 tunity the court has to administer justice. The essential idea is 
 that the court and each of the opposing parties shall be definitely 
 and authoritatively advised, in reasonable time, of the respective 
 claims of all parties, what each relies upon and expects to prove, 
 and that a permanent record of this be made and kept. When 
 this is done the purpose is accomplished. Unless it is, the scheme 
 is a failure, or, at least, defective.
 
 CHAPTER m. 
 
 HOW JURISDICTION OVER A CASE IS ACQUIRED. 
 
 As different as are these several classes of courts, there are some 
 fundamental doctrines which must obtain in them all. They all 
 exercise judicial power in its three phases : hearing, determining, 
 and enforcing, and must all be organized with reference to this. 
 The methods by which these processes are performed are differ- 
 ent, but each of the processes must be gone through with, with 
 fair efficiency, or the particular tribunal is a failure. We have 
 already considered the different matters over which these several 
 classes of courts have jurisdiction. We will now take up the gen- 
 eral principles governing the exercise of these powers, and after- 
 ward some of the peculiarities of each. 
 
 Parties. 
 
 The power of courts is limited to dealing with legal rights and 
 wrongs, and awarding legal remedies. These rights must always 
 belong to, or be united in, one or more persons, and the wrongs be 
 committed by one or more persons, and the remedy awarded to 
 and against one or more persons. In every litigation there must 
 be at least two persons interested, the one seeking relief and the 
 one against whom the relief is sought. In the great majority of 
 instances both these persons are named in the proceeding ; in ex- 
 ceptional cases they are not both named, but, theoretically, they 
 are always there, or have been afforded legal opportunity to be 
 there. These persons appear before the courts in all sorts of 
 groupings. Sometimes there is one on each side of the case, 
 sometimes one on one side, and several persons, or the whole 
 world, on the other ; sometimes there are several on each side. 
 The rule is, that whoever is to be bound by the decision or judg- 
 ment must be before the court, on one side or the other. 
 
 Persons who are before the court in any capacity are techni- 
 cally called parties. The person who is dissatisfied with existing
 
 462 AMERICAN ELEMENTARY LAW. 
 
 conditions and who wants some relief from them, and applies to 
 the court for this relief, is the actor. He is called the plaintiff, or 
 petitioner, or complainant, or relator, or by any other appropriate 
 name. He against whom the complaint is made is usually called 
 the defendant, or the respondent. If a third person, who is not 
 originally brought into the litigation, has a legal interest in the 
 proceeding, he may come in in many kinds of cases and make him- 
 self a party. He is called an intervener. 
 
 These parties of various kinds bring their differences to the 
 court to be investigated and decided, and have the result author- 
 itatively enforced. These differences always relate to matters of 
 law or fact, or both, and their effect upon the legal rights and du- 
 ties of the respective parties. 
 
 Things. 
 
 Things here have the same meaning as in other connections in 
 the law, and include all existences not looked upon as persons. 
 Usually, however, when regarded as subject to control by a court, 
 they are limited to tangible or corporeal things which may 
 be taken into possession, or such ideal matters as are fixed and 
 continuing, and directly connected with persons, and going 
 to make up status. Status is a condition or standing before the 
 law, having reasonable permanence, an established and continu- 
 ing legal condition, as citizenship, coverture, insanity, etc., which 
 ordinarily cannot be changed by the will of the party interested 
 without the co-operation of the law. 
 
 Subject Matter. 
 
 This is different from both persons and things, in this connec- 
 tion. It means the rights claimed by the several plaintiffs, the 
 wrongs charged against the defendants, and the remedies sought. 
 For example : A and B both claim title to a lot in a city ; B is in 
 possession and refuses to give it up to A ; A sues B for the lot and 
 to have his title declared better than B 's and to get possession of 
 the property. Here A is the party plaintiff, and B is the party 
 defendant. The thing involved is the lot, and the subject matter 
 of the suit is the rights claimed by each party in the lot, 
 the wrong which each charges against the other with regard there- 
 to, and the remedy each desires to obtain by the litigation.
 
 HOW JURISDICTION OVEB A CASK IS ACQUIRED, 463 
 
 Issues. 
 
 These are matters of law or fact affirmed by one party to a suit 
 and denied by the other. One litigant says : ' ' The law is this, and 
 under it I have certain rights;" the other says: "Not so. The 
 law is not as you contend, and you have not the legal right you 
 claim. ' ' This is an issue of law. The litigants may agree upon the 
 law, but one may still contend that a certain fact is true, and ap- 
 plying the admitted law to it, say: "I have certain legal rights." 
 The other replies : ' ' Not so. The law is as you claim, but the facts 
 are not as you contend and for this reason you have not the 
 legal rights claimed. " This is an issue of fact. Both the law and 
 the fact may be in dispute. Here we would have both the above 
 contentions, and issues both of law and of fact in the same case. A 
 matter thus affirmed by one party and denied by the other is 
 called an issue. 
 
 It is the province of the courts to decide such issues authorita- 
 tively. Before they can do this, a number of facts must exist and 
 a number of processes must be gone through. 
 
 Jurisdiction. 
 
 First, the court to which resort is had must have authority 
 from the sovereign to try the questions involved in the suit and to 
 control the parties between whom' these questions are to be de- 
 cided. 
 
 This is potential jurisdiction, authority to act for sovereignty 
 in deciding issues and binding parties. It is derived solely from 
 the sovereign, and can neither be enlarged nor diminished by the 
 parties to a controversy. 
 
 Not only must the court have this delegated power, but the 
 power must be actually applied to and put in operation upon both 
 the subject matter constituting the issues, and the parties to the 
 litigation. This actual exercise of potential jurisdiction is active 
 jurisdiction. In some instances the persons interested in the liti- 
 gation, and the thing about which they desire to litigate, may 
 both be brought fully and completely within the active jurisdic- 
 tion of the court ; if so, the court can hear and determine all the 
 questions involved in or relating to the controversy. In other in- 
 stances the court can not obtain such full jurisdiction over one or 
 the other. If no jurisdiction can be obtained, none can be ex-
 
 464 AMERICAN ELEMENTARY LAW. 
 
 ercised ; if partial, but not full, jurisdiction can be obtained, the 
 exercise of control will be partial only. 
 
 Kinds of Proceedings. 
 
 There are three general elates of proceedings in courts, known, 
 respectively, as proceedings in personam, proceedings in rem, and 
 proceedings quasi in rem. 
 
 The first of these deals strictly with persons and personal obli- 
 gations, and to support the action of the court therein there must 
 be full jurisdiction, that is, both potential and full active juris- 
 diction over the subject matter of the suit and the persons sought 
 to be bound. As no thing is involved specifically, no control over 
 any specific thing need be obtained. 
 
 The second deals directly with a thing or status, and if the 
 court has potential jurisdiction over the subject matter of the 
 suit, and active jurisdiction over such subject matter and the 
 thing, it is not necessary to have the persons interested all 
 brought before it by name or by summons, but the court deals di- 
 rectly with the thing within its jurisdiction, and binds all persons 
 by such action. 
 
 In the third, there must be potential jurisdiction over the per- 
 sons, subject matter and thing involved, but it is not necessary to 
 have complete and full control over either persons or thing. The 
 court deals with the persons, not generally, but only so far as they 
 are concerned in the thing ; and with the thing, not generally, but 
 only so far as the particular parties to the suit are concerned. 
 
 It is apparent that different methods of acquiring active juris- 
 diction over persons, subject matter, and things would be permis- 
 sible in these different proceedings. 
 
 Potential Jurisdiction. 
 
 Potential jurisdiction is always a grant from the sovereign. It 
 can have no other source. It must always exist in every proceed- 
 ing of every kind over the persons and subject matter involved in 
 the litigation, and if a thing is to be directly affected, over that 
 also. 
 
 In establishing a system of courts persons, subject matter and 
 things are considered in apportioning jurisdiction. Sometimes 
 certain courts will be given authority to hear eases to which cer- 
 tain persons are parties, as the Supreme Court of the United
 
 HOW JURISDICTION OVER A CASE IS ACQUIRED. 465 
 
 States, has exclusive jurisdiction over suits between States. 
 Sometimes proceedings in rem can be heard only in a court where 
 the res is located. But subject matter is usually the most impor- 
 tant consideration in apportioning jurisdiction. One class of 
 courts will be authorized to try cases involving certain rights, or 
 certain wrongs, or certain remedies, and another class, suits in- 
 volving others. This is practically the only basis of distribution 
 of judicial power among the courts constituting the present judi- 
 cial system in most of the States. 
 
 Active Jurisdiction. 
 
 This is acquired over the person in two general ways: 
 
 (1) By voluntary submission of the party. 
 
 (2) By compulsory process. 
 
 The first attaches whenever the party, whether plaintiff, de- 
 fendant or intervener, comes before the court, invokes its aid, or 
 takes part in its proceedings. The second is acquired by the court 
 through its proper officers issuing and having served some proper 
 process commanding the person to come before it, at a time and 
 place named, for the purposes designated in the summons. 
 
 Process is an order issued by the proper judicial officer com- 
 manding a designated person to perform a certain act, or forbid- 
 ding him to perform a certain act. It may be either oral or writ- 
 ten. It is usually in writing under the seal of the court. A writ- 
 ten process is called a writ. 
 
 The process by which active jurisdiction over parties to suits is 
 obtained is called citation. It is always written and under seal 
 of the court, if the court have a seal. It commands the officer, or 
 other person to whom it is addressed, to summon the person 
 or persons whose presence before the court is required to ap- 
 pear before the designated court at a time and place named to 
 answer the complaint made against him and present his side of 
 the controversies involved in the case. 
 
 The action of the person to whom the writ is directed in notify- 
 ing the person to be summoned of the pendency of the suit, 
 is called service of the process. Service must always be made in 
 accordance with the command contained in the particular writ. 
 The methods of service are of two kinds : one by notification given 
 to the party to be served in person in a manner prescribed by law, 
 the other, by publication of the citation for a designated length of 
 30
 
 466 AMERICAN ELEMENTARY LAW. 
 
 time in a newspaper or newspapers. The first is called personal 
 service, the other, service by publication. It is customary for ci- 
 tations to be directed to an officer, but if the statute so provides, 
 the process may be directed to a private person having the quali- 
 fications designated in the statute. "When service of a citation is 
 made when the person served is outside of the State from whose 
 court the process issues, it is called extra-territorial service. It is 
 apparent that there may be Various methods of issuing and serv- 
 ing citations. The effects upon the court's power to control the 
 defendant served differ with these differing conditions. 
 
 Every sovereign has very full control over its citizens or sub- 
 jects. It can, consequently, lawfully provide any method of ac- 
 quiring active jurisdiction over them which affords reasonable 
 opportunity to come before the court and have a hearing as to 
 their rights. Citation issued and service had upon a citizen in 
 conformity to the statutes of his State, which affords this fair op- 
 portunity will be good, giving complete active jurisdiction over 
 him, whether the service be personal or by publication within or 
 without the State. 
 
 As to persons not citizens and not resident within the State, the 
 powders of the sovereign are not so great. No complete jurisdic- 
 tion can be gotten over these while without the State, either by 
 personal or public notice. If such persons are within the State, 
 personal service will be good. 
 
 Complete active jurisdiction over a thing is acquired by taking 
 it actually into the custody of the court, through some officer, as by 
 seizing a stock of goods, or taking actual possession of land. A 
 qualified or partial control over a thing may be acquired-by spe- 
 cifically describing it and the rights claimed in it in the pleadings, 
 and submitting these to the court. 
 
 Status is brought within the active jurisdiction of courts having 
 potential jurisdiction in the matter by some person directly inter- 
 ested in it submitting the question of status to the court and ask- 
 ing an adjudication of it. 
 
 Active jurisdiction over subject matter is obtained by the sub- 
 mission of issues to the court for adjudication. A claims certain 
 rights ;B violates them; A wants redress. He goes before the 
 court authorized to adjudicate these matters, and presents them 
 to the court for determination. This invocation of the court's
 
 HOW JURISDICTION OVER A CASE IS ACQUIRED. 467 
 
 powers as to these matters subjects them, the rights, the wrongs, 
 and the remedies, all to the court. It takes control of them all 
 and does in the premises as the law commands. This submission 
 is limited to the matters in good faith sought to be presented to 
 the court ; so that, if there be other controversies between the same 
 parties not included in this invocation, they are not affected 
 thereby. Thus, if A has two notes against B, both due and un- 
 paid, and he sues on one, this subjects all of A's rights and B's 
 liabilities on that note to the active jurisdiction of the court, and 
 authorizes the settlement of all matters between them based upon 
 that note. But this suing upon one note does not bring the other 
 before the court, and the court could not adjudicate anything 
 concerning it. 
 
 If the party complained against has additional matters he 
 thinks the court ought to consider in connection with those sub- 
 mitted by his adversary, he must present them to the court in the 
 manner provided by law. If he does so, and they are proper mat- 
 ters for adjudication in connection with the plaintiff's complaint, 
 the court will take active jurisdiction over them and adjudicate 
 them also. 
 
 Eecapi tula ting and making a practical application of the fore- 
 going doctrines in each of the three kinds of proceedings we find : 
 
 (1) No court can adjudicate a matter unless it has potential 
 jurisdiction over the persons who are parties, over the subject 
 matter of the suit, and over the thing to which these legal rights 
 and duties pertain. This is true in all three kinds of proceedings. 
 
 (2) In proceedings in personam the court must have full ac- 
 tive jurisdiction over the persons and the subject matter. Active 
 jurisdiction over the persons may be obtained either by voluntary 
 submission by the person or by due service of process by the court. 
 Such service may be gotten upon anyone within the State either 
 by personal service or by publication in conformity to the local 
 statutes. Such service may be gotten upon citizens of the State in 
 which the court is held by extra-territorial service, either per- 
 sonal or by publication. Non-resident non-citizens cannot be 
 brought within the active jurisdiction of the court in proceedings 
 of this kind by any sort of extra-territorial service. 
 
 (3) In proceedings in rem the thing or status sought to be de- 
 termined must be within the potential jurisdiction of the court,
 
 468 AMERICAN ELEMENTARY LAW. 
 
 and must be brought within the complete active jurisdiction of the 
 court by seizure of the thing and taking it into the custody of the 
 court pending the litigation, or by actual submission of the facta 
 upon which status is based and request for adjudication. 
 
 In these proceedings regarding things it is not essential that 
 there be any service upon the parties unless this is required by 
 local law. "Where status is involved and no one but the petitioner 
 and the public are concerned, as in naturalization proceedings, no 
 service is necessary. In cases in which some other person is di- 
 rectly interested in the question of status, as in divorce proceed- 
 ings, service of some kind must be had upon such interested party. 
 In divorce cases where both parties are residents within the State, 
 either personal service or service by publication upon the deff-nd- 
 ant is good. According to the great weight of authority, if the 
 plaintiff is a bona fide resident of the State in which the procsed- 
 ings are had, extra-territorial service upon the defendant, 
 whether personal or by publication, is good. According to the de- 
 cision in Haddock v. Haddock, extra-territorial service in divorce 
 cases is not good, at least judgments based thereon are not bind- 
 ing in other States, unless the suit is brought in the Stat? in 
 which the plaintiff was at the time a bona fids resident and 
 in which the marital domicile of the parties is located. 
 
 (4) In proceedings quasi in rem, the court undertakes by its 
 judgment to bind the parties to the litigation only so far as their 
 rights in the thing submitted to the court are concerned, ai d to 
 bind the thing involved in the litigation only so far as these par- 
 ties are concerned, and hence either personal service or servh e by 
 publication is good, whether the party or parties served was 
 within or without the State at the time of the service.
 
 CHAPTER IV. 
 
 PLEADINGS. 
 
 As the business of courts is to hear and determine controversies 
 as to legal rights and wrongs, and to award or withhold remedies 
 as the law and facts of the case may require, some means of pre- 
 senting these controversies must be provided. This means is 
 pleading. On the part of the plaintiff, it is stating to the court 
 the facts which constitute or show his rights in the matter pre- 
 sented, the violation of those rights by the defendant, the injury 
 resulting to the plaintiff and the prayer for the appropriate rem- 
 edy; or, as it is technically called, the plaintiff's cause of action. 
 On the part of the defendant, it is a statement of the reasons why 
 the plaintiff ought not to maintain his suit, or, speaking techni- 
 cally, the defendant's grounds of defense. 
 
 In the earliest stages of legal procedure doubtless all of these 
 statements were made orally after the court had convened. This 
 is still the method in unimportant civil cases and by the defend- 
 ant in criminal cases, but for many years the pleadings for all 
 parties, in all civil cases of importance, and by the State in crim- 
 inal cases, have been required to be in writing. As pleadings 
 are but the embodiments of the controversy between the parties, it 
 is apparent that they must vary with differing controversies; and 
 as controversies of different kinds used to be settled in different 
 courts,' it naturally followed that the pleadings or manner of stat- 
 ing these controversies varied also. These differences in jurisdic- 
 tion of courts, and in remedies, and in pleadings, still remain in 
 the Federal system, and in those of many of the States. In other 
 States these differences of jurisdiction do not exist, and the dif- 
 ferences in pleading are also practically ended. 
 
 Definition of Pleading. 
 
 "We may define pleading as the process by which the several 
 parties to a suit make known to the court and the opposite party 
 th«ir respective contentions in the case; the plaintiff thereby
 
 470 AMERICAN ELEMENTARY LAW. 
 
 seeking to induce the court to give him some remedy against the 
 defendant, and the defendant seeking to induce the court not to 
 do so. 
 
 Manner of Presenting and Joining Issues. 
 
 Tendering Issues. — As the purpose of a suit is to enforce 
 a legal right, and force the defendant to respect it in the future, 
 or make compensation for its violation in the past, it follows that 
 there must be some' rule or rules of law on which the plaintiff 
 bases his claim. If the matter submitted to the court be one about 
 which there is no law, the court is powerless, as it is only author- 
 ized to apply and enforce the law. So it follows that every time 
 a plaintiff comes before the court with a given state of facts, and 
 asks remedy thereon, he necessarily asserts that the rules of law 
 are such that these facts entitle him to the relief sought. This is 
 a tender of issue to the defendant on this asserted rule or rules of 
 law. The presentation of the facts to the court, for its investiga- 
 tion and decision, is also an assertion that the facts are true, and 
 this is a tender to the defendant of an issue or issues of fact. If 
 the plaintiff fail on either of these issues, he can not recover. In 
 justice the defendant should be permitted to controvert either or 
 both of these issues and to deny the plaintiff's propositions of law 
 or his statement of facts, or both. Different systems of procedure 
 differ widely on these points. 
 
 As all persons, and particularly those selected to act as judges, 
 are presumed to know the law, it is never necessary, and rarely 
 permissible, to plead matters of law. So that pleadings tendering 
 issues are statements of facts. The rule is that every fact that the 
 pleader desires the court to consider in determining what it will 
 do must be plead. The court will not go outside of the party's 
 own statement to hunt up facts on which to base or withhold ac- 
 tion in his favor. This is probably the most important rule of 
 pleading, enforced alike in all jurisdiction and under all systems. 
 There are some exceptions to it, however. Conditions which are 
 almost universal need not be plead ; as, in suing on a contract, it 
 need not be alleged that the parties were competent, or the pur- 
 pose lawful. These are true of so large a proportion of agree- 
 ments that these general conditions are presumed as to all, unless 
 the exception be plead and proved. So of the course of the sea- 
 sons, the great thoroughfares of commerce, etc.
 
 PLEADINGS. 471 
 
 In addition to being full, pleadings should be clear, concise, ac- 
 curate, and logical. These are, however, matters of form and are 
 not so essential as fullness. Fullness is not to be confounded with 
 prolixity and verboseness. These are great vices in any composi- 
 tion, and particularly in pleading, and usually are resorted to for 
 lack of definite information and thought. There are also certain 
 formal parts of pleadings which must not be ignored. The court 
 to which it is addressed, the term to which the suit is brought, the 
 names and residences of the parties, unless they are already in the 
 record, should be shown, and also the relief sought, if any. 
 
 Defensive Pleadings. — These are reasons given by the defend- 
 ant why the court applied to ought not to give the relief sought. 
 These may be few or many in a given case. They are divided into 
 general classes, which are not mutually exclusive of each other: 
 (1) Into defenses of law and defenses of fact; (2) into defenses 
 against the particular suit and defenses against the cause of 
 action on which the suit is founded. As said, these classifications 
 are not mutually exclusive. There are legal defenses which only 
 destroy the present suit, leaving the cause of action unsettled, and 
 legal defenses which settle both the suit and the cause of action on 
 which it is based. In like manner there are defenses based on 
 facts which accomplish each of these purposes. 
 
 Defenses based on matters of law are made by demurrer; those 
 based on facts are made by denials, general or special, by matters 
 in confession and avoidance, or by matters of estoppel. Defenses 
 which only settle the particular suit are called dilatory defenses 
 or pleas ; those which go to the whole cause of action, are defenses 
 or pleas in bar. 
 
 A demurrer admits the facts to be as the adverse party claims, 
 but insists that they are not legally sufficient to entitle him to the 
 relief sought. The issue thus joined is always decided by the 
 judge. 
 
 A general denial raises the issue that, whatever be the law, the 
 facts submitted by the adverse party are not true, and there f of 
 he is not entitled to the relief sought. 
 
 A special denial is a denial of some one or more facts set up by 
 the adverse party. 
 
 A plea in confession and avoidance admits that some or all of 
 the facts set up by the adverse party are true, but insists thai
 
 472 AMERICAN ELEMENTARY LAW. 
 
 there are other facts which, taken in connection with those ad- 
 mitted, destroy their legal effect and hence disentitle the plaintiff 
 to the remedy to which the admitted facts would otherwise entitle 
 him. 
 
 A plea in estoppel insists that, whatever may be the truth re- 
 garding the facts alleged by the adverse party, he cannot legally 
 recover on them because by his conduct regarding the matter he 
 has precluded or shut himself off therefrom. 
 
 These defenses of fact, in Common Law courts, are tried by 
 jury ; in Chancery courts, by the judge or chancellor ; and in 
 courts of blended jurisdiction, by either the judge or the jury, as 
 the nature of the case and the action of the parties shall require. 
 Order in Which Pleadings are Filed. 
 
 The first pleading in a case is by the plaintiff. It should con- 
 tain facts which make out a prima facie case, entitling him to the 
 relief sought. The next comes from the defendant, and is in re- 
 ply to that of the plaintiff. If this reply consist only of denials of 
 law or fact, or both, the pleadings close there. If it introduce 
 new matters, the plaintiff may reply to this new matter. If this 
 be only by denials of law or fact, or both, the pleadings close with 
 it, but if it bring in new matter, the defendant may reply to it, 
 and so on indefinitely. The pleadings rarely go beyond two in- 
 struments by each party, and usually conclude with only one on 
 each side. 
 
 These different instruments have different names in different 
 systems. At Common Law the order of filing pleadings and their 
 respective names were as follows: (1) the plaintiff's declaration; 
 (2) defendant's plea or demurrer; (3) the plaintiff's replica- 
 tion; (4) defendant's rejoinder; (5) plaintiff's sur- rejoinder ; 
 (6) defendant's rebutter; (7) plaintiff's sur- rebutter. 
 
 In Equity, the order was as follows: (1) the plaintiff's bill of 
 complaint; (2) the defendant's answer, plea, disclaimer or de- 
 murrer; (3) plaintiff's replication. 
 
 In Texas, they are as follows: (1) plaintiff's original petition; 
 (2) defendant's original answer; (3) plaintiff's first supple- 
 mental petition; (4) defendant's first supplemental answer; 
 (5) plaintiff's second supplemental petition; (6) defendant 's sec- 
 ond supplemental answer; and so on indefinitely, if it be neces- 
 sary.
 
 PLEADINGS. 473 
 
 Under the Codes of the different States the instruments of 
 pleading have different names. In the majority, the first plead- 
 ing filed by the plaintiff is called a complaint, in others it is called 
 a petition ; in all, the first pleading by the defendant is called an 
 answer. In most of these States the pleadings setting up facts, 
 stop here. In a few, the plaintiff is permitted to file a response to 
 the defendant's answer. This is called a reply. In none of the 
 Code States can the defendant file any response to this. 
 
 Number of Defenses. 
 
 In no one respect does the modern method of pleading differ 
 more from the ancient Common Law than in the number of de- 
 fenses which the defendant may make. Formerly, he was confined 
 to one defense, either of law or fact, and no matter how many 
 good reasons there might really exist why the plaintiff should not 
 recover, the defendant could only get the advantage of one of 
 them. This was somewhat modified in the later Common Law 
 procedure, and was practically abrogated in Equity. In practi- 
 cally every State, it is provided that a defendant may make as 
 many defenses as he may have, provided only he present them at 
 the same time and in due order. 
 
 Amendments. 
 
 The Common Law was very rigid in its requirements as to 
 pleading, and very limited in its permission to amend and cure 
 defects in them. This has been very greatly changed in the 
 modern practice, and the danger now seems to be that the stabil- 
 ity of our procedure is somewhat endangered by the ease with 
 which mistakes may be corrected. The rule in modern practice is 
 that defects in any pleading may be cured, as matter of right, by 
 filing an amendment at any time before a designated stage in the 
 trial of the case, and may be cured even after that, if the judge 
 shall think justice and right require. 
 
 Notice of Filing Pleadings. 
 
 The filing of the first pleading by the plaintiff is, under the 
 modern practice, the beginning of the suit; and, unless the 
 defendant enters an appearance in some way, he must be notified 
 in the manner required by law. Telling him of the fact, or other 
 actual notice to him, is not sufficient in actions at Law, though in 
 some Equity proceedings, where the chancellor has already
 
 474 AMERICAN ELEMENTARY LAW. 
 
 granted an interlocutory order, it is sufficient, for some purposes. 
 In most jurisdictions after both parties are before the court, they 
 are expected to keep themselves advised as to its proceedings, and 
 getting leave from the court to file any pleading, and filing it, is 
 all that is required in case of any proceeding. Frequently, even 
 leave from the judge is not necessary. In other jurisdictions no- 
 tice should be given. 
 
 Motions. 
 
 Frequently, in the progress of litigation, it is desired to have 
 the court take some action which is incidental to the main pro- 
 ceeding, as appointing an auditor, or ordering a survey of land, 
 etc. Such action is invoked by an application usually less formal 
 than the pleadings, and called a motion. These are either oral or 
 in writing. Sometimes great particularity is required, and the 
 truth of the matters presented must be supported by affidavit. 
 Each kind of motion is dealt with as justice and expediency seem 
 to require.
 
 CHAPTER V. 
 
 EVIDENCE. 
 
 To enable the court to decide issues of fact correctly, it must 
 have some means of investigating and ascertaining the truth re- 
 garding them. The means by which a fact is proved or disproved 
 is called evidence, and the rules of law governing the securing, in- 
 troduction and effect of evidence constitute the law of evidence. 
 
 These rules relate to four general matters : 
 
 (1) Who must prove ? 
 
 (2) "What must be proven? 
 
 (3) By what means may he prove? 
 
 (4) When is the proof sufficient ? 
 Taking these up in order, we find : 
 
 Who Must Prove? 
 
 He must offer evidence who is dissatisfied with the existing con- 
 ditions. The person conceiving himself to be aggrieved brings his 
 suit to induce the court to give him relief. He states his griev- 
 ance in his pleading, and when the trial comes on must introduce 
 testimony sufficient to establish the truth of his complaint. He 
 therefore takes the initiative in offering evidence. When he has 
 produced testimony sufficient to induce the court to act as he de- 
 sires, he closes. By the introduction of testimony having the fore- 
 going effect he has satisfied himself with the state of the case, but 
 this same process has resulted in dissatisfying his adversary. Be- 
 fore any testimony was given the latter was perfectly willing to 
 submit the case to the court and receive a decision in his favor, 
 because the plaintiff had not proved his case ; but now he can not 
 do so, for the plaintiff has made out his case. Therefore, the de- 
 fendant here takes up the laboring oar and offers his testimony. 
 If he succeeds in overthrowing the case made by the plaintiff, he 
 in turn becomes satisfied with the present record, and the plaintiff 
 dissatisfied with it, and the defendant desists, and the plaintiff 
 begins again. So the process would go on indefinitely, but for
 
 476 AMERICAN ELEMENTARY LAW. 
 
 certain limits placed upon the parties, in the interest of order and 
 expedition of the business of the court. 
 
 Under the old Common Law the pleadings were continued until 
 they were narrowed down to one issue of fact which alone was 
 submitted to the jury. Under these conditions, the foregoing facts 
 were expressed in two rules. The first was, The burden of proof 
 is on him who asserts the affirmative of the issue ; and the second 
 was, The burden of proof never shifts. So long as the procedure 
 forbade the submission of more than one issue these two rules 
 could be enforced without confusion. But as in the modern 
 practice a number of issues may be submitted in the same case to 
 the same jury at the same time, on some of which the plaintiff and 
 on others the defendant holds the affirmative, a different state- 
 ment is now necessary. 
 
 It is still true that as to each issue in a case the burden of proof 
 is on him who seeks benefit from its establishment, so that unless 
 he offers testimony prima facie sufficient to support his conten- 
 tion on that issue, it will be decided against him. If he does make 
 out a prima facie case as to the particular issue, the necessity of 
 overcoming this by his adversary at once arises, and either he 
 must introduce testimony to disprove the prima facie case or that 
 issue will be decided against him. If he succeeds in accomplish- 
 ing this, he thereby makes it necessary for the other party 
 to strengthen his case on this point. This he can do only by in- 
 troducing further proof. It is clear that this is a process in which 
 the necessity of introducing further evidence changes from time 
 to time from the one party to the other. In this sense the burden 
 of proof as to each issue does shift from one party to the other. 
 But after all the testimony on this issue is in, it is still incumbent 
 upon him who seeks benefit from the issue to satisfy the court that 
 his contention as to this issue is correct. So that the burden of 
 ultimately proving the truth of each issue at all times rests upon 
 him who seeks benefit therefrom. In this sense the burden of 
 proof as to any issue never shifts from him who will profit by its 
 establishment. 
 
 The foregoing statements are equally applicable to proving a 
 case considered as a whole. He who is dissatisfied with existing 
 conditions, and on that account brings suit to obtain relief, must 
 show such facts as prima facie entitle him to relief. "When this is
 
 EVIDENCE. 477 
 
 done the burden of disproving this prima facie case passes over to 
 the party complained against. He must now show facts which de- 
 stroy the legal effect of the plaintiff's prima facie case. He may 
 do this by disproving the facts relied upon by the plaintiff, or by 
 proving additional facts which show the plaintiff not entitled to 
 relief. If he succeeds in either, the plaintiff must meet this sit- 
 uation as to the whole case and introduce facts strengthening his 
 contention. After all the evidence is in the plaintiff must be able 
 to show that he is entitled to relief upon the whole record. Thus 
 it is seen that during the progress of the trial the necessity for 
 introducing testimony, not only as to particular issues but as to 
 the whole case, has changed from time to time from one party to 
 the other so that in this sense the burden of proof has shifted from 
 time to time. Still after all the testimony is in the necessity for 
 making out his case, or rather of satisfying the court that he has 
 made it out, rests on the plaintiff. In this sense, the burden of 
 proof never shifts. 
 
 What Must be Proven? 
 
 The party offering evidence must prove the substance of his 
 pleading. He is not required to prove every detail of his pleading, 
 but such facts as are, in substance, legally equivalent to it. Facts 
 are legally equivalent if, applying the same rules of law to each, 
 they establish the same legal right and the same legal wrong and 
 entitle to the same remedy. If they tend to show different legal 
 rights, or different violations, or entitle to different kinds of rem- 
 edy, they are not legally equivalent. 
 
 Means of Proof. 
 
 This opens up by far the largest field in the law of evidence. 
 Under it come all rules : 
 
 (1) As to the instruments through which evidence may be in- 
 troduced, witnesses and their qualifications, written documents 
 and their admissibility, and physical things, or real evidence, or 
 representatives of them, as photographs, etc. 
 
 (2) The nature of the the matters which may be introduced. 
 
 (3) The relation of these facts to the matter in controversy. 
 
 Witnesses. — A witness is one who gives evidence in a legal pro- 
 ceeding, subject to the penalties of the law for false swearing. 
 The general rule is that all persons are competent witnesses. The
 
 ■ITS AMERICAN ELEMENTARY LAW. 
 
 several exceptions are: (1) Persons who have not sufficient intel- 
 lect to relate transactions as to which they are interrogated, or 
 who do not understand the obligation of an oath; (2) persons who 
 have been convicted of a felony and who are unpardoned. At 
 Common Law, interest in the suit and lack of religious belief dis- 
 qualify, and these remain in all States in which they have not 
 been changed by statute. This has, however, been done in most 
 States. There are other exceptions in particular kinds of cases 
 and as to particular persons but these we cannot discuss. 
 
 At Common Law witnesses were required to be sworn and thus 
 to call upon God to attest the truthfulness of their testimony. 
 This is still true in all the States which have adopted the Common 
 Law unless it has been changed by statute. In a number of the 
 States statutes have been enacted requiring witnesses to be sworn 
 in the way most binding upon their consciences and subjecting 
 them to the pains and penalties of perjury, whether the oath or 
 promise of truthfulness be made with or without reference to 
 God's attestation. 
 
 Questions as to the competency of witnesses are decided by the 
 judge. The credibility of witnesses and the weight to be given to 
 oral testimony are matters for the jury. Ordinarily the construc- 
 tion and legal effect of written evidence is for the judge, though 
 the authenticity and genuineness of the papers, if properly put in 
 issue by the pleadings, is decided by the jury. 
 
 Testimony from witnesses must be given by the witnesses them- 
 selves. In the earlier Common Law practice it was required that 
 the witness himself should be brought before the court. He was 
 then sworn and examined in open court before the judge and 
 jury. This is still reauired in criminal cases, with some few 
 deviations in interest of the defendant. In courts of Equity, the 
 witnesses give their evidence in depositions. This has now been 
 extended to Common Law courts, until the rule now is that the 
 testimony of any witnesses in a civil suit can be taken and used, 
 subject to a few exceptions varying in the different courts. 
 Depositions are written statements made by a witness out of 
 court and under oath, in response to questions propounded to him 
 by the parties to a cause. The methods of asking and answering 
 the questions differ, but the foregoing are the distinguishing 
 characteristics. 
 
 The party introducing a witness before the court examines him
 
 EVIDENCE. 479 
 
 first, eliciting from him such facts as the witness knows and the 
 party desires. When he is through, the adverse party takes the 
 witness and cross-examines him on the matter drawn out in the 
 first examination, and then the party introducing him is afforded 
 opportunity to examine him on any matter on which he may 
 seemingly have contradicted or modified his former statements, 
 and on any new matter which the second party may have elicited. 
 Here the examination closes unless, for good reason, the judge 
 sees fit to extend it. Each witness is dealt with in this way. 
 Written instruments are offered by the party desiring them. 
 Their genuineness must be shown, either under some Common 
 Law or statutory rule, or they will be excluded, on objection. 
 
 If one party attempt to prove any fact not admissible for any 
 reason, or by any improper way, the other party makes his objec- 
 tion, stating his reasons, and the judge decides the question. The 
 person against whom the decision is given may except to it and 
 save the point for revision on appeal. 
 
 Written Instruments. — There are four general classes of docu< 
 ments whose contents or effect may come up for consideration. 
 These are : 
 
 1. Documents which are the sole repositories of matters which 
 the law says must be evidenced by writing of designated kinds 
 and characteristics. 
 
 2. Documents which are public and authentic repositories of 
 specific matters, and which may be resorted to as secondary evi- 
 dence in specific cases, but are not exclusive sources of evidence 
 of the matters contained therein. 
 
 3. Those papers which are repositories of matters of agreement 
 between parties to them and their privies, voluntarily chosen by 
 such parties for that purpose, the matters therein evidenced being 
 of such nature that they could have been proved by parol but for 
 such choice of the parties. 
 
 4. All written instruments whose contents and effect may be- 
 come material in the investigation of any matter before a court, 
 and which do not come within one or the other of the preceding 
 classes. 
 
 The first of these general classes is divided into several sub- 
 classes, the most important of which are : 
 
 (1) The official records evidencing the acts of public officers in 
 which the public, as such, is directly interested. This class
 
 480 AMERICAN ELEMENTARY LAW. 
 
 includes all records of the executive and legislative departments 
 which are public in their nature. 
 
 (2) Official records of public acts of public officers in which 
 certain private parties are directly and primarily concerned, but 
 in which the public also has a material concern and interest. 
 
 This class includes all records and file papers of judicial pro- 
 ceedings. 
 
 (3) Private writings evidencing private rights of such a char- 
 acter that the law says they can only be evidenced in that manner. 
 
 This class includes all private writings evidencing contracts 
 and rights which the law requires to be evidenced by written in- 
 struments. They are mostly those contracts which the Statute of 
 Frauds requires to be expressed in writing. They are pricipally 
 of the f ollowing classes : 
 
 (a) Contracts by which one undertakes to bind himself for the 
 debt, default, or miscarriage of another. 
 
 (b) Contracts not to be performed within a year. 
 
 (c) Contracts by an executor or administrator to bind himself 
 for any debts of the estate represented by him. 
 
 (d) Contracts creating an estate in lands for more than one 
 year. 
 
 (e) Reservations of rights in chattels loaned to another and 
 permitted to remain in his possession for more than two years. 
 
 (f ) Ante-nuptial contracts, and some others of infrequent ap- 
 plication. 
 
 (4) Official records of official acts of officers of political subdi- 
 visions of the State, such as counties, municipalities, towns, etc. 
 
 Under this are included records of county officers, as county 
 surveyor, assessor, etc. ; of cities and towns, such as minutes of 
 city council, city assessor, etc. 
 
 The second of these general classes embraces: 
 
 (1) Registers of deeds and other private papers affecting pri- 
 vate rights, kept, under the provisions of law, by public officers. 
 
 (2) Official registers of facts respecting personal status, a." 
 births, marriages, rolls of soldiers, etc. 
 
 (3) Records required by law to be kept by private persons re- 
 garding matters of a quasi-puhYic character, as records of corpo- 
 rate meetings of railroad compauies, and other guasi'-public cor- 
 porations.
 
 EVIDENCE. 481 
 
 The third of these general classes embraces all those instru- 
 ments which private parties have prepared and executed in order 
 to show the agreement which they have reached, or fact to which 
 they have assented, when such action was voluntary on their part; 
 that is, when the transaction was not such as the law required to 
 be in writing. 
 
 The fourth class indicates its scope sufficiently without further 
 elucidation. 
 
 Genuineness Must be Proved. 
 
 No paper belonging to any of these classes can be received in 
 evidence unless its genuineness and authenticity is proved accord- 
 ing to the rules of law applicable thereto. 
 
 If the paper is a public record it may be proven by a duly au- 
 thenticated copy. The attestation and authentication, if the 
 record is one existing in the State in which the copy is to be used, 
 must be made according to the requirements of the local law. If 
 the record exists in some other State, it must be authenticated 
 and attested in compliance with the act of Congress. 
 
 If the paper is a private one, its genuineness may be proven ac- 
 cording to the local law. These laws usually admit of two meth- 
 ods ; one, as prescribed by the local statutes, and the other, as at 
 Common Law. The local statutes cannot be given. At Common 
 Law, if the paper has no subscribing witnesses its execution may 
 be proven by any one who saw the party executing the instrument 
 sign his name thereto, or by proof of the genuineness of the sig- 
 nature to the instrument by any one who is familiar with the 
 hand writing of the party whose name is signed and can swear to 
 its genuineness. If the paper has a subscribing witness or wit- 
 nesses, its execution must be proved by one or more of the wit- 
 nesses if they are living, and within the jurisdiction of the court. 
 If all the witnesses are dead or inaccessible, the paper may 
 be proven by proving the genuineness of the signature of the wit- 
 nesses in either of the methods above indicated with reference to 
 unwitnessed papers, or if this cannot be done, by proving the 
 handwriting of the party executing the paper as above indicated. 
 
 If the instrument is thirty years old or over, comes from the 
 proper custody, and is attended with circumstances corroborative 
 of its genuineness, it is presumed to be genuine and is received in 
 evidence without further proof, subject to rebutting evidence as 
 to its authenticity. 
 31
 
 482 AMERICAN ELEMENTARY LAW. 
 
 Best Evidence Rules. — The law requires the production of the 
 best evidence of which the case is, in its nature, susceptible, and 
 no other evidence is ever received unless it be brought within 
 some positive rule of law providing an exception to or relaxation 
 of this rule. 
 
 This doctrine has application in those cases in which the in- 
 quiry involves the contents and legal effect of written instruments. 
 
 Rule 1. — A written instrument is the primary and exclusive 
 means of proving its contents. Other evidence of such contents, 
 either written or parol, is never received unless it be brought 
 within some positive rule of law providing an exception or relax- 
 ation of this rule. 
 
 It would more accurately express the present state of the 
 law to restrict the rule announced above to private writings, and 
 to make another to the effect that public documents of all sorts 
 may be proved by properly attested and authenticated copies, the 
 method of attestation or authentication being determined in each 
 State by the law of that jurisdiction. 
 
 This would save numerous exceptions and relaxations of the 
 rule as announced, but the books are too full of the old formulae to 
 permit so radical a departure ; hence I give you the rule as above. 
 
 Rule 2. — The legal effect of a written instrument must be de- 
 termined by its own terms, and extraneous evidence is not admis- 
 sible to change such legal effect. Therefore, evidence tending to 
 change such legal effect by varying the terms of the instrument, 
 explaining such terms, giving to them, or any of them, a meaning 
 different from the ordinary legal interpretation thereof, adding 
 other terms thereto, or eliminating any of those used therefrom, 
 or by any other means, is never to be received unless it be brought 
 within the operation of some positive rule of law providing an ex- 
 ception or relaxation of the rule here stated. 
 
 To state the two rules together concisely : The written instru- 
 ment is the best evidence of its contents, and the contents of the 
 instruments are the best evidence of its legal effect. 
 
 These rules relate to the contents and legal effect of the instru- 
 ment, and have no application in instances in which the mere ex- 
 istence of the paper may be involved incidentally or collaterally. 
 
 Relaxations of Rule 1. — There are numerous relaxations of the 
 rule that the written instrument itself is the primary and exclu-
 
 EVIDENCE. 483 
 
 sive means of proving its contents. These are based on considera- 
 tions of convenience and necessity, or of public policy. They may 
 be classified as follows : 
 
 (1) Relaxations based on the nature of the writing. 
 
 (2) Relaxations based on locality and possession of the instru- 
 ment. 
 
 (3) Relaxations based on loss or destruction of the instrument. 
 
 (4) Relaxations based on connection of the paper with the lit- 
 igation. 
 
 These are of sufficient importance to require more detailed con- 
 sideration. 
 
 Relaxations hosed on the nature of the writing. — This embraces 
 all those cases in which the physical conditions render it imprac- 
 ticable to produce the original writing, as written inscriptions on 
 walls, tombstones, and other like heavy and immovable substances. 
 In such cases, the writing may be proved by parol testimony. 
 
 Also those cases in which the writings are scattered over vol- 
 uminous books and records, or are themselves voluminous and of 
 a kind as to which expert testimony would be admissible. Here 
 the expert may examine the writing and give, by parol, the result 
 of his investigations. 
 
 Also those in which the public and physical inconvenience com- 
 bine to render production of the original impracticable, as in the 
 case of public records, or voluminous records of more private na- 
 ture. In all such cases secondary evidence is admissible; the 
 statutes of each State provide the conditions. 
 
 Under these Statutes all public records of public officers in the 
 several States may be proved within the respective States by 
 copies made by the official custodian thereof, and duly certified 
 by him to be true and correct, such certificates being attested by 
 his official signature and by the seal of his office, if he has a seal. 
 This doctrine embraces legislative, executive, and judicial rec- 
 ords, and file papers in judicial proceedings. 
 
 Legislative and executive records may be proved also by copies 
 published by authority. 
 
 In a few instances, in which the records are voluminous, the 
 facts simple, and no great liability to mistake exists, the officer 
 may certify that a matter appears of record, or is shown by the 
 record, without giving a copy.
 
 484 AMERICAN ELEMENTARY LAW. 
 
 If the record be one of another State of the Union, the matter 
 is regulated by the statutes and Constitution of the United States. 
 
 This relaxation also includes records of private corporations, 
 etc., copies of which, duly attested by the proper corporate officer 
 and seal of the corporation, may be admitted for or against the 
 the corporation. 
 
 Relaxations Based on Locality and Possession of the Paper. — 
 This involves all cases in which the private paper exists, but is 
 beyond the jurisdiction. (1) Outside of the United States. 
 (2) Outside of the State, but in the United States. (3) Outside 
 the county in which the court is held, but in the State. 
 
 In all of these cases the law is practically the same. The party 
 desiring to use secondary evidence must show to the court that he 
 has used all the means which the law places at his command to 
 procure the testimony; but if, having done all he can to obtain 
 the testimony he has failed, secondary evidence will be received. 
 
 Relaxations Based on Loss or Destruction of Instrument. — 
 Where it is claimed that an instrument is lost or destroyed, the 
 party offering secondary proof must show that there was such a 
 paper; that it was genuine; and that he was not legally responsi- 
 ble for its nonproduction. The last he can do by proving that he 
 had nothing to do with its loss or destruction ; or, if he did, that 
 the circumstances are such as to to acquit him of suspicion of sup- 
 pressing the testimony by so doing. Having done this, he must 
 prove its contents as accurately and fully as he can. 
 
 Relaxations Based on the Connection of the Paper urith the 
 Litigation and with the Parties to It. — If the paper is directly in 
 issue and within the jurisdiction of the court, but in the posses- 
 sion of one not a party to the suit, to entitle the party to intro- 
 duce secondary evidence, he must also have exhausted his legal 
 means of procuring the paper. In case of ordinary witness, 
 within the jurisdiction of the court, he should serve him with a 
 subpoena duces tee ion, which is a command from the court where 
 the case is pending to attend the trial of the case and bring the 
 paper with him. If the witness cannot be compelled to attend 
 by subpoena, as a female, a sick or aged person, a nonresident of 
 the county, etc., effort should be made to take his deposition and
 
 EVIDENCE. 485 
 
 have the paper attached. Whenever the proper effort has been 
 made and the paper is not produced, secondary evidence is ad- 
 missible. If the witness attends, but declines to furnish the 
 paper to be filed and used in evidence, if the paper be his prop- 
 erty and neither party to the suit has any property in it or direct 
 interest in it, the court will not compel the party, over his ob- 
 jection, to part with his property, and will either permit it to be 
 examined by the jury and a copy left and the original returned 
 to the owner, or will permit secondary evidence in the first 
 place and not use the instrument at all. If the instrument be- 
 longs to the party to the suit and is unlawfully in the possession 
 of the witness, and this fact is manifest to the court, the court 
 will compel the party to permit the paper to be used in evidence. 
 
 If -the paper is directly in issue but in the possession of the ad- 
 verse party, the means provided by law is to give notice to such 
 party to produce the paper. This notice is not necessarily an offi- 
 cial process, though it may be given through the officers of the 
 court. It is usually given by the party or his attorney. It must 
 describe the paper desired with reasonable accuracy; must be 
 given to the party having it in possession or control a reasonably 
 sufficient time before the trial to enable the party to procure and 
 produce it. The instrument cannot be demanded until the party 
 desiring it enters on his case. If it is produced, its genuineness 
 does not have to be proved, for it is practically admitted by both 
 parties; if it is not produced, the party desiring the secondary 
 evidence must prove the existence and genuineness of the paper, 
 and then must show its contents as accurately and fully as he can. 
 
 If the paper is a private one between parties other than those 
 litigating, and is not directly in issue in the case, the rule as to 
 the paper being the best evidence of its contents is not so strictly 
 applied. A number of authorities say that it is not to be applied 
 at all. The better considered cases, however, hold that the spirit 
 of the rule, but not its letter, will be applied, and if the circum- 
 stances were such as to charge the party with notice that such evi- 
 dence would be needed and the paper could have been procured 
 by him by the use of reasonable diligence, after he had such no- 
 tice, secondary evidence will not be admitted; but unless these 
 conditions exist such proof will be heard.
 
 486 AMERICAN ELEMENTARY LAW. 
 
 Unless the circumstances of the case bring the offered facts 
 within one or the other of the preceding instances of relaxation, 
 and compliance with the prescribed preliminaries are shown, no 
 evidence as to the contents of the paper can be offered except the 
 paper itself. 
 
 Exceptions to Rule 2. — The rule that the contents of a written 
 instrument are the best evidence of its legal effect also has some 
 real exceptions. There are also some instances in which parol 
 testimony is received that are often treated as exceptions to this 
 rule, which, upon closer inspection, are found not to be exceptions 
 but matters outside of the rule to which it has no application. 
 
 The real exceptions exist in those cases in which the parties are 
 excused from producing the written instrument and are permit- 
 ted to prove the facts evidenced thereby by parol, or those 
 in which, though the instrument is in evidence, parol testimony 
 may be received of facts the effect of which is to modify the in- 
 strument in some regard and give to it a different interpretation, 
 meaning, or legal consequence than it would have if left to speak 
 entirely for itself. 
 
 Under these real exceptions parol testimony will be received in 
 the following cases : 
 
 (1) When the official character of a person is not directly in 
 issue but arises incidentally ; parol evidence will be received to 
 show that he acted and was recognized as such officer without re- 
 quiring the production of his commission. 
 
 (2) "When a party is in fact an agent of another and has 
 entered into a written contract in connection with the business of 
 his principal, but in his own name, parol proof may be received 
 as to the fact of agency, although this makes the contract binding 
 on parties not mentioned therein. 
 
 (3) The real consideration of a contract may be proved by 
 parol although it is different from that set out in the paper itself. 
 This exception does not extend to cases in which the real or re- 
 cited consideration consists of promises or undertakings. This 
 would be to change, not the consideration only, but the agreement 
 itself. 
 
 (4) "Words or phrases used in a contract relating to a particu- 
 lar business may be explained by parol testimony showing their 
 meaning according to the custom and usuage of the particular
 
 EVIDENCE. 487 
 
 business in the locality in which the contract was drawn. No cus- 
 tom or usage which is contrary to any rule of law or any settled 
 rule of legal construction can ever be shown. 
 
 (5) A written contract which contains no conditions may be 
 shown by parol never to have gone into effect because it was not 
 to be operative until the happening of some event which has 
 never taken place. 
 
 (6) In contracts of sale of personal property, facts from which 
 the law implies a warranty of quality may be shown by parol 
 though the written contract is silent on that subject. 
 
 (7) Receipts for money may be explained, modified, or contra- 
 dicted by parol. 
 
 (8) An instrument appearing on its face to be an absolute deed 
 may be shown by parol to be a mortgage. 
 
 (9) Facts creating a resulting trust may be shown by parol. 
 
 Parol testimony is often received in connection with written in- 
 struments to show that there is in fact no contract between the 
 parties, or to prove such facts as are necessary to make the con- 
 tract operative by identifying the matter to which it relates; or 
 to prove additional agreements relating to the same thing or sub- 
 ject matter partially covered by the written contract, but which 
 were not understood nor intended by the parties to be covered by 
 the writing. 
 
 It is under the first of these doctrines that parol testimony is 
 received to show mutual mistake of the parties which does not 
 contradict or vary the terms of the contract but establishes the 
 fact that no contract ever exists. Proof of facts showing fraud 
 or duress are received on the same principle. The effect of this 
 testimony is to show that there was never genuine agreement and 
 consequently that no real contract ever existed. 
 
 Under the second of these doctrines parol testimony is received, 
 not to destroy nor to modify the contract, but to give it real effect 
 according to the real intent of the parties. Thus, if A buys 
 a horse from B and receives a bill of sale for him, and B has two 
 horses, to each of which the description in the bill of sale is 
 equally applicable, parol testimony showing which horse in fact 
 was sold only makes certain and effective the agreement between 
 the parties.
 
 488 AMERICAN ELEMENTARY LAW. 
 
 The third doctrine, by its own terms, is outside of the rule. 
 Here the party offering the parol testimony recognizes fully the 
 terms and effect of the written contract, but says in addition to 
 that agreement that there were other agreements closely related 
 to but not covered by nor contradictory to that which ought to be 
 enforced. 
 
 Demonstrative or Real Evidence. — This brings us to the con- 
 sideration of the use of things as evidence. If the inquiry 
 involves the existence or present condition of some material thing, 
 the most direct and logical evidence conceivable is the thing itself. 
 This is partially recognized by the law, and in many cases such 
 evidence is received. It is under this rule that the instrument 
 with which crime is alleged to have been committed, as a gun or 
 knife, or the garnments worn by the party at the time of injury 
 showing the effects of violence, etc., may be brought before the 
 court and shown the jury. Many similar instances could be given. 
 
 The full force of the doctrine is, however, much limited by 
 other considerations. Among these are: 
 
 (1) Impracticability, and inconvenience to the court and jury. 
 
 (2) That the party is not confronted with the witness, and has 
 no opportunity of cross-examination. 
 
 (3) Impossibility of making any accurate record, or furnishing 
 to the appellate court any complete transcript of what took place 
 and was considered in the trial in the court below. 
 
 (4) When exhibition of the person is not voluntary, but is 
 sought to be compelled, violation of sanctity of the person of the 
 one compelled to make the exhibition, and compelling one to give 
 evidence against himself. 
 
 (5) Immodesty and impropriety of the proceeding. 
 
 (6) Arousing prejudice by such exhibition. 
 
 (7) Arousing sympathy by the exhibition. 
 
 Different courts deal differently with these several objections. 
 Anciently, such evidence was received in many cases ; later, it be- 
 came less frequent ; but, later still, it seems to be gaining ground. 
 
 The trend of the modern authorities seems to be that, if there 
 be a material thing which can be produced before the court and 
 its condition is reasonably calculated to throw light on the matter 
 in controversy, it will be received and considered. But, if the 
 dispute involve a locality or something which can not be brought
 
 EVIDENCE. 489 
 
 before the court, the judge and jury will not be compelled, at the 
 request of either party, to leave the courtroom and make an in- 
 spection ; though, if all the parties to the suit agree freely and 
 without compulsion for the court to do so, and this is done, it will 
 not be error. Also, if the controversy involves the condition of 
 the body of a person, the person himself may exhibit the part in- 
 volved before the court and jury, provided the exhibition is not 
 immodest and indecent, but that he can not be compelled to make 
 such exhibition at the demand of the adverse party. Some courts 
 claim the power to appoint one or more physicians to make an ex- 
 amination of the person and testify as to the result; others dis- 
 claim any such power. How this last point will finally be decided, 
 it is impossible to tell at this time. 
 
 Closely akin to the foregoing subject is the use of material rep- 
 resentations of material things in evidence. This is very fre- 
 quently done, but always on condition that proof be offered show- 
 ing the correctness and accuracy of the representation. The most 
 frequent illustration of this doctrine is in the use of maps or plots 
 of localities which are involved in the issues before the court, as 
 in cases of location of lands, boundaries, and of books in unlawful 
 interference with copyrights, etc. Models of bridges and other 
 structures are often used. With the art of photography there 
 arose a new occasion to apply old rules, and many interesting de- 
 cisions have been made as to the admissibility of such representa- 
 tions. The present holding is that the photograph is not prima 
 facie evidence of its own correctness, and hence is not admissible 
 without proof as to its accuracy and reliability; but when this is 
 proved, the photograph will be received. The same rule obtains 
 as to X-ray pictures.
 
 CHAPTER VL 
 
 EVIDENCE (CONTD.) 
 
 Nature of the Matters Which May be Introduced. 
 
 Facts. — The first rule here is that only facts are to be received. 
 Opinions, inferences and suppositions are to be excluded. Facts, 
 in this connection, are matters which are within the personal 
 knowledge of the witness, which have come to him directly 
 through the use of his senses at the time the matter transpired. 
 If the witness claims to have such knowledge, and the matter is of 
 such kind that it may be apprehended through the senses, it is a 
 fact, within this rule, without reference to its truth or falsity. 
 
 To the rule excluding opinions there are some exceptions. The 
 first is in behalf of the opinions of experts. Experts are persons 
 who, from previous study and experience, have more than ordi- 
 nary information on special subjects. These subjects must be 
 such as are not open to ordinary observation, but require peculiar 
 training and skill to understand. Persons possessing these pecul- 
 iar qualifications are permitted to give their opinions as to the 
 matters within their special sphere of knowledge. These opinions 
 may be based on facts coming within the knowledge of the expert, 
 or he may have facts detailed to him hypothetically and be asked 
 his expert opinion on them. 
 
 The second exception is as to nonexperts, that is, ordinary wit- 
 nesses. The rule as to these is that they can not give opinions, but 
 must state the facts within their knowledge, and let the jury draw 
 all inferences. In the ease of the expert, he is supposed to be 
 better qualified than the ordinary juror to make correct deduc- 
 tions in his special line; but, with the nonexpert, no such pre- 
 sumption holds. He and the jurors are supposed to be on an 
 equality as to this. So the exception in his case is based on a dif- 
 ferent reason. In some matters, it is impossible for any one to 
 convey to another all the impressions received by him. These in- 
 communicable impressions, and the facts constituting them, are 
 often potential in determining the quality of conduct. In such
 
 EVIDENCE. 491 
 
 ease, the nonexpert witness gives the facts in his mind as far as he 
 can, and then is permitted to express his opinion, based on the re- 
 lated facts and those accompanying them which he is unable to 
 reproduce. 
 
 Let us take, as an example, a case in which the sanity of a 
 person is involved. This is a matter as to which there is special 
 information and skill. One who has made a specialty of mental 
 disease, if he knows the person and has had opportunity for ex- 
 amination and treatment, can testify as to the facts, and, in addi- 
 tion, give his expert opinion as to the mental condition. If he 
 does not know the person, he can stay in the courtroom while the 
 trial is progressing, and give his opinion from the facts as 
 detailed by the witnesses. Or, if he has not heard the testimony, 
 he may be asked, if certain facts be true, what his opinion is. 
 Thus, an expert can give his opinion in either of three ways. A 
 nonexpert can not give his opinion except on facts within his own 
 knowledge. That is, if he knows the person, he may tell all he has 
 seen, heard or noticed of his conduct, so far as he may be able, and 
 if he has had good opportunity for observation he can then give 
 his opinion as to the mental condition. So in other similar mat- 
 ters. 
 
 There are other statements that may be received in evidence 
 which, in their nature, are largely matters of opinion. Take evi- 
 dence as to the value of property of ordinary kinds. This can 
 rarely be reduced to a certainty. In a few instances, in which the 
 thing can be strictly classified and has a regular market price, as 
 cotton or grains, this can be done ; but, usually, there is no fixed 
 market price for the particular thing in controversy. In such 
 cases, witnesses who are shown to have fair knowledge of the 
 thing and selling prices of things of like kind at the time and 
 place to which the inquiry relates, may state their estimates. 
 
 Classifications of Evidence. — There are a number of different 
 rules regarding facts which may be received in evidence. That 
 these may be understood and applied, it is well to follow some of 
 the legal classifications of the subject as follows : 
 
 (1) "When classified with reference to its sources, evidence is 
 divided into original and hearsay. 
 
 (2) With relation to its nature, into primary and secondary. 
 
 (3) With reference to its form, or the means through which it
 
 492 AMERICAN ELEMENTARY LAW. 
 
 is presented to the court, into parol, written, and real or demon- 
 strative. 
 
 (4) "With reference to its connection with the matter to be 
 proved, into direct and circumstantial. 
 
 (5) "With reference to its conformity to testimony already in 
 the the record, into contradictory and corroborative. 
 
 (6) "With reference to its repetition of what is already in the 
 record, into independent and cumulative. 
 
 It is evident that these several groupings are not mutually ex- 
 clusive. 
 
 Original and Hearsay. — Original evidence is that given by 
 a witness, as of his own knowledge. It represents that which the 
 witness claims to have experienced or to have observed himself. 
 Its value and weight depends on the credibility of only one per- 
 son. 
 
 Hearsay evidence is that given not as of the witness' own 
 knowledge. The fact sought to be established thereby did not 
 come within the experience or observation of the witness himself 
 but of some other person who has made statements in the witness' 
 presence reciting certain matters involved in the controversy and 
 the witness repeats these statements for the purpose of proving 
 that the matters recited therein are true. Hearsay testimony thus 
 necessarily involves the credibility of two witnesses ; first, that of 
 the party making the statement in the presence of the witness, 
 and second, that of the witness who undertakes to repeat it for the 
 purpose of showing the truth of the matters recited. 
 
 Hearsay does not include all repetitions of statements made by 
 others. "When the purpose is simply to prove that a certain state- 
 ment was made by a certain party at a certain time, and not to 
 prove the truth of the matter contained in the statement, the 
 testimony is not hearsay. 
 
 It must be borne in mind that the purpose of evidence is to de- 
 velop the truth. Those sources and means of information which 
 are most directly connected with the facts sought to be proved are 
 first to be resorted to and exhausted before the less satisfactory 
 aids can be invoked ; hence, original evidence is always preferred 
 to hearsay, and the latter is rarely admitted until it is reasonably 
 certain that the former cannot be adduced as to the particular 
 point under investigation. Even when it is shown that original
 
 EVIDENCE. 493 
 
 evidence cannot be procured it by no means follows, that hearsay 
 will be admitted, for even under these circumstances, the admis- 
 sion of hearsay is exceptional. The rule is that he who is unable 
 to procure original evidence to sustain his contention must abide 
 by the result. This is not an arbitrary rule without sanction of 
 justice and support of reason but is founded on sound principle. 
 Among the strong reasons urged against hearsay are the fol- 
 lowing : 
 
 (1) It introduces into the case a double opportunity for unin- 
 tentional or willful falsity. The credibility of two witnesses has 
 to be passed on ; this involves as to each of these the questions as 
 to meaning, character, capacity, motive, opportunity, etc. 
 
 (2) The party whose statement is repeated in making it was 
 not subjected to the same processes for securing care and exact- 
 ness in his statement, nor are his motives to confine himself 
 strictly to the truth so great. 
 
 (A) He most frequently has no idea at the time of making the 
 statement that there is any especial importance to be attached to 
 it, or any special reason for him to be careful as to his words, or 
 that serious consequences are likely to follow therefrom. 
 
 (B) He does not have his conscience bound by an oath. 
 
 (C) He is not subject to punishment for perjury. 
 
 (D) He cannot be cross-examined. 
 
 (3) The judge and the jury do not have the same opportunity 
 to pass upon the credibility of the witness as they would if he 
 were before them in person, and they could observe his conduct, 
 bearing, etc. 
 
 These reasons are sufficient to sustain the general rule of the 
 law that hearsay is not to be received, and to compel the party 
 desiring to introduce it in any particular case to show some af- 
 firmative authority for so doing. 
 
 Primary and Secondary. — Primary evidence is that which the 
 nature of the fact offered to be proved shows is the natural and 
 first means by which such fact is susceptible of proof. 
 
 Secondary evidence is that which in itself suggests that there is 
 a better and more direct means by which the fact offered to 
 be proved, might be proved. 
 
 It is upon the distinction between primary and secondary evi- 
 dence that the so-called best evidence rule is based. This rule is
 
 494 AMERICAN ELEMENTARY LAW. 
 
 that every fact must be proved by the best evidence of which it is 
 in its nature, susceptible of being proved. This rule is both in- 
 clusive and exclusive requiring the production of the best of pri- 
 mary evidence, and excluding secondary. 
 
 This rule has its most frequent application with reference to 
 the contents and effect of written instruments, as to which it has 
 been considered at some length under Means of Proof. 
 
 The rules pertaining to the form of evidence and the means 
 through which it is presented have already been considered. 
 
 Direct and Circumstantial. — The distinction between direct 
 and circumstantial evidence is based upon the connection of the 
 proposed fact with the issues in the case. Direct evidence is that 
 which tends immediately to prove or disprove some fact in issue 
 in the case. Circumstantial evidence is that which tends to prove 
 or disprove the existence of some fact the truth of which is not 
 directly in issue but the existence or nonexistence of which affords 
 a reasonable basis for believing or disbelieving some matter di- 
 rectly in issue in the case. 
 
 Both direct and circumstantial testimony are admissible, if 
 relevant and offered by the proper means of proof. The weight 
 to be given direct testimony is ordinarily a matter left to the jury 
 for determination without instruction from the judge. It is 
 usual, howover, in criminal cases depending on circumstantial 
 evidence, to instruct the jury specially with reference thereto. 
 The rule on this subject is substantially as follows : Every fact in 
 the chain of circumstances which the jury relies upon as a basis 
 for its verdict of guilty, must be proved with the same degree of 
 certainty as is required as to the main fact in issue, that is, be- 
 yond a reasonable doubt ; all the facts so established and so taken 
 into account must be consistent with each other; and must not 
 only be consistent with the guilt of the accused, but must be in- 
 consistent with every reasonable hypothesis except that of his 
 guilt. 
 
 Contradictory and Corroborative. — Items of testimony which 
 are inconsistent and conflicting, tending to lead the mind to dif- 
 ferent conclusions, are called contradictory. Items of testimony 
 which tend to lead to the same conclusion are called corroborative. 
 This distinction does not relate to the admission or rejection of 
 evidence, but to its effect upon the verdict.
 
 EVIDENCE. 495 
 
 Independent and Cumulative. — Testimony which brings a new 
 fact into the record is called independent. Testimony which 
 duplicates or repeats facts already in the record is called cumula- 
 tive. This distinction is chiefly of value in connection with mo- 
 tions for a new trial based on newly discovered testimony. If 
 the newly discovered facts are independent, the court will con- 
 sider them, and other necessary circumstances concurring will 
 grant the new trial. New trials are very rarely granted to give 
 the benefit of newly discovered testimony if such testimony is 
 cumulative in its nature. 
 
 Res Gestce. — There are some matters which are frequently pre- 
 sented to the court as evidence which are quite difficult to clas- 
 sify. From some points of view they may be regarded as original 
 testimony, while from others they seem to be hearsay ; sometimes 
 they may be looked upon as primary and at others as secondary 
 evidence. Among the more important of these matters of doubt- 
 ful nature are verbal declarations made at the time of the occur- 
 rence of some act under investigation or so immediately thereto- 
 fore or thereafter as to be legally regarded as a part of the trans- 
 action. These declarations are usually known as res gestce. 
 
 Words used at the time and place of any transaction and so in- 
 timately connected therewith as to be a part and parcel of it, are 
 as admissible as any other matter then and there transpiring. 
 They are received in order to put the judge and jury as nearly 
 as possible in the exact position of the parties and to enable them 
 to understand as fully as possible everything that took place, and 
 thus to qualify them to judge of the conduct of the parties from 
 the most intelligent point of view possible. It is immaterial 
 whether such statement be made by the parties whose conduct is 
 under investigation or by others. 
 
 The admissibility of such statements depends upon their con- 
 nection with the matter at issue. If that is so close that they may 
 fairly be said to be a part thereof, they are admissible. If the 
 statements are not strictly speaking simultaneous with the act 
 under consideration but precede or follow it, the question arises: 
 What length of time must elapse before the words are so sepa- 
 rated from the transaction as to preclude the repetition of the 
 statement as evidence? In such case the facts and circumstances 
 must be considered, and if from them the statement, notwith-
 
 496 AMERICAN ELEMENTARY LAW. 
 
 standing the slight difference in time, can fairly be held to be a 
 a part of the transaction, that is if the statement preceded and 
 was the then present cause of the act or acts under consideration, 
 or if it succeeded and is the immediate and unstudied outgrowth 
 of such act or acts, it should be admitted ; but if there was time 
 and opportunity for second thought it should be rejected as hear- 
 say. 
 
 Dying Declarations. — Closely related to the rules governing 
 res gestc? are those regulating the admission of dying declara- 
 tions. Dying declarations are admissible as testimony only in 
 those cases in which the cause of the death of a human being is 
 in issue in a criminal case. As the fact of death is directly in- 
 volved, statements made by the party dying relating to the cause 
 of the death, are in some regards analogous to the statements we 
 have considered in the preceding paragraph as res gestce. But 
 the two are by no means identical. Res gestae includes statements 
 or explanations made by any one at the time the transaction oc- 
 curred. Statements which may be admitted as dying declara- 
 tions are limited strictly to those made by the dying person, and 
 even these must be shown to have been made voluntarily, with a 
 consciousness of impending death and while he is in possession 
 of his mental faculties. When these facts concur testimony will 
 be received to prove the statements of the dying party. If the 
 act of the defendant in a criminal case causing the death, and the 
 death occur almost at the same time, the dying declarations might 
 well be regarded as res gestce. If any considerable time elapses 
 after the injury before the death, the declarations are purely 
 hearsay. 
 
 Statements made against Interest. — Under this head we will 
 consider both admissions and confessions. The legal distinction 
 between these two is that admission is used to indicate statements 
 made against one 's interest which affect his rights in a civil suit, 
 while confession indicates such statements used in criminal cases. 
 
 The principle upon which such statements are received in evi- 
 dence in civil and criminal cases is the same, though out of its ten- 
 derness for the life and liberty of the individual the law is, in 
 some respects, more guarded in receiving confessions than ad- 
 missions. 
 
 When admissions or confessions are made solemnly in the
 
 EVIDENCE. 497 
 
 progress of a trial, they are more in the nature of substitutes for 
 evidence than of evidence itself. A plea of guilty in a criminal 
 case properly entered is a damaging confession which relieves 
 the State from the necessity of introducing full testimony, though 
 by statute in some States evidence must still be introduced to 
 enable the jury or the judge to act intelligently in fixing the 
 amount of punishment. An admission in the pleadings of a party 
 to a civil suit, or a statement in the progress of the trial made in 
 open court, that certain alleged facts are true and need not be 
 proved is rather a Avaiver of the necessity of proving the facts 
 than evidence of them. 
 
 Unless the admission or confession is made in open court or is 
 contained in the pleadings of the parties the testimony offered 
 regarding it is necessarily hearsay. It always consists in the 
 repetition of something said by a party to the suit at some pre- 
 vious time, for the purpose of proving the truth of the matter 
 contained in the statement. Receiving of such statements in 
 evidence, therefore, is an exception to the general rule excluding 
 hearsay. This exception is based on the fact that men are care- 
 ful regarding their own interests and rarely make statements 
 hurtful to themselves unless such statements are true. 
 
 The effect of admissions solemnly made in a civil suit is to bind 
 the party absolutely on the point admitted. Care, however, must 
 be observed to ascertain the nature and extent of the admission. 
 Sometimes it will bind the party only for the trial during which 
 it is made and during appeals from the result. In such case, if 
 there is another trial, the party may relieve himself from the ad- 
 mission. Again, if the party admits that a certain witness would 
 testify to a certain matter as a fact, this is very different from 
 an admission that the testimony of the witness is true. Under 
 such conditions the party making the admission must argue his 
 case just as though the named witness had been present and tes- 
 tified as stated in the admission, but he would still be free to at- 
 tack the credibility of the witness and to dispute the truth of the 
 statement by any legitimate means. If, however, he admits that 
 the statement is true he is cut off from controverting the state- 
 ment. 
 
 The effect of confessions of guilt in a criminal case also de- 
 pends on the manner and form in which they are made. If the 
 32
 
 4'J8 AMERICAN ELEMENTARY LAW. 
 
 confession take the form of a plea of guilty entered in open court 
 it is practically conclusive as to the fact of guilt, though testi- 
 mony is often required in those cases in which the judge or jury 
 are allowed choice and discretion in fixing the penalty. "Where a 
 confession is claimed to have been made out of court the distinc- 
 tion is recognized between statements made before arrest and those 
 made while in custody of the law. Many safeguards are thrown 
 around the reception of the latter in evidence which are not re- 
 quired as to the former. These are largely statutory and differ 
 in the different States. 
 
 The Relation of the Facts to the Matters in Controversy. 
 
 No testimony can be received unless it be relevant to the issues 
 joined between the parties. 
 
 Testimony is relevant when it reasonably tends to prove the 
 truth or falsity of the issues under investigation. All relevant 
 testimony is admissible if offered in conformity with the rules 
 governing the production of evidence, unless its introduction be 
 forbidden by some positive rule. There are a few such prohibi- 
 tory rules, based mostly, if not exclusively, on considerations of 
 public policy. 
 
 Mr. Greenleaf 's statement of the general rule on this subject is: 
 ' ' Evidence must correspond with the allegations, and be confined 
 to the point in issue. ' ' It is frequently announced in these words : 
 The allegata and probata must correspond. 
 
 The question again arises : What circumstances can reasonably 
 aid the court in its search for the truth involved in the case ? The 
 answer is: Such circumstances as are so connected with one or 
 more of the issues in the case, or its legally related facts, as to be 
 reasonably calculated to have one or more of the following effects 
 on the mind of the jury i 
 
 (1) To establish a rational belief in the truth of some matter 
 alleged in the pleading. 
 
 (2) To strengthen such belief, if it be already somewhat sup- 
 ported by presumption or evidence. 
 
 (3) To prevent such belief. 
 
 (4) To weaken or destroy such belief, if it exists either by pre- 
 sumption or from evidence. 
 
 The next question is : "What are the issues in any case ? In this
 
 EVIDENCE. 499 
 
 connection, they may be defined as all matters of fact affirmed on 
 the one side and denied on the other. 
 
 The next question is : Must the testimony relate to all the issues, 
 or may it relate only to all facts in one issue, or to one fact only of 
 one issue, and still be relevant? The answer is: If it have the 
 proper connection with any fact directly involved in any one 
 issue, it is relevant. 
 
 The next question is : Are there any facts, not directly involved 
 in any of the issues in a case, but yet which the law regards as so 
 related to such facts as to make the testimony as to such related 
 facts relevant? The answer is: Yes. 
 
 There are numerous instances in which such facts are admitted. 
 These are usually, if not always, instances in which the offered 
 facts tend directly to aid in weighing and valuing the testimony 
 offered in regard to the matters directly in issue. They may be 
 classified as follows: 
 
 (1) Facts which tend to show the meaning of words or expres- 
 sions used in evidence or by witnesses, as by showing that a re- 
 mark attributed to one of the parties was spoken in jest, or that 
 the party was in the habit of using the words in question in an 
 unusual sense, etc. 
 
 (2) General facts which go to show the character of the party 
 in respect to the matter under investigation. 
 
 (3) Facts which go to show the capacity or opportunity of a 
 party to the suit as to the particular matter under investigation. 
 
 (4) Facts which are concomitant with, and explanatory of, a 
 fact directly in issue or explanatory of some fact already received 
 in evidence for the purpose of directly supporting the facts di- 
 rectly in issue. 
 
 (5) General facts as to the reputation of a witness for truth 
 and veracity in his own community, but no particular instances 
 of untruth nor individual opinions can be received. 
 
 (6) Facts which go to show the capacity or opportunity of the 
 witness as to the matters testified to by him. 
 
 (7) Particular facts which go to show the attitude of the wit- 
 ness toward the case or the parties, such as interest, friendship, 
 ill will, inducements offered by or conduct of parties, and in 
 short, all facts which go to show bias in reception of impression, 
 motive or inducement to color or misrepresent facts.
 
 500 AMERICAN ELEMENTARY LAW. 
 
 There is this difference to be observed. Those facts which re- 
 late directly to matters directy in issue may always be proved, if 
 offered in conformity to rules as to the production of testimony; 
 but facts which relate indirectly to matters directly in issue, or 
 which relate only to facts which are indirectly connected with the 
 issues, are frequently rejected, from considerations of public 
 policy. 
 
 Thus, if one were indicted for perjury, all direct evidence as to 
 the offense would be received. But to show that he had previously 
 been convicted of a similar offense would be inadmissible, although 
 all would recognize that this would have a decided influence on the 
 mind of the ordinary man in producing a belief of his guilt. Such 
 proof, though logically relevant, is inadmissible, because it might 
 result in injustice to the defendant by the introduction of evi- 
 dence he was not prepared to rebut, and because it would tend 
 to multiply issues and unduly protract the litigation. Again, 
 whenever a witness is introduced, his credibility at once becomes 
 a material question in the case. Here the law permits inquiry as 
 to his general reputation for truth in the neighborhood in which 
 he lives, for this is a matter on which every one is supposed to be 
 able always to defend himself; but particular instances in which 
 he has deceived, or even in which he was supposed to have sworn 
 falsely, and the opinions of particular individuals as to his credi- 
 bility, are excluded, not because they would not probably throw 
 light on his character, but because of the undue advantage which 
 might thus be taken, and the numerous issues which would thus 
 be raised. 
 
 Functions of the Judge and Jury as to Evidence. 
 
 In Common Law courts the judge decides all questions of law 
 and such questions of fact as arise incidentally in the trial of the 
 case. The issues of fact joined by the parties in their pleadings 
 are decided by the jury. In these courts juries are empaneled 
 as a matter of course unless expressly waived by the parties. It 
 is permitted, however, even in these courts for the parties by the 
 consent of the judge to dispense with a jury and submit all mat- 
 ters of fact" as well as of law to the judge. These are still the 
 rules in the Federal Courts. In many of the States there are 
 statutes which dispense with juries even in law cases unless one
 
 EVIDENCE. 501 
 
 or the other of the parties shall demand a jury trial in conformity 
 with the local law. 
 
 In courts of chancery no jury was ever impaneled, but ques- 
 tions of fact were decided by the chancellor. If, in some particu- 
 lar case, the chancellor desired to do so, he could certify to a Com- 
 mon Law court designated issues of fact involved in a case pend- 
 ing before him and request that they be passed on by a jury in 
 the Common Law court, and that the verdict found by the jury 
 be certified to him by the Common Law court. Even in such 
 cases the verdict was not conclusive upon the chancellor but only 
 advisory. He could accept or reject the conclusion of the jury 
 as his judgment and conscience dictated. These rules also still 
 obtain in the Federal courts. In many of the States the law and 
 equity jurisdictions have been blended and the same rules govern 
 in the trial of law and equity causes. 
 
 In the trials in cases in which juries are impaneled it is the 
 province of the judge to pass upon the admissibility of evidence, 
 that is to say, whether any proposed testimony can lawfully be 
 received and submitted to the jury. It is the province of the jury 
 ordinarily to determine the credibility of the witnesses and the 
 weight to be given to the testimony received. 
 
 As no fact is admissible in evidence unless it is relevant and as 
 relevancy is that quality by reason of which a fact tends to prove 
 or disprove some issue in a case, it is clear that the judge in de- 
 termining whether or not a proposed fact is relevant must con- 
 sider it in connection with the issues and other evidence in the 
 case. This necessarily involves whether or not the testimony is 
 entitled to have any weight in the case. The weight of evidence 
 is its probative force. If a fact offered in evidence has no pro- 
 bative force it is not relevant and should not be received. If it 
 has probative force and is offered in conformity with the rules 
 governing the production of testimony it should be received. 
 
 The respective duties of the judge and jury with regard to the 
 probative force of testimony may be stated thus : it is the duty of 
 the judge to determine whether or not the fact offered in evidence 
 has any probative force whatever, that is, any relevancy to the 
 issues to be decided ; it is the duty of the jury, after the judge has 
 admitted the testimony, to determine how much probative force 
 the particular fact should have in determining the issues of fact
 
 502 AMERICAN ELEMENTARY LAW. 
 
 in the case. To state it differently : the judge determines whether 
 or not a proposed fact is evidence, the jury determines what 
 weight the fact shall have after the judge has declared that it is 
 evidence in the case. 
 
 The rule above stated that the jury are to judge of the weight 
 of evidence is a very general one, though not universal in its ap- 
 plication. The exception that the judge must construe and de- 
 clare the effect of written instruments is as well settled as the 
 rule itself. There are certain legal presumptions existing at 
 Common Law or established by statutes which it is the duty of 
 the judge to announce to the jury, giving to each presumption 
 such weight as it is entitled to by law. Notwithstanding these 
 exceptions, the general rule is that the weight to be given to tes- 
 timony is a matter for the jury. 
 
 The credibility of the witnesses is always a matter for the jury. 
 The competency of the witness, that is, whether he should be per- 
 mitted to testify, is a matter for the judge, but the judge having 
 decided that and having permitted the witness to testify it is the 
 province of the jury to say to what extent he is to be believed. 
 
 Credibility of Witnesses. — The first element in the value and 
 weight of testimony is the credibility of the witness from whom 
 the evidence comes. In this credibility the following are in- 
 cluded : 
 
 (1) The moral character of the witness. This involves hia 
 desire and purpose to tell the truth and his courage to carry out 
 such purpose. 
 
 (2) The mental condition or capacity of the witness; first, to 
 receive correct impressions while the matter to which the testi- 
 mony relates is taking place, second, to retain such impressions 
 unchanged, and third, to correctly transmit such impressions. 
 
 (3) The opportunity of the witness to exercise these faculties 
 in the several ways indicated above, and 
 
 (4) The attitude of the witness, or his relation to the subject 
 matter of which he testifies or the parties affected thereby. That 
 is, the personal interest of the witness in the matter itself or any 
 one or more of the parties to it, or his prejudice against such par- 
 ties, etc. ; including herein all those matters which come under the 
 general designation of motive. 
 
 Weight of Evidence. — "What constitutes the weight of evidence 
 is so important as to justify a somewhat detailed treatment.
 
 EVIDENCE. 503 
 
 There are five elements which enter into the weight of testi- 
 mony, four of these relate to the statement that is being consid- 
 ered. The fifth to the witness testifying. The latter is in reality 
 the credibility of the witness and has been considered under that 
 head. 
 
 The other four elements are: 
 
 (1) The meaning of the statement. 
 
 (2) The probability of the statement considered within itself. 
 
 (3) The consistency of the statement with ascertained concom- 
 itant facts. 
 
 (4) The relevancy of the statement. 
 
 The first inquiry in weighing testimony is, what does the state- 
 ment mean? That is, what fact does it purport to represent or 
 contain. In cases in which the evidence offered is documentary, 
 that is, consists of written instruments, its meaning or import is 
 a question to be determined by the court; unless there be in the 
 paper some latent ambiguity which may be explained by resort 
 to parol testimony. In such case the legal effect and meaning of 
 such portions of the instrument as are unambiguous are for the 
 court, and the determination of the facts evidenced by the parol 
 testimony is for the jury. But even in such cases the legal effect 
 of the instrument as applied to the facts as found by the jury is 
 in most instances still a question for the court. To illustrate : if 
 the written instrument be entirely plain or even of doubtful 
 meaning but has no latent ambiguities in it the court must in- 
 struct the jury as to the legal effect and meaning of the paper. 
 If the instrument be a conveyance of land, and the subject matter 
 of the conveyance be general, equally applicable to two tracts, 
 parol testimony would be admissible to determine which of the 
 two tracts was in fact in the minds of the parties at the time the 
 instrument was executed. In such a case the court would receive 
 the parol testimony and leave to the jury the question as to which 
 of the two tracts the contract or instrument applied, but would 
 further instruct the jury as to the legal effect of the contract as 
 applied to the subject ascertained by them. This doctrine is 
 usually embraced in the statement that: "The legal effect of a 
 written instrument is to be determined by the court." 
 
 The meaning of parol testimony is always for the jury, and 
 each statement must be determined by the jury trying the case
 
 504 AMERICAN ELEMENTARY LAW. 
 
 according to their judgment as to what idea the witness in fact 
 intended to convey. 
 
 Second. The probability of the statement consists in its cor- 
 respondence with the present belief of the party considering it. 
 This belief is always largely based upon experience. 
 
 As there are no two persons who have beliefs or opinions ab- 
 solutely identical it necessarily follows that no statement will 
 have just the same degree of probability to any two persons, and 
 as in many instances the beliefs and opinions of individuals differ 
 very greatly it follows that the degree of probability of any state- 
 ment, as determined by such persons, would also differ very 
 widely. Hence it is that probability is a very variable and un- 
 certain quality, impossible of any legal ascertainment or measure. 
 Each statement being left to and weighed by the particular jury 
 according to their conception of the matter. 
 
 Third. The third element in value of testimony is its corre- 
 spondence with particular facts as ascertained in the case on trial, 
 and which were concomitant with the matter contained in the 
 statement under investigation. This must not be confounded 
 with probability. 
 
 To illustrate: If the first witness in a case should begin his 
 testimony by saying that "There was a severe snow storm in the 
 city of New Orleans on the 15th of July," such statement would 
 not readily be accepted as true. The effect produced on the minds 
 by the testimony in that case is against the preconceived opinion 
 or belief that it is not at all likely to snow there in that season 
 of the year. This statement would be improbable. If, however, 
 the witness should begin by saying that on the 15th of July it 
 was very warm in New Orleans, we would recognize the likelihood 
 of the statement for the same reason ; common experience teach- 
 ing us that such would probably and almost certainly be the case. 
 
 On the other hand, if a witness, of whom we knew nothing, 
 should swear that he saw A shoot B at some designated place on 
 July 15, 1910, and both A and B were unknown to us, here there 
 is nothing inherently improbable in the statement. There is noth- 
 ing in it, considered by itself, either corresponding with or con- 
 trary to our personal opinions, for we have none on this subject. 
 If afterward during the progress of the trial several witnesses, 
 whom we knew and believed to be truthful, should swear that
 
 EVIDENCE. 505 
 
 they knew both A and B, and that at the very time the first wit- 
 ness says A shot B in the place named, A was with these witnesses 
 at a different place ten miles from there, these statements as to 
 the concomitant facts being absolutely inconsistent with the state- 
 ment of the first witness, if we believe the latter statements 
 the testimony of the first witness must be rejected ; although con- 
 sidered by itself it could not be regarded as improbable. 
 
 If, however, these latter witnesses had said that they were near 
 the place of the alleged shooting and heard a pistol shot, and saw 
 A run rapidly oft, and found B lying on the ground in a dying 
 condition from a gunshot wound, — these statements would sustain 
 the first witness or strongly corroborate his testimony, and taken 
 in connection with it would establish the fact that B was shot 
 by A. 
 
 Fourth. The fourth element in the value and weight of testi- 
 mony consists in its connection with facts in issue, or its legally 
 related facts; in other words, in its relevancy. This question is 
 primarily passed upon by the court in the admission of testimony. 
 That is, to be admissible evidence must be relevant to some de- 
 gree, but the extent to which the received testimony tends to es- 
 tablish or strengthen, or to weaken or prevent a belief in the 
 truth of matters under investigation, is ultimately left to the 
 jury without any suggestion from the court, except in those in- 
 stances in which the law has undertaken to attach certain weight 
 to the testimony. This matter has already been considered at 
 length. 
 When is the Proof Sufficient? 
 
 As stated under first and second rules, he who is dissatisfied 
 must take the initiative in introducing evidence, and must con- 
 tinue until he has established the substance of his case as set out 
 in his pleadings. The present inquiry is: How much evidence 
 must he produce to constitute proof? The answer varies with 
 varying conditions. 
 
 (1) In Criminal Law, the defendant is presumed to be inno- 
 cent until his guilt is established beyond a reasonable doubt, and 
 the State can never safely close its case until it has testimony 
 sufficient to do that. Besides this, there are other special rules 
 of evidence in criminal matters, such as the requirement of cor- 
 roboration of accomplices, etc., and some which apply only in
 
 506 AMERICAN ELEMENTARY LAW. 
 
 particular cases, as the necessity of two witnesses in perjury and 
 treason whose testimony must coincide and other similar provi- 
 sions. 
 
 (2) In civil suits issues of fact are determined by the pre- 
 ponderance of evidence. This does not mean numerically the 
 larger number of witnesses, but such testimony as, in the mind of 
 the jury, when fairly and dispassionately considered, is entitled 
 to prevail over that offered in opposition to it. 
 
 In both criminal and civil cases, there are numerous legal pre- 
 sumptions which, when applicable to a case on trial, must be con- 
 sidered and given due weight. But after all, testimony sufficient 
 to establish in the mind of a disinterested person a reasonable be- 
 lief of any given fact, is largely a question of good judgment. 
 In no other one thing is the difference between the good and the 
 poor lawyer more apparent than in dealing with this and its re- 
 lated questions.
 
 CHAPTER VII. 
 
 TRIALS. 
 How Conducted. 
 
 The clerk of the court is required to keep a docket of all cases 
 pending in his court. This is a book in which the style of all cases 
 and also the date of the most important actions which are taken 
 therein, and a short memorandum of every ruling or decision by 
 the judge in the case are entered. Cases are entered on this docket 
 in the order in which they are instituted. When the session of 
 the court begins, the judge takes this docket and calls the cases 
 in the order in which they are entered there. As each case is 
 called for trial, some disposition must be made of it. This may 
 be a postponement to some later time during that term of the 
 court, or to the next term, or a trial of the case. Postponements 
 are not made, except for good cause. A postponement to the next 
 term is called a continuance. When the case is called for trial, 
 all unsettled motions and questions of law arising on the plead- 
 ings are presented to the judge, and he decides them, and the 
 matters of fact to be tried are thus definitely ascertained. 
 
 When the trial is ready to begin, if there is to be a jury, it is 
 selected and sworn to try the case. They then determine all ques- 
 tions of fact involving the merits of the case. If no jury is to sit, 
 the judge determines both the law and the facts. After the jury 
 is impaneled, or immediately on announcing ready for trial, if 
 there be no jury, the pleadings, as settled by the rulings on the 
 demurrers, are read, and the testimony is introduced. After the 
 close of the testimony, the legal propositions are discussed to the 
 judge and the facts argued before him, or the jury, as the case 
 may be. If there be no jury, the judge announces his decision 
 then, or takes the case under advisement and announces it later, 
 and judgment is entered in accordance therewith. 
 
 If there be a jury, when the argument before them is concluded 
 the judge delivers his charge. This is a clear and accurate state- 
 ment by the judge to the jury of all the rules of law applicable 
 to the facts in evidence, by which they are to be governed in de-
 
 508 AMERICAN ELEMENTABY LAW. 
 
 liberating on the case and making up their decision. It should be 
 fair and unbiased, giving the very law of the case being tried — 
 no more, and no less. 
 
 After receiving the charge, the jury retire in charge of an offi- 
 cer, and are kept together and from association with other per- 
 sons until they arrive at a unanimous decision called a verdict. 
 This is then reduced to writing, signed by one of their number 
 styled the foreman, and returned into open court, where it is re- 
 ceived by the judge and inspected and, if in due form, is read by 
 the clerk. If informal, the attention of the jury is called to the 
 defect, and it is cured, and then the verdict is received. It is 
 filed and is entered of record. The jury is then discharged from 
 the case, and the attorney of the successful party prepares a for- 
 mal judgment, which is entered of record. 
 
 Judgment. 
 
 The judgment is the final result of the trial. It is the culmina- 
 tion of the whole proceeding, and authoritatively establishes and 
 declares the legal rights and liabilities of the respective parties to 
 the suit in the matters of controversy and awards the proper 
 remedy. It is binding on them, and all persons claiming under 
 them, and cannot be disputed or avoided by any of them except 
 by a direct proceeding for revision. 
 
 Revision of Judgments. — As nothing human is perfect, errors 
 frequently occur in the progress of trials, and unjust and unlaw- 
 ful results follow. Recognizing this, the law makes provision for 
 correcting such errors. These are of two general kinds: (1) re- 
 vision in the court in which the trial was had; (2) revision by 
 some higher court with appellate jurisdiction. 
 
 The first of these is usually accomplished by motion in the trial 
 court. These motions are for a new trial, or in arrest of judg- 
 ment. The technical differences between them we need not no- 
 tice. In preparing the motion, the attorney for the unsuccessful 
 party reviews in his own mind the entire trial and carefully con- 
 siders every ruling and decision adverse to his client, and, unless 
 the judge was clearly right in each, he selects that as a reason 
 for a new trial. All these reasons he incorporates into a written 
 motion and files it, and presents it to the judge. If he succeeds 
 in convincing the judge that error has been committed to his in- 
 jury, the new trial is granted. If he does not, it is denied.
 
 TRIALS. 509 
 
 If the new trial be granted, the ease stays on the docket for an- 
 other trial, when it is again reached in due course. 
 
 If the motion be overruled, the losing party can take an appeal 
 to some higher court, provided for that purpose. To do so he 
 gives notice of such appeal in open court, and files an appeal 
 bond, or pauper's oath in lieu of bond, if he can not give it, and 
 then files another paper called an assignment of errors. In this 
 he sets out in detail, in distinct propositions, the various rulings 
 and decisions of which he complains. 
 
 As no official record is kept during the trial of the evidence in- 
 troduced and of many of the rulings of the court made in the 
 progress of the trial, a statement of facts and various bills of ex- 
 ceptions presenting these different matters are made out, as the 
 law requires, and, on being approved by the judge, become part 
 of the record. 
 
 The clerk then makes out a complete transcript of the whole 
 record, and this is filed in the appellate court, and the case there 
 is tried on that. 
 
 If no appeal be taken, a writ of error may be sued out within a 
 limited time. This does not differ materially from an appeal, ex- 
 cept in the manner of informing the adverse party of the fact 
 that a revision of the judgment is being sought. 
 
 When the case reaches the appellate court it is entered on the 
 docket there and tried under the rules of practice applicable 
 there. This court makes such disposition of the case as the law 
 requires. If there has been no error committed, or if error, if it 
 be in favor of the appealing party, or if against him is so slight 
 as to have had no influence on the result of the case, the judg- 
 ment is affirmed. If there is material error against the appellant, 
 the judgment will be set aside or, as it is technically called, re- 
 versed. If all the facts have been developed and justice may be 
 done in that way, judgment will be rendered in behalf of the ap- 
 pellant. If this can not be done, and the error can be corrected 
 on another trial, the case will be remanded to the lower court to 
 be tried in accordance with the decision of the appellate court. 
 If tbe error can not be cured, the case will be dismissed. 
 
 In addition to the methods of revising judgments just discussed 
 the court in which a judgment was rendered in cases of gross 
 injustice, not attributable to the fault of the injured party, upon
 
 510 AMERICAN ELEMENTARY LAW. 
 
 proper application by him, made in the time and manner pro- 
 vided by law, may set aside such judgment and open up the ques- 
 tion for rehearing. The ancient equity proceeding for this pur- 
 pose was called a Bill of Review. It is very limited in its appli- 
 cation and very technical in the rules governing it. In modern 
 practice an appreciably broader and more useful proceeding has 
 been introduced known as a Bill in the Nature of a Bill of Review. 
 Both these are proceedings brought in the court in which the 
 judgment was rendered for the purpose of setting the judgment 
 aside and obtaining another hearing of the case. 
 
 Enforcement of Judgments. — Judgments not only determine 
 the rights and liabilities of the parties, but also award the reme- 
 dies to which the successful party is entitled. So, when the liti- 
 gation is finally over, he can obtain the benefits of his trouble and 
 expense. Most frequently the unsuccessful party, when he can 
 resist no longer, complies with the requirements made upon him 
 by the judgment. But this is not always so. To meet these 
 latter cases the law provides various methods of forcing obedi- 
 ence. This is done by the award of various writs or process, usu- 
 ally called executions, and placing these in the hands of the 
 proper executive officer, who, in obedience thereto, compels the 
 party to do what has been adjudged to be his legal duty. 
 
 The remedy awarded in each particular suit is the one appro- 
 priate to the case and rights of the party. If it be to compel pay- 
 ment of money, the writ commands the officer to seize and sell 
 enough of the property of the debtor to pay the judgment and 
 the costs of its execution. If it be for the possession of land, the 
 writ authorizes the officer to take the property into his possession 
 and deliver it over to the successful party, and so on, through 
 the whole list of remedies. Courts of Equity direct their reme- 
 dies largely against the person of the defendant. Thus, if an in- 
 junction be awarded, the party must conform his conduct thereto, 
 and, if he does not, he is put in jail. So in decree for specific 
 performance of a contract, if the party does not obey the decree, 
 he is dealt with as for contempt, and made to do so. The satis- 
 faction of the judgment is, as to that case, the end of the law.
 
 PART V. 
 
 APPLICATION OF GENERAL RULES, TO CRIMINAL, 
 TORT, AND CONTRACT LAW. 
 
 CHAPTER I. 
 
 CRIMINAL LAW. 
 
 The laws of the several States are usually divided into Crim- 
 inal and Civil Law, and this last class again subdivided into Tort 
 or Non-Contract Law, and Contract Law. "We desire, now, to 
 follow these divisions, and take up, with a little more of particu- 
 larity, the principal rules and doctrines of each of these three di- 
 visions, and present them, not in detail, but in fair general out- 
 line, showing, so far as brief treatment can do, the application in 
 each of the general principles we have tried to develop in the 
 preceding pages. 
 
 First in order comes Criminal Law. 
 
 The public is entitled to protection against the harmful conduct 
 of individuals. This protection is afforded by forbidding certain 
 conduct, providing penalties for violating these rules and sub- 
 jecting persons guilty of such conduct to these penalties. What 
 conduct is harmful and shall be punished, is determined by the 
 legislative department of the government, and the determination 
 thus arrived at, if not contrary to some provision of the Federal 
 or State Constitution, is binding on the judicial and executive 
 departments. When conduct is so denounced and penalized, it 
 becomes criminal, and the law forbidding it and prescribing the 
 penalty for it is a Criminal Law ; and the aggregate of such laws, 
 in any State, is the criminal law of that State. A crime is an act 
 or omission which is forbidden by law, for the purpose of pro- 
 tecting the public, as such, and for which a punishment is affixed. 
 
 When we speak of the divisions of the law into Civil and Crim- 
 inal, we must not get the idea that these terms are so exclusive, 
 the one of the other, that the same matter can not fall within both
 
 512 AMERICAN ELEMENTARY LAW. 
 
 divisions; for the same act or omission may be both a crime and a 
 civil wrong, its nature depending on the point of view. If one 
 person owns property and another person steals it, or if one per- 
 son commits an assault and battery upon another, and severely 
 injures him, in each case the act is a violation of the good order 
 in which the public is interested, and also of the private right of 
 the individual involved. The Criminal Law in the first instance, 
 will punish the offender by appropriate remedy for the offense 
 against the public, and the Civil Law will make him responsible 
 to the owner of the property stolen for its value. So, in the sec- 
 ond case, the public vindicates its right to maintain the public 
 peace, by punishing the wrong-doer for his crime, and also com- 
 pels him to make restitution to the injured party for damage sus- 
 tained. And so of a large number of acts and omissions. They 
 violate both the Criminal and Civil Law, and the wrong-doer is 
 answerable for the violation of each. 
 
 The Common Law rules, as to crimes and their punishments, 
 are the result of long experience and much careful study. Their 
 details are many, and it would be profitless to attempt to go into 
 them. They are the base of the criminal laws of all the States of 
 the Union, unless it is Louisiana. In some States the Common 
 Law is still in force in criminal matters, except as it has been 
 modified by statutes. In others, the Common Law has been su- 
 perseded by a complete penal code, and nothing is punishable as a 
 crime unless made so by this code. 
 
 There are no Common Law offenses against the Federal laws. 
 So far as crime is concerned there is no Common Law enforced 
 through the Federal Courts. This does not mean that the Com- 
 mon Law is not looked to for the purposes of construing Federal 
 Criminal Statutes and interpreting words and phrases occurring 
 therein. This is always done. But no act or omission is punish- 
 able in the Federal Courts as a crime unless it has been declared 
 such by an act of Congress. 
 
 Classification of Crimes. 
 
 At Common Law crimes are divided into treason, felonies, and 
 misdemeanors. 
 
 Treason, in its broadest sense, is opposition to a government 
 to which one owes allegiance, manifesting itself in overt acts.
 
 CRIMINAL LAW. 513 
 
 By the Constitution of the United States it is declared that 
 ''Treason against the United States shall consist only in levying 
 war against them, or in adhering to their enemies, giving them aid 
 and comfort. " A similar provision occurs in most, if not all, of 
 the constitutions of the several States. This gives the general 
 American idea on this subject. If the war is waged with intent 
 to overthrow the Federal government, or the aid and comfort is 
 given to its enemies, it is treason against the United States. If 
 the opposition is to a State government, it is treason against the 
 State. 
 
 Felony, at Common Law, is any crime not treason punishable 
 by death or by forfeiture of estate or by both. In the early his- 
 tory of the law, it included a great many offenses which, at this 
 time, are regarded as relatively trivial. 
 
 The establishment of penitentiaries, or State prisons, as dis- 
 tinguished from county jails, and the substitution of confine- 
 ment in the penitentiary for the death penalty in a great number 
 of offenses has given opportunity for another definition of felony. 
 It is now customary to define a felony as any act or omission 
 constituting a crime and punishable by death or by confinement 
 in the penitentiary, either absolutely or in the alternative. Under 
 this definition it is not necessary that the crime be absolutely 
 punishable either by death or sentence to the penitentiary. If 
 the party accused of the offense may be put to death or sent to the 
 penitentiary, the crime is a felony although the court or jury 
 may be authorized under the law to impose only a pecuniary fine 
 as punishment. A man convicted of such an offense and fined 
 only is a felon. 
 
 All smaller crimes, that is, all crimes that are punishable only 
 by fine or by imprisonment in the county jail, or by both these, 
 or in any other way except by death or confinement in the peni- 
 tentiary, are known as misdemeanors. These are not infrequently 
 called petty offenses. 
 
 It is apparent that this last class includes the largest number 
 of offenses and those of most frequent occurrence. 
 
 It is important to keep the distinctions between felonies and 
 misdemeanors clearly in mind. Not only are they important in 
 Criminal Law but they enter largely into the rules of Criminal 
 33
 
 514 AMERICAN ELEMENTARY LAW. 
 
 Procedure. The jurisdiction of different courts over offenses is 
 frequently made to depend on this distinction and the methods 
 of prosecution are in many important respects affected thereby. 
 Defining Crimes a Legislative Function. 
 
 The determination of what acts shall constitute crime and the 
 penalties that shall be affixed therefor are legislative functions. 
 This function may be exercised by the people directly in framing 
 their constitution, as we have just seen with regard to treason, 
 but ordinarily it is left with the Legislative Department of the 
 government to determine these matters. In the United States 
 Government this function is discharged by Congress, subject only 
 to the limitations upon the power of the Federal Government and 
 upon Congress, inherent in the nature of that government, as as- 
 certained by fair interpretation of the Federal Constitution. In 
 the several States the power is exercised by the Legislatures sub- 
 ject only to the constitution and laws of the United States and 
 the constitution of the particular State. 
 
 It is apparent from the foregoing that the acts or omissions 
 which may be denounced as criminal are very many. Subject to 
 the limitations given above, any conduct which, in the judgment ' 
 of the legislative power, is subversive of the general good may 
 be declared to be a crime and punishable as such. In fact, the 
 acts or omissions which are made criminal in the different juris- 
 dictions are exceedingly numerous. From the nature of our in- 
 stitutions crimes as defined and punished by Congress are, to a 
 large extent, matters over which the States have no jurisdiction, 
 and in this sense they constitute a class to themselves, almost 
 without duplication in the laws of the respective States; though 
 there are a few matters, such as making or passing counterfeit 
 money, which may be punished both by the Federal Government 
 and by the States. On the other hand, when we compare the 
 Criminal laws of the several States we find that the great body 
 of the acts or omissions which are denounced as criminal in one 
 State are so denounced in others. The details as to what consti- 
 tutes the crime and what punishment shall be affixed and the 
 method of procedure are ordinarily different in the different 
 States, but the fundamental ideas in the Criminal Law of all the 
 States are, to a large extent, the same. Human nature in its de- 
 sires and capacities and weaknesses and temptations is largely
 
 CRIMINAL LAW. 515 
 
 the same throughout the whole United States, and experience 
 everywhere teaches practically the same lesson as to what con- 
 duct is conducive to, and what is opposed to, the public good. 
 The Criminal Law in each community is based upon and grows 
 out of this common experience. 
 
 Mental Capacity, Motive, and Intent as Involved in Crime. 
 
 The purpose of Criminal Law is to protect the general public 
 against the harmful conduct of the vicious and evil-minded. It 
 never deals with unmanifested desire or motive. However evil 
 these may be, the law takes no jurisdiction over them until they 
 are manifested, to some extent at least, in overt acts or wrongful 
 omissions. There must always be an affirmative wrong-doing, or 
 a wrongful failure to do when doing is a legal duty. So that 
 we may say that wrongful conduct, as that term has been defined, 
 is an essential element of every crime. 
 
 The question necessarily arises, Is the wrongful conduct all 
 that is essential ? The almost universal answer is. No. There are 
 a few acts made criminal by positive statute which, considered in 
 themselves, are as near devoid of moral quality as conduct may 
 be, which will be dealt with as criminal and punished without ref- 
 erence to intent. Some negligent omissions, also, are punished 
 as criminal although it may be clear that the act resulted from 
 mere inadvertence. Tn the last of these classes of cases, the law 
 very justly charges the party with his inadvertent carelessness 
 and in effect says that inadvertence, under the circumstances 
 specified in the law, is, in itself, a culpable mental attitude. 
 
 It is almost universally true that mental capacity and wrongful 
 intent are elements of crime both at Common Law and under the 
 Federal and State Codes. 
 
 Mental condition, upon which liability for crime ordinarily 
 rests, is capacity to understand the nature and consequences of 
 the particular act or omission under investigation. This does not 
 mean that the party must actually have understood that his con- 
 duct was criminal. Two of the leading maxims of the law are 
 that "Everyone is presumed to know the law" and that "Igno- 
 rance of the law excuses no one. " So the legal requirement is not 
 that the party charged shall know the legal nature of the act as 
 being unlawful, either as a felony or a misdemeanor, but that ho
 
 516 AMERICAN ELEMENTARY LAW. 
 
 have capacity to understand what he is doing and the moral 
 qualities of his conduct and its probable consequences. 
 
 The test is applied as to the particular conduct under investi- 
 gation. That is the question to be solved: Did he, at the time, 
 have the capacity to know the nature of that particular conduct 
 and its consequences ? It is true that the investigation may take 
 a much wider range. Possibly one of the most satisfactory ways 
 of proving lack of capacity on any particular point would be to 
 prove general insanity. But it must be remembered that such 
 proof is permitted for the purpose of obtaining a satisfactory 
 answer to the question, Is the prisoner mentally capable as to 
 the particular conduct charged against him? If he is, although 
 he may be unsound on other points, he is responsible ; if he is not, 
 though he may be sound on other points, he is irresponsible. 
 
 Passing from mental capacity to matters of intent and motive 
 and purpose, we enter a more difficult field. Motive is that which 
 actuates; which produces desire, and brings pressure upon the 
 will to give its assent to a suggested course of conduct. Intent 
 is the act of the will in yielding to, or rejecting these actuating 
 motives and the state of mind thus induced. Another term 
 closely connected with both motive and intent and sometimes 
 used interchangeably with each is purpose. The better meaning 
 of this word seems to be the end sought to be accomplished. It 
 is true that this is very closely akin to motive inasmuch as the 
 end to be accomplished is often the thing desired. It is also 
 closely related to intent because the will can scarcely determine 
 on a course of conduct except as leading to and accomplishing 
 some desired end. 
 
 It is not surprising that terms standing for ideas so closely re- 
 lated as these three thoughts are should be frequently confused 
 and used interchangeably. The three ideas exist and are actual 
 facts involved in the existence of almost every crime and the stu- 
 dent of law must become familiar with them. "We will endeavor 
 to use the three words in the senses indicated, that is, motive as 
 standing for that which actuates and prompts the doing or not 
 doing of a certain act; intent as the act of the mind and will in 
 deciding what is to be done and its state or condition while this 
 decision holds; and purpose, as the end sought to be accom- 
 plished by the conduct.
 
 CRIMINAL LAW. 517 
 
 Neither one of these, nor any combination of them, unmani- 
 fested in conduct is within the jurisdiction of the law. Each of 
 them is important in connection with conduct as fixing or tending 
 to show its legal quality and character. Of the three, intent is 
 probably of the greatest consequence. It is sometimes said that 
 intent is the legally important inquiry and motive and purpose 
 are valuable largely, if not exclusively, as evidence of intent. 
 This does not seem, however, to be altogether accurate. 
 
 These distinctions and their practical effect may be made 
 clearer by illustration. Homicide is the taking of the life of one 
 human being by act, agency or procurement of another. From 
 time immemorial homicide under some circumstances has been 
 justifiable in law, under others, excusable, and under others, a 
 very serious offense. Again, for centuries there have been grades 
 in criminal homicide. Whether or not the law justifies, excuses, 
 or punishes any particular homicide depends on the motive, in- 
 tent, and purpose of him who commits it. An officer who executes 
 a criminal under the command of the law does so intentionally 
 and with the purpose of taking his life, but his act is justified. 
 The law commanded it and the individual is but the instrument 
 of sovereignty in carrying out its will We might conceive of a 
 case in which the executioner actually had ill-will toward the 
 culprit and took pleasure in his death, but so long as he acts in 
 strict accord with the mandate of the law, he is guilty of no crime. 
 
 It is equally true that from time immemorial the law has rec- 
 ognized the right of self-defense and within the limits regulating 
 that subject has excused the man who killed his neighbor to pre- 
 vent his own life being unlawfully taken. Here the motive is the 
 man 's love of and right in his own life. He is not actuated by a 
 desire to injure another but by the desire to prevent the other 
 from seriously injuring him. The intent is to protect himself, 
 even though this may involve serious hurt to or the death of his 
 assailant. The purpose to be accomplished is his own protection. 
 As the motive and purpose are lawful, the yielding to the motive 
 and the accomplishment of the purpose are lawful and the in- 
 tent intervening between the two is lawful. 
 
 Passing to the grades of criminal homicide, the law recognizes 
 the difference between cold-blooded assassination and the killing 
 under the impulse of some sudden passion. In both cases there is
 
 518 AMERICAN ELEMENTARY LAW. 
 
 homicide committed contrary to law. In both cases there is in- 
 tent to kill. In the first instance, the assa&sin is actuated by 
 despicable motives to which his mind has yielded while calm and 
 deliberate and the law gives color to his act from this motive and 
 declares it to be murder in the first degree. In the second case, 
 the law neither justifies nor excuses the act, but recognizes the 
 frailty of human nature and finding that the intent to kill was 
 formed rashly in the heat of passion, says the homicide is less 
 reprehensible than cold-blooded murder and affixes to it a less 
 penalty. In many of the States, the Codes have gone even fur- 
 ther in grading felonious homicide and take into account, not only 
 the rashness and suddenness of the act, but the nature of the 
 provocation and punish more lightly homicides induced by con- 
 duct reasonably calculated to produce, and in fact producing, 
 such degree of excitement or passion as to render a man of ordi- 
 nary temperament incapable of self-control. Here there is the 
 intent to kill, but it is induced by sudden passion provoked by 
 adequate cause and the law looks upon it more leniently even 
 than it does upon sudden passion without sufficient provocation. 
 
 We must be careful to distinguish between the intent to do an 
 act and the intent with which the act is done, as this term is very 
 frequently used in the law. The last, the intent with which the 
 act is done, is much more a matter of motive and purpose than is 
 the intent to do. Consider the offense of larceny as an example. 
 Larceny is not the taking of corporeal personal property belong- 
 ing to another knowingly and purposely, but it is the taking with 
 the purpose or motive of fraudulently depriving the owner of 
 the value of his property and appropriating it to the use or bene- 
 fit of the person taking. If a piece of property belongs to A and B 
 honestly believes it belongs to him and takes possession of it under 
 this honest but mistaken belief, it is not theft. The criminal mo- 
 tive, or as it is usually expressed, the criminal intent is lacking. 
 The taking is a tort and A has a civil remedy for it, but it is not 
 a crime. If B had known the property belonged to A and had 
 taken it to use temporarily, presuming A's consent to such use 
 from their friendly relations, this would not be theft. The crim- 
 inal motive is lacking. 
 
 We may therefore conclude that mental capacity to appre-
 
 CRIMINAL LAW. 519 
 
 ciate the nature and consequences of one 's conduct and criminal 
 motive and intent are essential in almost all crime. 
 
 Evidence of Intent. — While the law insists upon criminal in- 
 tent it recognizes the practical difficulty of searching a man's 
 heart and finding his real motives and intentions. Here, as else- 
 where, it meets this practical difficulty in a practical way and de- 
 clares that a man 's motive and intent shall be judged by his con- 
 duct. If, therefore, his conduct and the means employed by him 
 are such as would ordinarily result in the commission of a crime 
 and the act forbidden is actually performed by him, his intent 
 to commit the crime is presumed therefrom. This is but an ap- 
 plication of the familiar doctrine that a man is presumed to have 
 intended the natural and probable consequences of his conduct. 
 The difference between Tort Law and Criminal Law in. this re- 
 spect seems to be, that in the matter of adjusting the loss between 
 individuals and awarding compensation for damages done, the 
 Law of Torts makes this presumption conclusive, whereas, in 
 Criminal Law, it may be overcome by the facts. 
 
 As just stated, the presumption thus indulged is not conclusive, 
 The accused, by proper testimony, may rebut its effect and show 
 that no criminal intent existed. 
 
 On the other hand, the law permits the prosecuting officer to 
 prove such facts as go to show motive, intent and purpose. Fre- 
 quently much of the evidence in a criminal case is directed 
 towards these mental conditions. Very frequently the facts and 
 circumstances developed on the trial speak more conclusively as 
 to criminal intent than the direct evidence of the accused him- 
 self could do. 
 
 Ignorance and Mistake. — Closely related to the questions of 
 mental attitude and intent are ignorance, mistake, duress, and 
 fraud. 
 
 Ignorance is absence' of information ; mistake is misinformation 
 or misconception; duress is coercion overcoming the will; and 
 fraud is deception leading to improper conduct. 
 
 It is apparent that all these differ from mental incapacity or 
 unsoundness. It is also apparent that they often enter into and 
 affect conduct, particularly in its mental aspect. 
 
 It is said that ignorance of the law never excuses one criminally.
 
 520 AMERICAN ELEMENTARY LAW. 
 
 This, of course, means ignorance of the law with the violation of 
 which the party is accused. Ignorance of law as to one's rights, 
 may and frequently does enter into and determine the legal qual- 
 ity of his conduct. This is not always true and is never true ex- 
 cept in those cases where specific evil intent is an element of the 
 crime. Perhaps the most common illustration that we find of the 
 proposition that ignorance of the law as it affects ones rights is in 
 cases of theft and other fraudulent dealing with property. A 
 person might know all the facts concerning his claim of owner- 
 ship and these, legally speaking, might be insufficient to give him 
 title, still if he, through mistake of law, honestly believed him- 
 self to be the owner, taking the property under that belief could 
 not be theft. The specific criminal intent necessary in theft does 
 not exist. Had he known the facts and known that the property 
 was not his and had taken it with fraudulent intent, ignorantly 
 believing that there was no law against such taking, this igno- 
 rance would in nowise constitute a defense. This would be igno- 
 rance of the law forbidding the act, which never excuses. 
 
 Ignorance of fact does excuse very frequently. To have this 
 result the ignorance must not be due to negligence of the accused 
 and his conduct must have been such as would have been lawful 
 had the facts been as he understood them to be. 
 
 Mutatis mutandis, the propositions announced with reference 
 to ignorance are applicable to mistake. 
 
 Duress. — The effect of duress is not so easily ascertained. 
 Under certain conditions duress is a defense. This is nearly al- 
 ways true in cases in which the duress is exercised by actual vio- 
 lence. Even in these cases, however, there should not be marked 
 disproportion between the violence applied to the person relying 
 on the duress and the wrong which he claims he was coerced into 
 committing. For duress by threats to constitute a defense, the 
 threat must be to do very serious harm to the person of the ac- 
 cused and must be so made as to be reasonably calculated to in- 
 timidate a person of ordinary firmness and the alleged criminal 
 act must take place in the presence of the person making the 
 threat. If these facts concur they usually constitute a defense. 
 
 Fraud, as such, is rarely presented as a defense in a criminal 
 action. If one party has deceived another, this state of mind, 
 if available at all as a defense, would come under the head of
 
 CRIMINAL, LAW. 521 
 
 ignorance or mistake, and it is in this form that the matter usu- 
 ally appears. 
 
 Parties Who May Commit Crime. 
 
 The very general rule is that any person having the mental ca- 
 pacity to understand the nature and consequences of his conduct 
 and to entertain the necessary criminal intent may commit crime. 
 The reverse of the rule is also true, that no one who, at the time 
 the particular offense charged was committed, was mentally in- 
 capable of appreciating his conduct and its consequences or of 
 entertaining a criminal intent can be guilty of crime. 
 
 This immunity exists in behalf of those who are permanently 
 insane or mentally defective and also those who are temporarily 
 unsound. There is a difference of view as to the effect of drunken- 
 ness on liability for crime. The true rule seems to be that if one 
 not then designing or desiring to commit a crime, shall become 
 intoxicated to such extent that he does not and cannot understand 
 the nature of his conduct and its consequences, or cannot enter- 
 tain a specific evil intent which is essential to the particular crime 
 charged, he cannot be held responsible for his conduct while in 
 this condition. On the other hand, if one while he has his facul- 
 ties about him desires to commit an offense and intoxicates him- 
 self with the intent and expectation of committing the offense 
 while in that condition, his drunkeDness will not excuse. 
 
 At Common Law and in all the States infants below a desig- 
 nated age are conclusively presumed to be incapable of commit- 
 ting crime. This age at Common Law is seven years. It differs 
 in the different States. Above this designated age there is an- 
 other period of years during which the infant is presumed to be 
 incapable, but the presumption is not conclusive and may be 
 overcome by proof in the particular case. After the lapse of this 
 second period, which usually extends to twelve or fourteen years, 
 the infant, though still a minor, is presumed to be capable of com- 
 mitting crime. 
 
 Coverture as such does not affect liability for crime. In some 
 statutes it is provided that coercion of a married woman by her 
 husband is more effective as a defense or mitigation of punish- 
 ment than duress ordinarily is. 
 
 One of the doctrines of the Criminal Law is that the defendant
 
 522 AMERICAN ELEMENTARY LAW. 
 
 is presumed to be innocent until his guilt is established beyond a 
 reasonable doubt. This presumption does not apply as to in- 
 capacity to commit crime except as to children in their earliest 
 period of legal responsibility, during which time the presumption 
 of incapacity obtains. To state the matter a little differently, 
 except as to children, as above noted, the burden of proof to show 
 incapacity to commit crime or to entertain criminal intent rests 
 upon the defendant and not upon the State. This is the rule at 
 Common Law and in practically all the States, though there may 
 be one or two exceptions. 
 
 Connection of Parties with a Particular Crime. 
 
 Crimes are committed in a great many different ways. Fre- 
 quently a number of persons are connected in different ways with 
 the same offense. This connection may be of three general kinds : 
 First, participation in the criminal act at the time it is commit- 
 ted; second, co-operation in the criminal enterprise prior to the 
 commission of the act ; third, actual co-operation with the criminal 
 after the act. 
 
 Different names are used in different jurisdictions to express 
 these different relations to the crime. At Common Law, parties 
 actually acting together in the commission of the crime, whether 
 immediately present or standing guard at some other place to 
 protect those who actually do the unlawful deed, or those who 
 do an act with design that it should be hurtful, which act does 
 result in the crime, as he who lays poison in the way of another 
 designing for him to take and thus to kill him, are known as prin- 
 cipals. Those who have aided, abetted, or encouraged the com- 
 mission of the crime before it takes place but who do not them- 
 selves perform the act, or take any part in the criminal enterprise 
 at the time the act is performed, are known as accessories before 
 the fact; while those who have no connection with the crime be- 
 fore or at the time of its commission, but who afterward so aid 
 and abet the criminal as to become legally parties to the crime, 
 are known as accessories after the fact. These Common Law 
 names are retained in a number of the States. In others those 
 persons who would be known as accessories before the fact are 
 called accomplices, and the Common Law accessories after the 
 fact are called accessories simply. Words are of secondary im-
 
 CRIMINAL LAW. 523 
 
 portance, but there is material difference between instigating 
 crime, committing a crime one's self, and shielding a criminal 
 after the crime has been committed. These distinctions the law 
 recognizes and enforces. Most frequently a principal is punished 
 more severely than an accomplice or accessory before the fact, 
 and these in turn are punished more severely than the accessory 
 after the fact. This, of course, is not universally so, but is so 
 frequent as to be properly designated a general rule. Another 
 recognition of the difference is found in the usual provision that 
 accessories after the fact, and in many instances accessories before 
 the fact, are not to be tried in advance of the principal if he be 
 in custody. 
 
 As accessories after the fact have no connection with the of- 
 fense until after it is committed and then usually only by aiding 
 the principal in avoiding arrest and escaping trial, it is fre- 
 quently provided that close relatives of the criminal are not re- 
 sponsible as accessories after the fact. This is a concession to 
 family ties and the affection which persons closely related usually 
 sustain to one another. 
 
 Punishments. 
 
 Punishments known to the Common Law are death, imprison- 
 ment, forfeiture of estates, and pecuniary fines. These are the 
 present prevalent Common Law penalties. Other methods of 
 punishment have been practiced from time to time and some of 
 them may still obtain in some of the States. The Common Law 
 method of taking life is by hanging. This is still the prevalent 
 mode, though electrocution has been substituted in some of the 
 States. Imprisonment may be either in the State or Federal pen- 
 itentiaries or in local jails. It may extend from a short period 
 to a life sentence. Pecuniary fines may be in such amount as the 
 proper authorities determine. 
 
 Defining and grading crimes and prescribing penalties pertain 
 to the Legislative Department of the government subject to such 
 limitations as are contained in the constitution. Cruel and un- 
 usual punishments are usually forbidden by constitutional pro- 
 visions. While the fixing of penalties is a legislative function il 
 is not necessary that the legislature should fix absolutely the 
 length of the term of imprisonment or the exact amount of pe-
 
 524 AMERICAN ELEMENTARY LAW. 
 
 cuniary fine to be imposed. The facts and circumstances of each 
 particular case show vast differences in the gravity of offenses 
 which come under the same name, and it is a prevalent habit in 
 the different States and in the Federal Government as well, to fix 
 minimum or maximum terms of imprisonment or amounts of fine 
 and let the court adapt the punishment to the facts of the particu- 
 lar case, within the limits thus indicated. Sometimes the law 
 fixes both a maximum and a minimum within which the court is 
 free to impose a penalty. It has been held in some instances that 
 where the Legislature has declared an act to be penal and has 
 prescribed no penalties that this is an adoption of the Common 
 Law penalty attached to such an offense and that the court may 
 impose the Common Law punishment. 
 
 There is a difference in the procedure in the different courts 
 as to assessing the penalty by the judge or by the jury. In the 
 Federal courts and in many of the State courts, the jury passes 
 upon the question of guilt or innocence only, and the judge fixes 
 the penalt}' within the limits fixed by law. In other States the 
 jury passes not only on the question of guilt but also determines 
 the penalty within legal limits. 
 
 In addition to the direct penalties for heinous offenses assessed 
 by the court or jury, conviction of felony or treason carries with 
 it as an incident loss of political rights and of competency as a 
 witness. This, however, may be removed by pardon from the 
 chief executive. 
 
 Different Classes of Offenses. 
 
 It would be useless to undertake to discuss in detail the different 
 offenses against the criminal law of the several States or of the 
 United States. Even different general classification of offenses 
 are numerous. 
 
 Blackstone deals with them under fourteen general heads as 
 follows : 
 
 (1) Offense against God and religion. 
 
 (2) Against the law of nations. 
 
 (3) High treason. 
 
 (4) Felonies injurious to the King's prerogative. 
 
 (5) Praemunire. 
 
 (6) Misprisions and contempts affecting the King and Govern- 
 ment.
 
 CRIMINAL LAW. 525 
 
 (7) Offenses against public justice. 
 
 (8) Offenses against the public peace. 
 
 (9) Offenses against the public trade. 
 
 (10) Offenses against the public health, and the public police 
 or economy. 
 
 (11) Homicide. 
 
 (12) Offenses against the persons of individuals. 
 
 (13) Offenses against the habitations of individuals, and 
 
 (14) Offenses against private property. 
 
 It is evident that some of these subdivisions could never have 
 existed in the United States since the War of the Revolution. 
 Others of them are practically obsolete. 
 
 There is noted lack of harmony in the classification of offenses 
 in the Codes of the different States, though they adhere somewhat 
 to the same general outline. No attempt at a summary of them 
 will be made. 
 
 PROCEDURE. 
 
 There are two essentially different kinds of proceedings in 
 Criminal courts. One is known as a preliminary examination 
 or preliminary trial, the other as a final trial. The purpose of 
 the former is not to ascertain and judicially determine the guilt 
 or innocence of the accused, but simply to decide whether or not 
 there is sufficient probability of guilt to justify the court or mag- 
 istrate making the investigation to detain the accused until the 
 case can be passed upon by a court having jurisdiction to try it 
 on the merits. In such investigation the presiding officer acts 
 rather as a committing magistrate than as a judge. No indict- 
 ment or presentment is necessary as a basis for such examina- 
 tion ; there is no jury in the trial. The magistrate has no juris- 
 diction to acquit or convict the defendant. The extent of his 
 power is to release him from that complaint and arrest, if he does 
 not believe there is probable grounds to hold him for trial, or 
 to remand him to jail or compel him to give bond for his appear- 
 ance to answer trial before the proper court, in the event he 
 shall find that he is probably guilty. 
 
 The second kind of proceedings in criminal courts are trials 
 upon the merits. It is in these trials that the abstract rules of 
 Criminal Law established for the {protection of the public are
 
 526 AMERICAN ELEMENTARY LAW. 
 
 actually brought to bear upon and enforced against particular 
 individuals. These trials involve the exercise of all three phases 
 of judicial power, that is, the power to investigate conduct, to 
 determine and adjudicate its legal character, and pronounce 
 judgment thereupon, and to enforce such judgment, and all 
 courts which are to try cases of this kind must be organized with 
 reference thereto. 
 Juries. 
 
 It is a deeply rooted doctrine of the Common Law that every 
 person accused of crime shall be entitled to a speedy and public 
 trial by a jury of his peers. This rule obtains in the United 
 States courts and in the courts of practically all of the States, 
 though it is not imperative that a jury be provided in the trial 
 of some petty offenses. A jury in the Federal court means 
 twelve men and their verdict must be unanimous. The pro- 
 vision in the Fourteenth Amendment to the Federal Constitu- 
 tion providing for due process of law in the different States, does 
 not deprive the States of authority to abolish jury trials in crim- 
 inal cases nor require them to have twelve men on a jury or the 
 unanimous assent of all the jurors to a verdict. 
 
 Pleadings by the State. — One of the peculiar institutions of 
 the Common Law is the grand jury. This is an inquisitorial 
 body organized by and in connection with one of the more im- 
 portant courts of the country, to inquire into violations of the 
 Criminal Law within the county or district in which the court 
 is held, and to prefer appropriate charges against all persons 
 believed to be guilty of crime. Each grand jury is selected from 
 the citizens residing within the district or county in which the 
 court is held, having the qualifications prescribed by law. The 
 number of its members is not fixed absolutely but is usually not 
 less than twelve nor more than sixteen. Their investigations are 
 ex parte. Witnesses are examined by them under oath and if 
 a sufficient number of the grand jurors believe the party com- 
 plained against to be guilty, they prefer charges against him to 
 the court by which the jury is empaneled. 
 
 There were two methods at Common Law of preferring these 
 charges; one by presentment, which was a return of the charge 
 into open court by the grand jury itself without any formal 
 preparation of a bill by the prosecuting attorney. This method.
 
 r 
 CRIMINAL LAW. 527 
 
 though mentioned in the Constitution of the United States and 
 in the constitutions of a number of the states has practically 
 fallen into disuse. 
 
 The second method and the one now almost uniformly used in 
 the prosecution of serious offenses is by indictment. After the 
 grand jury has investigated the charge, and the requisite number 
 have voted in favor of prosecuting the accused, they instruct 
 the District Attorney or other prosecuting officer to prepare a 
 formal written charge against the accused, identifying him by 
 name or description, specifically stating the offense, and, as 
 held requisite in most States, the facts constituting the offense 
 preferred against him, together with the time and place where 
 the offense was committed. This instrument when prepared by 
 the prosecuting officer is ordinarily signed by the foreman of 
 the grand jury and by the grand jury brought into open court 
 and delivered to the judge or clerk. There are certain formal- 
 ities that must be observed by the prosecuting attorney in the 
 preparation of the paper. This paper, so prepared and presented 
 in court, is called an indictment. 
 
 The methods of preferring criminal charges against par- 
 ties which do not require action by a grand jury are information 
 and complaint. An information is a written instrument pre- 
 pared by the prosecuting officer charging the person with a vio- 
 lation of the criminal law and setting out the facts constituting 
 such violation, made under the official oath of the officer and 
 presented to, and filed in, the court having jurisdiction of the 
 offense. This is the usual method of prosecuting more serious 
 misdemeanors. 
 
 A complaint is a less formal written charge of a violation of 
 the law made by a private individual under oath and filed with 
 some criminal court or magistrate. This is the ordinary method 
 of presenting petty offenses in the inferior courts. 
 Pleadings by the Defendant. 
 
 All pleadings to the merits by the defendant in criminal cases 
 are oral, a plea of not guilty being sufficient for such purposes. 
 Pleas in abatement and motions to quash indictments, applica- 
 tions for change of venue, or for continuance, and other similar 
 matters, are required to be in writing, but the old Common Law- 
 rule as to oral pleading to the merits is still in effect.
 
 528 AMERICAN ELEMENTARY LAW. 
 
 In capital cases the defendant is arraigned before the court. 
 This consists in bringing the defendant in person into open court 
 and having the indictment read to him and requiring him to 
 enter a plea thereto. This always takes place before the trial 
 proper begins. 
 
 After the jury is empaneled the indictment is again read to 
 them in the presence of the defendant and he pleads orally guilty 
 or not guilty. 
 
 Evidence. 
 
 The defendant in every criminal case goes to trial protected 
 by a presumption of innocence, which continues to protect him 
 until his guilt is established by competent evidence beyond a 
 reasonable doubt. The ordinary rules of evidence obtain in 
 criminal cases in all matters not governed by some special rule 
 modifying the general rules of law. The defendant cannot be 
 compelled to testify against himself. At Common Law he is 
 not permitted to testify in his own favor but under the Federal 
 Statutes and the statutes of many of the States he is permitted 
 to do so. 
 Argument of Counsel 
 
 When the evidence in the case is concluded the attorneys in 
 the case make their argument for their respective clients. 
 Questions of law are referred to the judge, questions of fact to 
 the jury. 
 
 Charge and Verdict 
 
 After the argument, the judge charges the jury as to the 
 law of the case and the jury proceeds to consider the guilt or 
 innocence of the defendant. If the facts do not show the de- 
 fendant's guilt beyond a reasonable doubt it is the duty of the 
 jury to acquit him and bring in a verdict of not guilty. The effect 
 ' of such verdict is to free the defendant from all further criminal 
 liability for the offense for which he has been tried, or for any 
 less offense included therein, or for any greater offense based 
 upon the same act or omission of which the offense of which 
 he was acquitted is an essential element. 
 
 If the jury find the defendant guilty they return their ver- 
 dict into court accordingly. If it is in a jurisdiction in which 
 the jury assesses the punishment, they must name the penalty
 
 CRIMINAL LAW. 529 
 
 in their verdict ; if it is not in such jurisdiction they simply find 
 the fact of guilt and leave the punishment to the judge. 
 Judgments. 
 
 After the verdict has been received a proper judgment is pre- 
 pared and entered declaring the defendant innocent and releas- 
 ing him from the custody or adjudging him to be guilty and spec- 
 ifying the punishment which is to be inflicted upon him. If this is 
 a judgment of acquittal it is conclusive ; if it is a judgment of con- 
 viction it may be set aside by the court rendering it by a motion 
 for a new trial or in arrest of judgment, or by some higher court 
 upon appeal or on writ of error as the law of the particular jur- 
 isdiction may provide. 
 
 Constitutional Guarantees Relating to Criminal Matters. 
 
 Both in the Federal and State constitutions there are many 
 guarantees of rights to the individual relating to liability for 
 crime and the manner of proceeding in criminal cases. 
 
 We give those from the Federal Constitution. As it is im- 
 practicable to cover all the provisions of all the State constitu- 
 tions, we give those from the present constitution of Texas aa 
 typical of those of all the States. It must be understood that these 
 identical provisions do not occur in the constitution of the other 
 States, but the general tenor and effect of them is common to 'all 
 the States and hence a fairly good idea of the general trend of 
 American thought and law on this subject may be obtained by 
 a study of the quoted provisions as examples. 
 
 From the Constitution of the United States. — "The privilege 
 of the Writ of Habeas Corpus shall not be suspended, unless 
 when in Cases of Rebellion or Invasion the public safety may 
 require." Art. I, Sec. 9, No. 2. 
 
 "The Trial of all Crimes, except in Cases of Impeachment, 
 shall be by Jury; and such Trial shall be held in the State where 
 the said Crimes shall have been committed; but when not com- 
 mitted within any State, the Trial shall be at such Place or 
 Places as the Congress may by Law have directed." Art III, 
 Sec. 2, No. 3. 
 
 ' ' Treason against the United States shall consist only in levy- 
 ing War against them, or in adhering to their Enemies, giving 
 34
 
 530 AMERICAN ELEMENTARY LAW. 
 
 them Aid and Comfort. No Person shall be convicted of Treason 
 unless on the Testimony of two Witnesses to the same overt Act, 
 or on Confession in open Court." Art. Ill, Sec. 3. 
 
 "A person charged in any State with Treason, Felony, or 
 other Crime, who shall flee from Justice, and be found in another 
 State, shall on demand of the executive Authority of the State 
 from which he fled, be delivered up, to be removed to the State 
 having jurisdiction of the Crime." Art. IV, Sec. 2, No. 2. 
 
 ' ' The right of the people to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and seizures, 
 shall not be violated and no "Warrants shall issue, but upon prob- 
 able cause, supported by Oath or affirmation, and particularly 
 describing the place to be searched, and the persons or things to 
 be seized." Amendment IV. 
 
 "No person shall be held to answer for a capital, or otherwise 
 infamous crime, unless on a presentment or indictment of a 
 Grand Jury, except in cases arising in the land and naval forces, 
 or in the Militia, when in actual service in time of War or public 
 danger; nor shall any person be subject for the same offense to 
 be twice put in jeopardy of life or limb ; nor shall he be compelled 
 in any criminal case to be a witness against himself, nor to be 
 deprived of life, liberty, or property, without due process of law ; 
 nor shall private property be taken for public use, without just 
 compensation." Amendment V. 
 
 "In all criminal prosecutions, the accused shall enjoy the right 
 to a speedy and public trial, by an impartial jury of the State 
 and district wherein the crime shall have been committed, which 
 district shall have been previously ascertained by law, and to be 
 informed of the nature and cause of the accusation; to be con- 
 fronted with witnesses against him; to have compulsory process 
 for obtaining witnesses in his favor, and to have the Assistance 
 of Counsel for his defense. ' ' Amendment VI. 
 
 "Excessive bail shall not be required, nor excessive fines im- 
 posed, nor cruel and mi usual punishments inflicted." Amend- 
 ment. VIII. 
 
 "All persons born or naturalized in the United States, and 
 subject to the jurisdiction thereof, are citizens of the United 
 States and of the State wherein they reside. No State shall 
 make or enforce any law which shall abridge the privileges or
 
 CRIMINAL LAW. 531 
 
 immunities of citizens of the United States; nor shall any State 
 deprive any person of life, liberty, or property, without due proc- 
 ess of law; nor deny to any person within its jurisdiction the 
 equal protection of the laws." Amendment XIV, Sec. 1. 
 
 State Provisions — Texas Constitution Being Used As a Type. — ■ 
 ' ' The people shall be secure in their persons, houses, papers, and 
 possession from all unreasonable seizures or searches, and no war- 
 rant to search any place, or to seize any person or thing, shall 
 issue without describing them as near as may be, nor without 
 probable cause supported by oath or affirmation." Art. I, Sec. 9. 
 
 "In all criminal prosecutions the accused shall have a speedy 
 public trial by an impartial jury. He shall have the right to 
 demand the nature and the cause of the accusation against him 
 and to have a copy thereof. He shall not be compelled to give 
 evidence against himself. He shall have the right of being heard 
 by himself or counsel or both ; shall be confronted with the wit- 
 nesses against him, and shall have compulsory process for obtain- 
 ing witnesses in his favor. And no person shall be held 
 to answer for a criminal offense, unless on indictment of a grand 
 jury, except in cases in which the punishment is by fine or im- 
 prisonment, otherwise than in the penitentiary, in cases of im- 
 peachment, and in eases arising in the army or navy, or in the 
 militia, when in actual service in time of war or of public dan- 
 ger." Art. I, See. 10. 
 
 "All prisoners shall be bailable by sufficient sureties, unless 
 for capital offenses when the proof is evident ; but this provision 
 shall not be so construed as to prevent bail after indictment 
 found, upon examination of the evidence in such a manner as 
 may be prescribed by law." Art. I, Sec. 11. 
 
 "The writ of habeas corpus is a writ of right, and shall never 
 be suspended. The Legislature shall enact laws to render the 
 remedy speedy and effectual." Art. I, Sec. 12. 
 
 "Excessive bail shall not be required, nor excessive fines im- 
 posed, nor cruel nor unusual punishment inflicted. All courts 
 shall be open, and every person for an injury done him in his 
 lands, goods, person, or reputation shall have remedy by due 
 course of law." Art. 1. Sec. 13. 
 
 "No person, for the same offense, shall be twice put in jeop 
 ardy of life or liberty; nor shall a person be again put upon
 
 532 AMERICAN ELEMENTARY LAW. 
 
 trial for the same offense after a verdict of not guilty in a court 
 of competent jurisdiction." Art. I, Sec. 14. 
 
 ' ' The right of trial by jury shall remain inviolate. The Legis- 
 lature shall pass such laws as may be needed to regulate the same, 
 and to maintain its purity and efficiency." Art. I, Sec. 15. 
 
 ' ' No bill of attainder, ex post facto law, retroactive law, or any 
 law impairing the obligation of contracts, shall be made." Art. 
 I, Sec. 16. 
 
 "No citizen of this State shall be deprived of life, liberty, 
 property, privileges, or immunities, or in any manner disfran- 
 chised, except by the due course of the law of the land." Art. 
 I, See. 19. 
 
 ' ' No citizen shall be outlawed ; nor shall any person be trans- 
 ported out of the State for any offense committed within the 
 same." Art. I, Sec. 20. 
 
 "No conviction shall work corruption of blood, or forfeiture 
 of estate; and the estates of those who destroy their own lives 
 shall descend or vest as in case of natural death." Art. I, Sec. 
 21. 
 
 "Treason against the State shall consist only in levying war 
 against it, or adhering to its enemies, giving them aid and com 
 fort; and no person shall be convicted of treason except on the 
 testimony of two witnesses to the same overt act, or on confession 
 in open court. " Art. I, Sec. 22.
 
 CHAPTER IL 
 
 TORTS. 
 General Conception. 
 
 Our work up to this time has covered many, if not all, of the 
 general principles underlying the Law of Torts. We will now 
 attempt their more particular application to this branch of the 
 law, first by recapitulating some of these principles, and second 
 by taking up a few of the more important torts and showing their 
 application in these. 
 
 Civil Law embraces the mass of rules which govern the conduct 
 of individuals in their dealings with and conduct toward each 
 other. It is divided into Contract Law, and Non-Contract, or 
 Tort Law. 
 
 The first embraces all rules regulating rights and duties as- 
 sumed voluntarily by the parties. 
 
 The second embraces all the -rules regulating rights recognized 
 and duties imposed by law not depending on the assent of the 
 parties. 
 
 As the first class includes all legal rights and duties not 
 embraced in the latter, and as the former is susceptible of reason- 
 ably exact definition, it is usual to define the latter by use of gen- 
 eral terms, excepting therefrom the first class. This is conven- 
 ient, but to get practical benefit from it we must have some idea 
 of the exception, that is, of contract rights and duties. A con- 
 tract is defined to be: "An agreement between competent par- 
 ties, based on valid consideration, to do or not do certain things." 
 Here the duty to do or not do the thing is voluntarily assumed 
 or undertaken by the party subject thereto. The law did not 
 impose it upon him of its own force. It did not compel him to 
 enter into the contract. It left him entirely free to make the 
 agreement, or to leave it alone. Its only part in the matter is to 
 say to him: "If you go into the contract, and assume its duties, 
 you must observe them and carry them out." It recognizes the 
 duties after they are undertaken by the parties, but does not 
 impose them in the first in sin nee.
 
 534 AMERICAN ELEMENTARY LAW. 
 
 Thus, it is apparent that the basis of legal right and duty in 
 torts is the law, the will of the sovereign, independent of the 
 will of the party ; while the basis of legal right and duty in con- 
 tract is the will of the parties to the agreement, recognized by 
 law. 
 
 We will now consider the definition of a tort. 
 Definition. 
 
 The three following are from approved authorities: 
 
 1. "A tort is an act, or omission, giving rise, in virtue of the 
 Common Law jurisdiction of the court, to a civil remedy which is 
 not an action on contract." (Pollock.) 
 
 2. "An injury inflicted otherwise than by mere breach of con- 
 tract, or, to be more nicely accurate, a tort, is one's disturbance 
 of another in his rights which the law has created, either in ab- 
 sence of contract, or in consequence of a relation which a con- 
 tract has established between the parties." (Bishop.) 
 
 3. "A tort, then, is any wrong, not consisting in mere breach 
 of contract, for which the law undertakes to give to the injured 
 party some appropriate remedy against the wrong-doer." 
 (Cooley.) 
 
 From the point of view of the tort-feasor, a tort is an act, or 
 omission, in breach of duty imposed by law, not undertaken by 
 contract, for which the law gives a civil remedy. From the point 
 of view of the injured party, it is an act, or omission, in violation 
 of right, not created by contract existing in the injured party, 
 for which the law gives a civil remedy. 
 
 The idea of a tort implies the following : 
 
 (1) An injured person, who is always the one having the legal 
 right. 
 
 (2) A wrong-doer, always the one violating the right of the 
 other. 
 
 (3) A legal right in the injured person. 
 
 (4) A legal wrong by the tort-feasor. 
 
 (5) Injury to the one having the right, resulting directly and 
 proximately from the wrong of the other. 
 
 (6) A civil remedy for the injury. 
 
 There may be more than one injured party and more than one 
 wrong-doer, but there must always be at least one of each. 
 
 In the definitions given above the idea of civil remedy is quite
 
 TORTS. 535 
 
 prominent. This results from the very close, if not inseparable, 
 connection between right and remedy. In the definitions of legal 
 right given by many prominent writers this idea is the predom- 
 inating one, and the right is said not only to depend on, but 
 actually to consist in, the capacity to control by law the conduct 
 of others. This control, in almost all instances, being exercisable 
 only through application of legal remedias, and these being ordi- 
 narily afforded the private individual through civil action, the 
 naturalness of the expression is apparent. 
 
 Torts as Contrasted with Crimes and Breaches of Contract. 
 
 The same act may be a tort, a crime, and a breach of contract. 
 This is, of course, infrequent, but not impossible. The act as- 
 sumes these different aspects from different points of view. If 
 it be violative of the laws made to protect the public as such, 
 from that point of view it is a crime. If it be violative of the 
 law made to protect individuals, in absence of contract between 
 them, it is a tort; and if there be some contract between the 
 parties which, by its terms, duplicates their antecedent legal 
 rights and duties, it is a breach of contract. To illustrate: A 
 and B have a difficulty, and A threatens to follow this up by in 
 juring B. B takes the necessary steps to have A placed under 
 a peace bond. Afterward, A commits an assault and battery on 
 B, inflicting serious bodily harm. In so far as this battery was 
 .in violation of the criminal law, it is a crjme, and punishable as 
 such. In so far as it violates B's right of bodily security, it is 
 a tort; and in so far as it violates A's agreement to keep the 
 peace, evidenced by the peace bond, it is a breach of contract. 
 
 Again, the law fixes the rate's which may be charged by com- 
 mon carriers for particular services, and makes it criminal to 
 make higher charges on that account. A shipper tenders freight 
 to be carried, and the company gives him a bill of lading setting 
 out the lawful charges. The goods are carried, and the shipper 
 tenders the lawful and contract price of carriage and demands 
 the goods. The company demands a higher rate, and refuses to 
 deliver the articles. Here the overcharge is a violation of crim- 
 inal law, a crime, also a breach of the legally imposed duty to 
 carry at the rates fixed by law, a tort, and of contract duty evi- 
 denced by the bill of lading, a breach of contract. 
 
 In such case the State could pros-cute for the crime and thu
 
 536 AMERICAN ELEMENTARY LAW. 
 
 individual could sue for the tort, or breach of contract, as he 
 should choose. The criminal prosecution and the civil suit, 
 while growing out of the same transaction and supported by the 
 same evidence, would have no other connection. The prosecu- 
 tion for the crime would not affect the civil suit, nor could the 
 latter affect the former. The judgment rendered in either could 
 not be used as evidence in the other, but each must be tried and 
 determined according to the evidence introduced in it. The 
 shipper could not have two recoveries and satisfactions. In 
 many States he could sue and embrace two counts in his petition, 
 and thus present both phases of the case to the court, and could 
 recover on either, but as the measure of damage, in both aspects 
 of the case, would be the same, he could have only one judgment 
 and payment. If he sued on either the tort or breach of contract, 
 without joining the other, this would practically be an election 
 of remedies, which would, ordinarily, prevent a suit on the other. 
 
 These illustrations will make plain the exceptional cases in 
 which the same act may be looked at from three different points 
 of view ; crime, tort, and breach of contract. It is quite frequent 
 that the same act, or omission, is a crime and a tort. This is true 
 of all intentional unlawful injuries to the person, all cases of 
 theft, etc. 
 
 While it is true that the same act or omission may be both a 
 tort and a breach of contract, it is still true that no act or omis- 
 sion which is merely a "breach of contract is ever a tort. Unless 
 there be a duty imposed by law, not depending directly on con- 
 tract, there can be no tort, so that in all instances the act, or omis- 
 sion, in its tort aspect, must be a violation of a legally imposed 
 duty. 
 
 We have found that rights and duties between any particular 
 individuals change "with every change in the legal relations which 
 exist between them ; and as the differences in legal relations often 
 arise as a result of contract, it results that the legally imposed 
 duty growing out of the new relation which the contract has 
 created between the parties is in this indirect sense, dependent 
 on contract. 
 
 To illustrate: The law fixes, by general rules, the respective 
 rights of master and servant, and their duties. Ordinarily, these 
 may be modified or changed by agreement between the parties;
 
 TORTS. 537 
 
 but, in actual life, not one contract of hiring in hundreds at- 
 tempts anything of the kind, and the legally imposed conditions 
 exist unchanged. Now, the rights and duties of the parties are 
 fixed by law, and if either of them violates the right of the other, 
 thus fixed, he commits a tort. This tort would not have been 
 possible but for the contract, by which the one became master 
 and the other servant ; yet the terms of that contract did not ex- 
 pressly cover the right violated. The same is true as between 
 passenger and carrier. 
 
 In the cases in which parties enter into some special relation 
 and agree on their rights and duties therein, and make the agree- 
 ment to correspond exactly with the law fixing such rights and 
 duties, the rights and duties may be said to have a dual basis, 
 one contract, and the other tort law. A violation of these duties 
 would, in such case, be both a breach of contract obligation and a 
 tort. The wrong would be a breach of contract, but not a mere 
 breach of contract, for in its other aspect the wrong is a tort. 
 This is what Mr. Cooley means when he says a tort is a "wrong 
 not consisting in a mere breach of contract." 
 
 How Torts May be Committed. 
 
 Mr. Cooley tells us that "one may become liable in an action 
 for tort : 
 
 (1) "By actually doing, to the prejudice of another, some- 
 thing he had no legal right to do. 
 
 (2) "By doing something he may rightfully do, but wrong- 
 fully or negligently doing it by such means, or at such time, or 
 m such manner that another is injured. 
 
 (3) "By neglecting to do something which he ought to do, 
 whereby another suifers an injury." 
 
 This statement is very broad; but, for general purposes, it 
 may be accepted as correct. 
 
 The wrong may be either doing or failing to do. This is the 
 same idea that Mr. Pollock expresses in his definition in the 
 terms "act or omission." This is embraced in Judge Cooley 's 
 definition by the word "wrong," though the idea is not made 
 prominent by him in tha'c connection. 
 
 In either case, the act, or omission, must be a violation of a 
 legal right. The fact that one does, or omits to do. and that 
 injury results, is not sufficient. This might be an inevitable ac
 
 538 AMERICAN ELEMENTARY LAW. 
 
 cident, or the act done might he in the proper exercise of a legal 
 right or performance of a legal duty. 
 
 The Nitroglycerine Case (15 Wall.) is a fine example of the 
 first. Shooting a person in self-defense is an example of the sec- 
 ond, and the execution of a prisoner under legal sentence is an 
 example of the third. In each of these cases there is an act per- 
 formed by one, directly and proximately resulting in injury to 
 another, but no one of them is a tort, for the element of breach 
 of legal duty is wanting in each. 
 
 As I understand Mr. Cooley's statement, quoted above, in the 
 first subdivision he includes all acts which are in themselves 
 violations of legal duty, no matter how performed ; as, if A shall 
 trespass on B 's property, or convert it to his own use. Here the 
 whole enterprise is unlawful, and he has no right to do the thing 
 he has undertaken. 
 
 In the second subdivision, he includes those cases in which the 
 general purpose and enterprise is lawful, and within the legal 
 right of the person undertaking it, but in carrying out this law- 
 ful purpose he does, or omits, something contrary to his legal 
 duty; as in the negligent operation of a railroad train on the 
 road of the company. Here the company has the right to run 
 the train, but in the particular case under investigation one of 
 its employes does some act contrary to his legal duty, and damage 
 results. Here the doing of the thing undertaken by the com- 
 pany, viz. : the running of the train, was lawful, but the manner 
 in which it was done was unlawful. 
 
 In the third subdivision, he includes omissions of legal duty, 
 or ordinary cases of negligence. 
 
 My own ideas on this subject have been indicated in previous 
 chapters. They may be briefly stated thus : No act, or omission, 
 can be a tort, unless it is a breach of legal duty. The respective 
 legal rights and duties existing between any two persons depend 
 upon the conditions of fact, existing between or regarding them. 
 Any act, or omission, which violates a non-contractual right of 
 the one, and the correlative legal duty of the other, and which 
 directly results in injury to the one having the right, is a tort. 
 In the great majority of cases, whether or not the act, or omis- 
 sion, is a violation of legal duty depends on the nature of the 
 act, or omission, without reference to the motive actuating it.
 
 TORTS. 539 
 
 In some instances, an act, or omission, may be, in its nature, a 
 technical violation of another's right, yet for considerations of 
 public policy this invasion is ordinarily excused and not declared 
 unlawful; but this excuse will be withdrawn if the act, or omis- 
 sion, be accompanied with an evil motive. In such cases, whether 
 or not it is unlawful will be determined by the motive actuating 
 it. When it is unlawful on this account, of course it becomes 
 tortious, and the injury directly resulting must be compensated 
 for. 
 
 STATUS AS AFFECTING PARTIES TO TORTS. 
 The Party Injured. 
 
 The rule of general, if not universal, application is: All per- 
 sons, natural or artificial, may have and enjoy legal rights, and 
 have redress through the courts for violations thereof. 
 
 This rule embraces the Federal and State Governments, public 
 municipal corporations, as counties, cities, towns, etc., private 
 corporations lawfully organized, or existing de facto, partner- 
 ships and natural persons, whether sui juris or laboring under 
 disability in law or fact, or both, whether resident, or nonresi- 
 dent. The only exceptions to this rule, if there be exceptions, 
 are found in the case of an alien enemy, and certain private cor- 
 porations: (1) Those which are not entitled to protection under 
 the Federal Constitution, either on account of their own nature, 
 or of the particular transaction out of which the litigation arises. 
 (2) Those which are forbidden by law to acquire or hold prop- 
 erty of certain designated kinds. But, even as to these, their 
 property would be protected by the State from unlawful inter- 
 ference by individuals,' and would only be subject to confiscation, 
 forfeiture, or escheat to the proper government. 
 
 The Wrong-doer. 
 
 Sovereignty. — The highest and most direct representatives of 
 sovereign power, that is, the Federal Government and the several 
 State governments, are immune from suit for tort, unless the' 
 government involved shall have given express permission for the 
 suit to be brought. If it does give such permission, it is, in the 
 main, subject to the same rules of substantive law as a privntc 
 party would be, under similar facts. 
 
 Counties. — Municipal corporations proper, such as counties,
 
 540 AMERICAN ELEMENTARY LAW. 
 
 school districts,- etc., are immune from suit for tort, unless there 
 be some constitutional or statutory provision making them liable. 
 
 Incorporated Cities and Towns. — These may be created in two 
 ways: (1) By special charter; (2) under general incorporation 
 law. It was thought, at one time, that this made a difference in 
 their liability for torts, but it is now settled that it does not, ex- 
 cept in such special matters as may be specifically set out in the 
 special charter of a particular city. The law, as to these corpo- 
 rations, is somewhat unsettled. The general doctrine is that, as 
 to their business affairs and interests, and torts committed in 
 connection with or in prosecution of these, they are liable; while 
 for wrongs committed in exercise of their general governmental 
 power and duties, they are not. Thus, we find that a city is not 
 responsible for the illegal acts of a police officer in making 
 arrests, nor in performing other acts in connection with his office, 
 nor for the destruction of property to prevent spread of fire. 
 But for injuries resulting from defective conditions of the streets, 
 the city is liable, provided the defect is the result of negligence 
 on its part. 
 
 Public Officers. — Passing from these public and quasi-public 
 corporations, we come to public officers. These are persons to 
 whom has been delegated the exercise of certain governmental 
 powers. Within the limits of the powers thus delegated, they 
 represent sovereignty, and they are free from any liability for 
 acts done lawfully, within the scope of their authority. When 
 they go beyond this proper sphere and do, or attempt to do, acts 
 under pretext of lawful authority which are not so in reality, 
 they may or may not be liable, according to the nature and cir- 
 cumstances of the case. If the duty attempted, or pretended to 
 be performed, is ministerial, for any wrongful act or mistake re- 
 sulting in injury to another the officer is responsible. If the 
 duty be not ministerial, but is one which requires the exercise 
 of official discretion, as that term has been explained, there is no 
 liability, unless it may be in a few extreme cases. 
 
 Natural Persons. — Every normal person is responsible for his 
 own wrongful conduct. 
 
 As a rule, insane persons are responsible for actual damage 
 occasioned by their tortious conduct. In those exceptional cases 
 in which evil motive or guilty knowledge is an element of a tort,
 
 TOBTS. 541 
 
 they can not commit them. They are never responsible for ex- 
 emplary or punitive damage. 
 
 Infante are responsible for their torts. When they are too 
 young and immature to entertain evil motive, they can not com- 
 mit a tort having such an element. If, however, they have the 
 mental capacity to entertain such motive and, in fact, do so, they 
 are then responsible just as adults. Parents are not, as such re- 
 sponsible for the torts of their children. 
 
 Married women are responsible for torts committed by them 
 in the same way and to the same extent, as other persons, with 
 the single exception of torts committed under compulsion of the 
 husband, in which case they are excused. 
 
 Combinations of Natural Persons. — Private corporations, in- 
 cluding those organized for strictly private purposes and those 
 organized for public purposes prosecuted for private gain, are 
 responsible for torts committed by their proper representatives 
 in the prosecution of their business. The stock-holders, board of 
 directors, and general officers of a corporation are practically 
 considered as the corporation itself when acting for it and within 
 the scope of their authority, hence the evil motive of such par- 
 ties is regarded as the evil motive of the corporation. Subordin- 
 ate officers, agents, and servants are regarded, not as the corpo- 
 ration, but as its substitutes. The company is responsible for 
 their torts committed within the scope of their employment on 
 the same principles and to the same extent that a natural per- 
 son is responsible for the tort of his agent or servant. 
 
 Partnerships are regarded as liable for the torts of any mem- 
 ber of the firm, committed within the scope of the partnership 
 business, and for the torts of their agents and servants just as 
 a natural person would be. 
 
 In joint stock companies, not incorporated, the management of 
 the business is entrusted to designated officers and representa- 
 tives of the concern. For torts committed by them within the 
 scope of the business and of their employment, the funds of the 
 association are responsible. 
 
 In ordinary combinations for religious, charitable, or other 
 nonbusiness purposes, the law does not recognize the different 
 members by reason of their membership, as either agents of the 
 concern or of the other members, and for torts committed by the
 
 542 AMERICAN ELEMENTARY LAW. 
 
 members of such body in connection with the enterprise, only 
 those who do the wrong or advise or encourage or receive bene- 
 fits from it are held responsible. 
 
 Persons among whom there is no combination or general pur- 
 pose, but who combine together for the purpose of committing a 
 tort or a series of torts, are regarded simply as joint tort-feasors 
 and are responsible as such. The very general rule being that 
 each and every one is responsible for the entire damage done by 
 all. 
 
 For Whose Tortious Conduct One is Responsible. 
 
 (1) Every normal person is himself responsible for his own 
 wrongful conduct. Every one is responsible for torts in which 
 he joined, or participated. All are regarded as participating in a 
 tort who actually join in it, or who aid, counsel, or advise its 
 commission. This results from the doctrine of co-operation. 
 
 (2) The husband is responsible for the torts of the wife. This 
 results from their legal identity. 
 
 (3) The parent is not, as such, responsible for the tort of the 
 child, nor the child for the tort of the parent. 
 
 (4) The master is responsible for the tort of the servant, com- 
 mitted within the scope of the latter 's employment. As between 
 them and persons having notice of the facts, the scope of employ- 
 ment is fixed by the agreement between the parties and the mas- 
 ter's instructions to the servant unless the instructions seek to 
 free the master from duty already owed by the master to the in- 
 jured person in which case they are of no effect. As to other 
 persons, the scope of the employment is what a man of ordinary 
 judgment and capacity would reasonably conclude it to be, from 
 all the facts and circumstances of the case. The foregoing lia- 
 bility is based upon the doctrine of substitution. The master is 
 also responsible for the default of the servant, when he has en- 
 trusted him with the discharge of a duty resting on the master, 
 and the servant has failed to perform that duty. This liability 
 is based on nonassignability of duty. 
 
 (5) The rules on this subject governing principal and agent 
 are the same as those between master and servant. 
 
 (6) Independent contractors and employers are neither re- , 
 sponsible to third persons for the torts of the other, simply by 
 reason of their relation. If, however, they act with common un-
 
 TORTS. 543 
 
 derstanding, both will be liable ; or, if the contractor is employed 
 to discharge a duty resting upon the employer, and fails, both 
 are responsible. 
 
 Damages. — In each of the cases mentioned above in which one 
 person is held liable for the tort of the other, the liability ex- 
 tends to full compensation to the injured party for the damage 
 sustained. This is true whether the particular tort involve the 
 existence of evil motive or not. For the purpose of adjusting 
 and determining compensation for actual injury the law imputes 
 the evil motive of the actual tort-feasor to him who is responsible 
 for the wrongdoer's conduct. 
 
 When we pass from compensatory to exemplary damage, the 
 rules as to liability differ. The general doctrine is that a per- 
 son who has no actual evil motive in connection with the wrong- 
 doing is not responsible for exemplary damages. . 
 
 To this rule there are several exceptions: 
 
 (1) The weight of authority holds that if persons co-operate 
 together in the commission of a tort for the furtherance of some 
 joint purpose or to accomplish any end desired by all, the evil 
 motive of any one of the joint wrong-doers will be imputed to each 
 of his associates and each tort-feasor will be held responsible to 
 the same extent as the most guilty. The less guilty having pur- 
 posely co-operated with the most guilty are by the weight of au- 
 thority placed upon the same footing as they. 
 
 (2) The existence of the wife being legally merged into that 
 of the husband, her evil motives are regarded as his and he is 
 responsible for exemplary damages for her torts just as if com- 
 mitted by himself. 
 
 (3) The master is not, by reason of the relationship, respon- 
 sible for exemplary damages for torts committed by the servant 
 with evil motive, not participated in by tbe master. The same 
 is true as to principal and agent. Tn either case, however, if 
 the master or principal participates in the evil motive of his 
 representative at the lime the wrong was done, or if subsequently , 
 with full knowledge of the facts, he approves and ratifies the 
 wrongful conduct of his representative, he makes the evil motive 
 his own and is responsible for exemplary as well as actual dam- 
 age.
 
 544 AMKRICAN ELEMENTARY LAW. 
 
 For What Consequences of Conduct Liability Attaches. 
 
 Each wrongdoer is legally responsible for all the injurious 
 consequences of his conduct which he intended to result there- 
 from, and also for those consequences which a man of ordinary- 
 prudence and judgment, situated as he was at the time, would 
 reasonably have anticipated as its natural and probable results. 
 This is simply an application of the doctrine of proximate cause 
 in the law of torts. Under it the intended wrong, however ac- 
 complished, must be compensated for, and unintended injuries, 
 which are both natural and probable results of the wrong, must 
 be made good. In the case of intended wrongs, the wrong-doer 
 cannot avoid liability by saying the hurt was not a reasonable or 
 natural consequence of his conduct. He designed to accomplish 
 the result and did so, and is therefore liable. In the case of in- 
 jury resulting as the natural and probable consequence of the 
 wrong, he cannot escape liability by saying that he did not in- 
 tend the hurt. The law makes it the legal duty of every one to 
 anticipate the natural and probable consequences of his conduct, 
 and holds him responsible for such consequences so far as a rea- 
 sonably prudent person, situated as he was. would have fore- 
 seen them. The law having imposed the duty of care will not 
 permit the wrongdoer to escape liability by proving that he did 
 not comply with his legal obligation in that respect. 
 
 The law, however, limits liability for unintended consequences 
 to those which should have been foreseen as both natural and 
 probable. It must draw a line of separation somewhere, and 
 practical justice, in a very large majority of the cases, is sub- 
 served by including natural and probable consequences and ex- 
 eluding all results which do not have both these qualities. 
 
 DISCHARGE OF LIABILITY FOR TORT. 
 
 There are a number of ways in which liability for tort may be 
 discharged. The most common of these are voluntary settlement 
 between the parties and suit and satisfaction of the judgment. 
 
 Where all the parties interested are sui juris, they are as free 
 to contract with regard to liability for tort as for any other mat- 
 ter. "Where they voluntarily agree upon the amount of dam- 
 age and pay the amount stipulated, the matter is at an end. If, 
 however, they simply agree upon the amount and the wrongdoer
 
 TORTS. 545 
 
 promises to pay it in the future, if he fails to pay at the agreed 
 time, this gives the injured party the option to insist on the 
 promise, or to repudiate the agreement and sue for the tort. 
 
 If there are a number of tort-feasors, satisfaction in full by 
 any one of them satisfies the claim against all. Thus, if two men 
 commit a battery upon another, and the injured party has a set- 
 tlement with or sues one of them and receives from him the 
 money, either agreed upon as full compensation, or adjudged by 
 the court as such, this discharges all liability on the part of both 
 wrongdoers. 
 
 All joint tort-feasors are regarded as liable to the full extent 
 of the damage. The injured party may sue them all together, 
 each by himself, or in such groups as he sees fit. If he sues them 
 separately, neither these suits, nor the recovery of judgment in 
 some of them will interfere with the prosecution of the other 
 suits. The plaintiff is entitled to judgment against each of the 
 wrongdoers. 
 
 The injured party is, however, only entitled to one satisfac- 
 tion. If he collects in full any one of the judgments, this can- 
 cels the judgment for damage in each of the other cases. He 
 could still collect the costs in each case. The plaintiff has the 
 privilege of selecting which judgment he will collect. If the 
 judgments differ in amount the tort-feasors cannot compel the 
 plaintiff to receive payment of any but the largest judgment. 
 
 Liability for tort may be discharged by the running of the 
 statute of limitations, or by marriage between the parties, and, at 
 Common Law, by death of either of the parties if the tort in- 
 vaded a personal right. 
 
 Indemnity and Contribution. 
 
 Indemnity is payment in full of money which one person has 
 paid out in the settlement of a legal demand against another. 
 Contribution is partial payment of money under such circum- 
 stances. 
 
 The general rule is that neither indemnity nor contribution 
 is allowed between or among tort-feasors. The basis of this rule 
 is the old principle that no cause of action arises in behalf of a 
 person on account of a legal wrong committed by him, or for 
 which he is legally responsible. Stated a little differently, the 
 rule is that the law does not undertake to enforce settlement nor 
 35
 
 546 AMERICAN ELEMENTARY LAW. 
 
 I 
 
 adjust accounts growing out of intentional legal wrongs between 
 the wrongdoers. Wherever this doctrine is applicable, neither 
 indemnity nor contribution is allowed. 
 
 It, however, sometimes occurs that none of the tort-feasors 
 are intentional wrongdoers, and still more frequently that some 
 of the tort-feasors are guilty of the actual wrong, while others 
 are in fact innocent of any personal wrong doing but are held 
 responsible to third parties on account of some relation between 
 them and the wrongdoer. Occasionally the actual wrongdoer is 
 innocent of any wrongful intent, and is hence less guilty than 
 one who instigated or caused him to commit the wrong. In such 
 cases as these the law sometimes admits indemnity or contribu- 
 tion according to the facts of the case. 
 
 If two persons buy a piece of property in good faith and pay 
 for it, actually believing the title to be good and take possession 
 of it and the true owner should sue one of them only, and recover 
 and collect damages, the law would permit the man paying tht 
 damage to compel the other party to contribute his share of the 
 loss. 
 
 If a master employ a servant and gives him proper instruc- 
 tion not to commit certain wrongful acts, and the servant, never- 
 theless, does commit such acts to the injury of another under 
 such circumstances that the master is compelled to pay the dam- 
 ages, the law permits the master to recover the entire amount of 
 damage from the servant. 
 
 If a master is in possession of, and claims a piece of property, 
 and orders his servant to perform some act upon the property 
 which damages it, as quarrying rock, the true owner of the prop- 
 erty could compel the servant to pay him the full amount of dam- 
 age. The command of the master and the good faith of the serv- 
 ant would be no defense against the injured third party, but 
 under such circumstances, the servant could compel the master to 
 indemnify him for the full amount of the damage. 
 
 These illustrations show the spirit of the rule allowing adjust- 
 ments through the courts between persons, neither of whom is 
 an intentional wrongdoer, and in favor of the less guilty of two 
 wrongdoers, against the more guilty.
 
 CHAPTER III. 
 
 SOME NAMED TORTS. 
 
 "We will next consider a few named torts which affect both per- 
 sonal and property rights, and then take up some affecting each 
 of these in the order named. 
 
 NEGLIGENCE. 
 
 The first is Negligence. "We have found that tortious conduct 
 may be either positive, by acts, or negative, by omissions, that is, 
 by the doing of a thing forbidden by law, or failing to do some- 
 thing required by law. The affirmative acts are so many and so 
 different that the law deals with them under distinct heads or 
 names, but it deals with a great many omissions under the one 
 head of negligence. 
 
 Definition. 
 
 Negligence is frequently defined as, "Failure to use that degree 
 of care which the law imposes on the party, as a legal duty, under 
 all the circumstances of the particular case." 
 
 This degree of care varies with the different circumstances and 
 facts of each class of cases. Sometimes specific acts are required ; 
 in such case failure to meet the requirement is negligence per se. 
 or negligence in law. Most frequently, however, specific con- 
 duct is not required, but the degree of care to be observed is pre- 
 scribed. 
 
 Negligence is used to cover failures of legal duty, intended as 
 well as inadvertent. This is true, at least to the extent thai a 
 charge of negligence is supported by proof of the existence of a 
 legal duty and failure to perform it, and the defendant can not 
 relieve himself from liability by showing that the wrong was 
 done intentionally. 
 
 The general standard of care is such as a reasonable and ordi 
 narily prudent person would have observed, under all the cir 
 cumstances of the case. This varies with the facts of each case.
 
 548 AMERICAN ELEMENTARY LAW. 
 
 Where the relations between the parties are general, that is,, 
 those incident to ordinary social conditions, a less degree of care 
 is required between them than is in those eases where special 
 relations exist, involving confidence; or where weakness or in- 
 capacity on the part of one of the persons is shown, as in case of 
 the conduct of an adult toward young children, or adults sub- 
 ject to some infirmity, permanent or temporary, known to the 
 other party; or in cases where one is, for the time being, in the 
 power and control of another, as carrier and passenger, attorney 
 and client, doctor and patient, etc. It is manifest that an ordi- 
 narily prudent and reasonable person would exercise different 
 degrees of care under these different circumstances, and so the 
 care required by law varies accordingly. 
 
 Negligence as Matter of Law or of Fact. 
 
 There are some classes of cases in which the facts indicate so 
 clearly the degree of care which a reasonably prudent person 
 would use that the law itself applies the standard above indi- 
 cated, and announces the result in a fixed rule of law. In all 
 other cases the law announces the controlling principles, and re- 
 quires the judge to instruct the jury regarding it, and requires 
 them to make the application, and to determine, under the par- 
 ticular facts of the case, whether the person whose conduct is 
 under investigation did or did not exercke such care as an ordi- 
 narily prudent person would have, under the same circumstances. 
 In those instances in which the law has itself applied the prin- 
 ciple and announced the rule, such rule is controlling, and must 
 be obeyed by both judge and jury. To illustrate : The law says, 
 when one person places himself in the care of another to be car- 
 ried as a passenger for hire, that an ordinarily prudent person 
 acting as such carrier would use a very high degree of care for 
 the safety of the passenger, and so it announces, as a rule of law 
 in such cases, that the carrier must use the highest practical care 
 to secure the passenger's safety. 
 
 Again, in the case of mature persons and young children, com- 
 mon experience teaches that a man of ordinary prudence exer- 
 cises more care for the safety of young children with whom he 
 comes in contact than he does as to adults. The law recognizes 
 this practical condition, and says that incapacity fo care for 
 one's self must be taken into account, when the safety of young
 
 SOME NAMED TORTS. 549 
 
 children is concerned, and will hold that to be negligence, in the 
 case of such child, which would not be in case of an adult. 
 
 Sometimes the legislature makes this application, and declares 
 certain acts or omissions are negligent. Usually, such statutes 
 are based upon the principle we have been discussing. That is. 
 in the judgment of the legislature, a reasonably prudent person, 
 under given circumstances, would do certain things, and hence 
 it declares that failure to do these things is negligence. Again, 
 in other instances, the legislature, without declaring that certain 
 acts or omissions shall be negligence, recognizes the degree of 
 care which would be used by a person of ordinary prudence. 
 under certain circumstances, and declares, as a matter of law, 
 that such care must be observed by all persons, under such cir- 
 cumstances. 
 
 More frequently, however, the degree of care is not indicated 
 or announced as a matter of law, further than this is done in 
 announcing the general doctrine that every person must observe 
 that degree of care for the safety and well-being of others which 
 a reasonable and ordinarily prudent man would observe, under 
 all the circumstances of the case, and then leaving to the jury to 
 say, in each case, whether that degree of care has been exercised. 
 
 In all cases, the degree of care required, whether this has been 
 specifically designated by the courts or legislature, or is expressed 
 in the general doctrine of such care as an ordinarily prudent per- 
 son would use, is a matter of law, and whether or not the re- 
 quired care has been used, in any given case, is always a matter 
 of fact for the jury, except in the few instances in which the 
 legislature has specifically enacted that doing an act, on the one 
 hand, and not doing it, on the other, is negligence per s&. 
 Right to Contract Against Liability for Negligence. 
 
 Many nice questions arise as to the right of parties to vary, 
 by contract between them, these general rules as to the degree of 
 care to be observed between them as incidental to certain rela- 
 tions. In other words: Will the law permit parties, by agree- 
 ment between them, to change, as between themselves and in re- 
 gard to certain matters, the general rules of law as to the care 
 to be observed between them? In many instances it will; in 
 some instances, from considerations of public policy, it will not. 
 
 It is not unusual to see expressions in law books that a per-
 
 550 AMERICAN ELEMENTARY LAW. 
 
 son is not permitted to relieve himself, by contract, from the 
 consequences of his own negligence. This must always be taken 
 in connection with the kind of care under consideration and the 
 facts of the particular suit. 
 
 On the one hand, we have cases of common carriers of freight. 
 At Common Law they are responsible for the safe carriage and 
 delivery of the goods within a reasonable time, and could only be 
 relieved from such responsibility by act of God, the public enemy, 
 inherent vice in the articles transported, or wrong by the shipper 
 affecting the thing shipped. This extreme liability at Common 
 Law may be limited to the point that it reaches the carrier's 
 negligence, and beyond that it can not go, a contract to relieve 
 a carrier from the results of its own negligence being absolutely 
 void. 
 
 On the other hand, the Common Law permitted persons enter- 
 ing into the relation of master and servant to make such modifi- 
 cations of the ordinary rules as to care between them as they saw 
 It ; provided they did not undertake to consent to willful wrong, 
 mere inadvertence could be contracted against. 
 
 Again, in contracts of fire insurance, the insuror is never re- 
 lieved from liability because the fire resulted from mere inad- 
 vertence of the insured. "Willful wrongs of the insured are not 
 covered by the contract, but the very purpose of agreement is to 
 cover loss from carelessness. 
 
 These cases illustrate the wide extremes of the law on this ques- 
 tion. 
 
 The practical result of the cases seems to be that liability for 
 negligence consisting in mere inadvertence may ordinarily be 
 contracted against. In exceptional cases, it can not. Liability 
 for negligence consisting in willful wrong-doing can not be con- 
 tracted against. 
 
 This practical difference between inadvertence and willful 
 wrong is recognized in other ways: Contributory negligence of 
 the injured party, or of some one for whose conduct he is re- 
 sponsible, will constitute a complete defense in cases founded on 
 inadvertence, but is never a defense in cases of willful injury. 
 Exemplary damages are never allowed for inadvertence, unless 
 it is so great as to evidence gross recklessness, but are always re- 
 coverable for willful injuries.
 
 SOME NAMED TORTS. 551 
 
 Remote and Proximate Cause. 
 
 As negligence, to be actionable, must always be a breach of 
 legal duty, so it must also be the direct and proximate cause of 
 the injury complained of. It is but the negative way of violat- 
 ing a legal right, and the same doctrine as to remote and proxi- 
 mate cause and the natural and necessary consequences flowing 
 from it apply that do in affirmative torts. It is not required that 
 the injurious consequences should have been foreseen, nor that 
 they necessarily must have resulted from the failure of duty. 
 It is sufficient if they result naturally and directly, without the 
 intervention of any other independent agency, and might rea- 
 sonbly have been anticipated as a consequence of the negligence. 
 
 If an independent agency intervene, this will break the causal 
 connection, unless, under all the circumstances of the case, this 
 intervention itself should have been reasonably anticipated. The 
 usual illustration of this is the famous "squib" case. In that 
 case one person threw a lighted squib, or explosive, into a crowd, 
 not caring upon whom it might light. The person on whom it 
 fell threw it from him onto some one else, who in turn threw it 
 on another, until finally it exploded, and injured one who was, 
 primarily, in no danger from it. He sued the person who threw 
 it originally. The latter pleaded that he was not the person who 
 threw it on the plaintiff, and that his act did not bring about the 
 injury. The reply was : ' ' But for your wrongful act, the injury 
 would not have occurred ; and any reasonable person would have 
 foreseen that each man on whom the squib was thrown would 
 throw it from him, and that such action was, therefore, within 
 the scope of the consequences which an ordinarily prudent per- 
 son would have looked upon as probably and naturally resulting 
 from the defendant's act," and he was held liable. 
 
 So, in this tort, as in all others the wrongdoer is legally liable 
 for all the injuries directly and proximately resulting from the 
 wrong. 
 Failure of Duty Necessary to. 
 
 As stated above, the law requires every person to use such care 
 for the safety and well-being of others as an ordinarily prudent 
 person would have used, under all the circumstances of the case, 
 and failure to use such care is negligence. Kor negligence to be 
 actionable in behalf of any particular person, it must be a failure
 
 552 AMERICAN ELEMENTARY LAW. 
 
 to perform some duty due to him. Often the same acts or omis- 
 sions will be actionable negligence as to one person, but not to 
 another. "When this is true, it is always because there are differ- 
 ent relations existing between the parties. The most frequent 
 and perhaps the clearest illustration of this, is found in the oper- 
 ation of a railroad passenger train. The passengers pay fare to 
 be carried from one place to another. The company undertakes 
 to carry them in consideration of this fare so received. This 
 contract it cannot possibly fulfill without employing others to 
 manage the train, so it takes of the money received from the pas- 
 sengers and pays other persons to act for it in running the train, 
 thus enabling it to meet its obligations. It is perfectly apparent 
 that the relations between the company and these classes of per- 
 sons are very different. The law recognizes these differences, 
 and says the care it must observe for the safety of these classes 
 shall be different. As to the passengers, as we have before stated, 
 it requires the highest degree of practical care ; as to the servants, 
 only ordinary care. Now, it may readily be conceived that an 
 accident might occur under such circumstances as to be action- 
 able negligence as to the passengers which would not be such as 
 to the servants. The same thing is true as to the care of one's 
 own premises. The owner of land must use ordinary care not to 
 have his premises in such a condition as to result in injury to his 
 servants or guests, and if he does not do this, and injury results 
 to such a person, he is responsible. But he does not owe this same 
 duty to trespassers, and if one unlawfully comes on his premises 
 and is injured there, he can not recover, unless he can show such 
 extreme neglect and indifference as to be equivalent to willful 
 injury. 
 
 Contributory Negligence. 
 
 This is negligence on the part of the person injured, combin- 
 ing with the negligence of the party complained of, and directly 
 and proximately contributing to the injury. The test of negli- 
 gence here is, the same as applies to the conduct of the party 
 complained of; that is, it is a failure to use that degree of care 
 for one's own safety which a person of ordinary prudence would 
 have used, under the circumstances of the case. 
 
 It is a complete defense against injuries inflicted by simple
 
 SOME NAMED TORTS. 553 
 
 negligence. It does not, however, constitute a defense against a 
 willful wrong. 
 
 As a party's conduct is to be judged by all the facts and cir- 
 cumstances of the case, it follows that, if the wrong of the party 
 complained against has put the complaining party in a position 
 of real or apparent peril, the conduct of the complainant is to 
 be judged by those circumstances ; and, also, the frailty of human 
 judgment is to be taken into account, and he is not, under such 
 circumstances, to be barred from a recovery because he did not 
 act as coolly and deliberately as he would have under other cir- 
 cumstances. He is required to do only what a reasonably prud- 
 ent man would have done, under the facts as they reasonably ap- 
 peared to him. 
 
 Imputed Negligence. 
 
 This is negligence of one person imputed or charged up to 
 another. 
 
 We have discussed the principles on which one person is legally 
 liable for the conduct of another. These rules apply here. The 
 master is responsible for the negligence of his servant in the con- 
 duct of his business ; the same is true of principal and agent. Of 
 course, it must be negligence within the real or apparent scope 
 of his authority. Ordinarily, the husband is responsible for the 
 negligence of the wife, on the principles already discussed. The 
 parent, as such, is not responsible for the negligence of the child, 
 nor the child for the parent. 
 
 The negligence of each joint tort-feasor is imputed to all the 
 others if the facts are such that the omission comes within the 
 scope of the common enterprise. This doctrine also applies as 
 to contributory negligence; and if one for whose conduct the 
 injured party is responsible be guilty of contributory negligence, 
 this defeats the liability. 
 
 It has been held that the negligence of the husband contributing 
 to the injury of the wife will ordinarily defeat her right to re- 
 covery, though his joinder with another in an intentional wrong 
 against her will not. 
 
 Contributory negligence of a servant will defeat recovery by 
 the master; common or private carriers for hire are not servants 
 of their passengers, and if they are guilty of such conduct as to
 
 554 AMERICAN ELEMENTARY LAW. 
 
 constitute contibutory negligence, unless it is participated m by 
 the injured party, it will not defeat recovery by him. 
 
 Remedies. 
 
 Remedies for negligence are adapted to the particular case. 
 The law enjoins the use of care both as to the persons and the 
 property of others. "Whenever the legally required care is not 
 used and injury directly results, whether it be to person or prop- 
 erty, appropriate remedy will be awarded. In the great majority 
 of cases this remedy will be moneyed compensation for the hurt 
 sustained. If the injury is to property the amount is not usually 
 difficult to ascertain. If the thing be entirely destroyed the or- 
 dinary measure is its fair market value at the time and place of 
 its destruction. If it be not entirely destroyed, but injured, the 
 measure ordinarily is the difference in the fair market value of 
 the thing in the condition in which it was before it was hurt and 
 after the injury with reasonable compensation for extra care and 
 expense made necessary by the hurt. 
 
 If the injury is to the body, wages for the time absolutely lost 
 and compensation for the diminished wage earning capacity in 
 the future, if any, and for physical pain, mental suffering, and 
 the expense reasonably incident to the injury, such as medical ex- 
 penses, etc., are allowed. The weight of authority is against al- 
 lowing damages for hurt to the mind occasioned by negligence un- 
 less it is accompanied by, or results from, or produces physical 
 hurt. 
 
 In some instances, in which the negligent conduct has resulted 
 in establishing injurious conditions continuing in their nature, 
 the law will either allow compensation for the future hurt or issue 
 an injunction requiring a change of the conditions. This is fre- 
 quently illustrated by negligent construction of railroad tracks 
 and embankments. In cases of this sort, the court not infre- 
 quently awards damage for the injury already sustained and re- 
 quires a change in the roadbed so as to obviate future injury. 
 
 NUISANCE. 
 Definition. 
 
 A number of definitions from different authors will be given. 
 Blackstone: "Anything that worketh hurt, inconvenience, and 
 damage. Anything done to the hurt or annoyance of the lands,
 
 SOME NAMED TORTS. 555 
 
 tenements or hereditaments of another. • • • And, by con- 
 sequence, it follows that if any one does any act, in itself lawful, 
 which being done in that place necessarily tends to the damage of 
 another 's property, it is a nuisance, for it is incumbent on him to 
 find some other place to do that act, where it will be less offensive. 
 To constitute a nuisance, it is not necessary that the annoyance 
 should be of a character to endanger health; it is sufficient if it 
 occasions that which is offensive to the senses, and which renders 
 the enjoyment of life and property uncomfortable. Even that 
 which does but cause a well-founded apprehension of danger may 
 be a nuisance." 
 
 Cooley : "An actionable nuisance may be defined to be anything 
 wrongfully done, or permitted, which injures or annoys another 
 in the enjoyment of his legal rights." 
 
 Bishop : " A nuisance of the sort which is to be redressed at the 
 suit of the injured party is anything done on one's premises, or 
 elsewhere, or put into circulation, or omitted to be done, contrary 
 to legal duty, wherefrom, through the separate action of nature, 
 or the common course, an injury follows to or directly menaces 
 another. Or it is any public nuisance which has wrought a spe 
 cial wrong to the individual." 
 
 Jaggard : "Nuisance is a distinct legal wrong consisting of any- 
 thing wrongfully done, or permitted, which interferes with or 
 wrongfully annoys another in the enjoyment of his legal rights/' 
 
 Pollock: "Nuisance is the wrong done to a man by unlawfully 
 disturbing him in the enjoyment of his property, or, in some cases, 
 in exercise of common right. The wrong is, in some respects, 
 analogous to trespass, and the two may coincide, some kinds of 
 nuisances being also continuing trespass. The scope of nuisance, 
 however, is wider. The conception of a private nuisance was 
 formerly limited to injuries clone to a man's freehold by a neigh- 
 bor's act; stopping or narrowing rights of way and flooding lands 
 by the diversion of watercourses seem to have been the chief spe- 
 cies. In the modern authorities, it includes all injuries to an 
 owner or occupier in the enjoyment of the property of which he 
 is in possession, without regard to the quality of his tenure." 
 
 Addison: "In legal parlance, a nuisance may be said to he any 
 obstruction to or injury of the legal rights of another resulting 
 from the wrongful or unlawful enjoyment by one of his own prop-
 
 556 AMERICAN ELEMENTARY LAW. 
 
 erty, real or personal, or from his own unlawful or indecent per- 
 sonal conduct. Such injuries always arise as a consequence of an 
 act done outside the property injured, and never from a direct 
 forcible act ; injuries arising from a direct forcible act of a person 
 amount to trespass, and can only be compensated for by an action 
 of trespass ; but when a man does that upon his own premises, or 
 upon public property, that results in injury to another as a direct 
 and immediate consequence of such act by the invasion of some 
 legal right of another, the act constitutes a nuisance, and is com- 
 pensable only in an action on the case. Thus, if a man erects a 
 dam across a stream that flows through his land, and thereby 
 raises the water of the stream so as to flow the land of those 
 above him on the stream, this is an invasion of the legal rights of 
 such supra-riparian owner as constitutes a nuisance, or so as to 
 cut off its natural drainage. * • * So, if a person turns the 
 surface water of a stream from his premises so that it escapes over 
 the lands of another in a different manner from which it would 
 naturally go ; or, if he carries on a noxious trade on his premises 
 whereby the air that floats over another's land is corrupted so sen- 
 sibly as to impair its comfortable enjoyment. Thus, it will be 
 seen that the term nuisance covers only that kind of injuries that 
 result from a use of one's premises that thus invade the legal 
 rights of another not as a direct act, but as the result of an act." 
 
 Wood: "Nuisances arise, as has been before stated, from a mis- 
 use of property, real or personal, or from a person 's own improper 
 conduct. 
 
 " But the idea of nuisance is generally associated with, and more 
 commonly arises from, the wrongful use of real property. It is 
 only in special and infrequent instances that it arises otherwise, 
 which will be referred to and fully explained later. They are 
 always injuries that result as a consequence of an act done outside 
 of the property injured, and are the indirect and remote effects 
 of an act, rather than a direct and immediate consequence. It is 
 a species of invasion of a person 's premises by agencies operating 
 entirely outside of the property itself, and imperceptible and in- 
 visible, except in the results produced, which are often themselves 
 invisible, and whose presence at times is perceivable by one of the 
 senses, and that usually not by the sight. A trespass is a direct 
 and visible invasion of one's property, producing direct and im-
 
 SOME NAMED TORTS. 557 
 
 mediate results, and consisting, usually, of a single act; but in- 
 juries of the class mentioned are indirect, and the consequences of 
 a wrongful act, and continuous, and the fact of their continuous- 
 ness is one of the many reasons that make them a nuisance." 
 
 From these and other authorities the following definition is 
 suggested : 
 
 An act, or omission, not in itself or its result a forcible invasion 
 of another's rights, either of person or property, but which brings 
 about a condition of things which, by the operation of natural 
 laws and forces, proximately occasions a violation, actual or immi- 
 nent, of another's legal rights in the use and enjoyment of his per- 
 son or property. 
 
 Analyzing this we find following elements : 
 
 (1) Act or omission. Affirmative, doing; passive, omitting. 
 
 (2) Is not a trespass or direct invasion, no application of 
 physical force, as that term is commonly understood. 
 
 (3) Establishes conditions, which under operation of natural 
 laws, work an injury to another, or seriously threaten to do so in 
 the enjoyment of his personal property. 
 
 (4) The injury may be either to the person, affecting health, 
 or comfort, as bad odors or noises; or to the morals, as a disor- 
 derly house ; or to property, by rendering it unfit for use, and thus 
 lessening its enjoyment and value. It may be either existing or 
 imminent. 
 
 Nature of the Injury. 
 
 As the act usually is not one involving a direct application of 
 physical force, the disturbance is usually in the use and enjoy- 
 ment, and not of the possession. Whether any particular act, or 
 omission, having this result is a nuisance is dependent on the law's 
 recognition of the complainant's rights. 
 
 Names are a secondary matter ; it is substance which should be 
 regarded. There are some instances of overlapping in the use of 
 legal terms, here as in many other cases; this is comparatively 
 unimportant. 
 
 In technical strictness, one has no right to interfere, in any way 
 or to any extent, with the person or property of another; but, as 
 this rule would practically cut off all social intercourse and throw 
 every one back upon himself for all he had and for the supplying 
 of all his wants, it would destroy the conditions which the law is
 
 558 AMERICAN ELEMENTARY LAW. 
 
 made to regulate. It is never enforced to its fullness, nor carried 
 to its logical results. The result is a number of adjustments, 
 more or less systematic in their nature, yet far from entirely scien- 
 tific or uniform. These are, in the main, the result of the efforts 
 to do practical justice in individual cases varying widely in their 
 facts and environment, and decided by judges widely separated 
 from each other in time and locality, and differing in education, 
 judgment, and sympathy, and the wonder is that the confusion is 
 not greater even than it is. 
 
 "We have seen that even in the forcible entry and destruction of 
 one's property the law gives license, if the emergency demands it. 
 One person may enter upon the land of another to obtain a van- 
 tage point from which to fight a fire on the premises of a third 
 party, and he thereby incurs no liability. He may even tear 
 down and destroy the property of another, if necessary to prevent 
 the spread of a fire. So one could kill a horse or dog of another 
 affected with hydrophobia and incur no liability. 
 
 This right of doing that which damages another to protect the 
 public interests, or, in some instances, greater injury to private 
 parties, is not confined to any one person. It exists in every one, 
 and constitutes one of the limitations which the law recognizes 
 upon the generally protected right of exclusive ownership and do- 
 minion. 
 
 Again, as to the person, the law licenses such invasion of the 
 technical right of immunity from interference as is involved in 
 the ordinary contacts of social life. 
 
 These same principles are recognized and applied, with more or 
 less consistency and uniformity, in regard to those rights which 
 are usually affected by nuisances. 
 
 Take, for instance, the right of quiet and repose. In strict- 
 ness, it might be said that no one should be permitted to invade 
 his neighbor's premises with any sound whatever; that the mak- 
 ing of any noise on the premises of another, or so near thereto 
 that the sound would reach to it. so as to be audible to the human 
 ear, would be a disturbance of his ether, or whatever the medium 
 through which sound is transmitted. Technically, this is true, yet 
 it is a scientific, physical, and practical impossibility for one to 
 live at all under such limitations. Some adjustment must be 
 made, and the practical question is: "Where shall the line be
 
 SOME NAMED TORTS. 559 
 
 drawn? As the use of one's own property in any way neces- 
 sarily involves some disturbance of the rights of others in their 
 property, how far shall the active disturbance be allowed to go 
 before it becomes a legal invasion ? 
 
 No answer of universal application has yet been given. The 
 most usual expression is found in the old maxim that each shall 
 so use his own as not to injure another. This, to a large degree, 
 shifts the inquiry to what is meant by injure; and this, in turn, 
 is made to depend on the facts of each particular case, judged in 
 the light of analogous cases. Notwithstanding this general uncer- 
 tainty, there are some doctrines fairly well settled as to particular 
 wrongs of this nature. 
 
 We will consider some of these, and attempt to discover these 
 rules in the particular instances, and then, if practicable, to de- 
 duce from them the principles common to them all, if there be any 
 such. 
 
 Natural Conditions Not Nuisances. — The first of these is that 
 the injurious condition, to be a nuisance, must result from the act 
 of man ; that is, a condition which is purely natural is not an ac- 
 tionable nuisance. Thus, if one owns a swamp which is, in its 
 natural state, unhealthy and injurious to the adjacent property, 
 he is not legally liable, even though he could drain it and relieve 
 the situation at small expense; unless he or his predecessors in 
 estate have done some act to increase or augment the naturally 
 bad state of affairs, he is not liable. If, however, the owner has 
 done anything to aggravate the natural conditions, then he is re- 
 sponsible for the whole of any damage afterward occurring. 
 
 Must Interfere With Ordinary Person. — Another rule is that 
 the annoyance or inconvenience must be of such a nature as to 
 affect the average or ordinary person ; an odor or noise may be a 
 real annoyance to a person of extremely sensitive nature, which 
 an ordinary person would look upon as one of the ordinary inci- 
 dents of life. This is not true when health is involved, but only 
 in those cases in which the act or omission is one of annoyance or 
 inconvenience simply. This is a combination of the two legal 
 rules, that the law's standard of measure is the average man, and 
 that the law does not take cognizance of little things. 
 
 Injury Must Be Direct Result of Wrong. — Another of these 
 rules is that the annoyance or injury must be the direct and proxi-
 
 560 AMERICAN ELEMENTARY LAW. 
 
 mate result of the acts or omissions complained of. Sometimes 
 there is some difficulty in applying this doctrine. As the act com- 
 plained of' is not in itself an invasion of another's right of person 
 or property, it is sometimes perplexing to see how we can call the 
 annoyance a direct result. An examination of the definition will 
 be helpful here. A nuisance is an act, or omission, which, though 
 not directly an invasion of another's rights, brings about such a 
 condition of affairs as, by operation of natural forces, works an 
 injury. Every one is supposed to regard the laws of nature 
 in making his calculations as to probable results of his conduct, 
 and as nuisances result from his conduct operated upon by nat- 
 ural laws, they are, legally speaking, the direct and proximate 
 effect thereof. So these cases are no exception to the general 
 rules as to remote and "proximate cause. 
 Nuisances in Water, Light and Air. 
 
 As nuisances are usually committed off the premises affected 
 by them, they most frequently affect one 's rights in water, light, 
 and air. These are by no means the only methods, but they are 
 the most frequent. We have considered water rights, and so pass 
 them by. No one has any ownership in natural air or light. 
 They are the free gift of nature to all men, and all the right which 
 one has in them is to use them. But this right is invaded when- 
 ever the air is so polluted with disagreeable odors or smoke as to 
 make it unhealthy or to render its use really annoying to the man 
 of ordinary sensibilities; and so, also, with light. The air may 
 be so beclouded with smoke or cinders that it will obstruct the 
 passage of light. If this is so, it will be a nuisance. The differ- 
 ence between raising an obstruction on one's land, so as to pre- 
 vent the passage of light and air over it to the premises of another. 
 and polluting the air on one's premises and then permitting it to 
 pass off in this injured conditions to the land of another, is to be 
 kept in mind. The former, ordinarily, is not a nuisance. The 
 latter always is, if the pollution be sufficient to produce ill health, 
 or material annoyance. The doctrine of ancient lights does not 
 obtain in most of the States ; and one, by maintaining a window 
 near the boundary line of another's land, does not acquire a pre- 
 scriptive right to continue it. The reason given in the case, and 
 it certainly seems conclusive, is that, as the maintenance of win-
 
 SOME NAMED TORTS. 56] 
 
 dows is not a violation of the rights of the adjacent owner, and 
 he can not, therefore, bring any suit for closing them or to pre- 
 vent their continuance, no failure to do that which he was not 
 legally capacitated to do could justly be regarded as acquiescence 
 on his part. 
 
 Rights of T Ja.y. 
 
 Eights of way which one person has over the lands of another 
 are not rights of possession. "While the person having the ease- 
 ment may pass along the way in the manner and for the purposes 
 covered by the right, he has no legal right to stop and occupy it or 
 to interfere in any way with the owner's use of it, so long as such 
 use does not obstruct his lawful passage. Obstructions to such 
 ways are, therefore, usually classified as nuisances. They usually 
 lack the element of direct physical force which is essential to tres- 
 pass. 
 
 Ways may be created by many different methods. 
 
 Public ways are, with us, usually acquired by voluntary grant 
 by the owner of the estate, or by the exercise of the power of emi- 
 nent domain. 
 
 Private ways are acquired by grant; actual, as in case of ex- 
 press agreement; or presumed, as in case of prescription; or by 
 necessity, as where a person, owning a large tract of land, sells to 
 another a smaller tract from its interior. Here, in the absence 
 of any agreement, the law entitles the purchaser to a passway to 
 and from his land over that of his vendor. Primarily, the vendor 
 has the right to lay out or designate the way, but he must do this 
 in a reasonable manner and in a reasonable time. If he does not 
 do so, then the vendee can select a suitable way. This he must 
 do with due regard to the rights and convenience of the vendor. 
 It has been questioned whether the vendor who owns a large tract 
 and sells all of it but a small portion, which is surrounded by the 
 portion sold, has this same right, but I believe it is now settled 
 that he has. It is immaterial how the way be acquired ; if it be 
 once lawfully established, it must be respected by all persons, and 
 any obstruction or interference with it is an actionable nuisance. 
 In these cases the remedy is for damages for past injuries, and 
 usually injunction against further maintenance of the nuisance. 
 36
 
 562 AMERICAN ELEMENTARY LAW. 
 
 TORTS VIOLATIVE OP BODILY RIGHTS. 
 
 As we found in our study of these rights, much attention is 
 given to the protection of the body. As then stated, the general 
 rule of law is that the application of force by one person to the 
 body of another is unlawful ; but there are five exceptions to this 
 rule: (1) "When done in obedience to the law; (2) when some spe- 
 cial relation exists between parties justifying the act; (3) when 
 by consent or license; (4) when it is an inevitable accident; 
 (5) when in necessary and proper defense of the person or prop- 
 erty. If, therefore, force is applied to the body of another and 
 does not come under one or the other of these exceptions, it is 
 unlawful and tortious, and for injuries resulting action may be 
 maintained. A great many of the injuries inflicted upon the 
 body are caused by negligence, and some of them by nuisance; 
 these need be no further considered. Some other forms of injury 
 are so frequent that they have been classified and named. Some 
 of these we will now take up. 
 
 Assault and Battery. 
 
 The essential elements of the tort are the same as those of the 
 crime of the same name. A battery is the use of any unlawful 
 violence upon the person of another with the intent to injure him. 
 Any attempt to commit a battery, coupled with the present ability 
 to do so, is an assault. The intent to injure distinguishes this 
 from negligence, and the element of force distinguishes it from a 
 nuisance. The word unlawful takes it out of the exceptions we 
 have just considered. It is immaterial how slight or how great 
 the force, if the intent be to injure, the act is wrongful, and the 
 injured party may maintain an action. As this tort is always 
 accompanied by an evil intent, both compensatory and exemplary 
 damages may be recovered. 
 
 False Imprisonment. 
 
 False imprisonment is also a tort affecting the body. It con- 
 sists in the unlawful detention of a person against his will by 
 force, threats, or fraud, thus preventing his regulating and con- 
 trolling his movements as he sees fit, subject to the just rights of 
 others. Most frequently, this tort is committed under the guise
 
 SOME NAMED TORTS. 563 
 
 of official authority. It frequently is occasioned by mistake in 
 the identity of the person whom an officer is commissioned to ar- 
 rest, so that the officer having authority to arrest A, by mistaking 
 B for A, arrests B. Here the officer has detained, and, it may be, 
 has actually imprisoned B, when his authority was to arrest A. 
 He had legal authority to do one thing, and does another. He is 
 responsible. 
 
 Malicious Prosecution. 
 
 Closely connected with wrongs of the last kind is another tort, 
 known as malicious prosecution. This is maliciously instituting 
 a prosecution or suit against another without probable cause, and 
 causing his arrest or the seizure of property belonging to him. 
 In false imprisonment, the prosecution may be properly begun 
 against a guilty party, but in the progress of the litigation some 
 one, not really the defendant, is arrested and imprisoned. In 
 malicious prosecution, the institution of the suit is wrongful, 
 prompted by malice and begun without probable cause. The ma- 
 chinery of the law is wrongfully put in operation against one who 
 is innocent, and whose innocence is known to the instigator of the 
 suit. In the case of false imprisonment, the person who properly 
 began the proceeding against a guilty party is not responsible for 
 the subsequent mistake by the officer in misunderstanding the 
 writ and arresting an innocent person. The officer alone is re- 
 sponsible ; in malicious prosecution, the proceeding is begun in the 
 due form of law, and the process in the hands of the officer com- 
 mands the doing of the very thing he has done. The officer is 
 not responsible. The wrong lies further back, with him who ma- 
 liciously and without cause instituted the prosecution. He is 
 the tort-feasor. While the institution of the prosecution mali- 
 ciously, without probable cause, and the arrest of the party, are 
 the gist of this tort, yet, from considerations of public policy, the 
 law requires that, in order to complete the right of action for this 
 wrong, the prosecution must have ended and resulted in the ac- 
 quittal of the party claiming injury. This is based upon two 
 grounds : (1) because it is not desirable to have two suits pending 
 at the same time, involving the same issues; (2) because, if the 
 first suit should be decided against him, it would be conclusive 
 evidence that there was probable cause to believe him guilty.
 
 564 AMERICAN ELEMENTARY LAW. 
 
 Poisoning. 
 
 Poisoning is another method of inflicting injury to the body. 
 If this be done intentionally or negligently, and results in injury, 
 it is a tort. 
 
 DEFAMATION. 
 Definition. 
 
 Defamation is the publication of a false statement reasonably 
 calculated to injure concerning another without legal excuse. 
 Publication. 
 
 Publication is conveying an idea to some one or more third par- 
 ties. So long as the idea is communicated only to the person 
 defamed it is not a tort, for he is not supposed to be deceived or 
 misled by the statement. But conveying the idea to any other 
 individual is publication. This word has a different meaning 
 here from what it does when we speak of the publication of a 
 newspaper or book. There it signifies getting it into proper form 
 and offering it to the public. Here communication to any third 
 party is sufficient. 
 
 It also has a different meaning from that given to the word in 
 criminal law, which includes communications not only to third 
 persons but also to the party defamed. 
 
 Publication may be accomplished in many ways. Any method 
 is sufficient which actually communicates the defamatory idea to 
 a third person. When permanent means, such as printing, writ- 
 ing, painting, etc., are adopted, the publication is usually desig- 
 nated as a libel. When transitory means, such as speech, etc., 
 are used, the publication is called slander. 
 
 Nature of the Idea Conveyed. 
 
 As publication is usually made by written or spoken words, we 
 most frequently find it referred to as a statement. To make a 
 statement tortious it must have two elements: It must be rea- 
 sonably calculated to injure, or must be designed to and actually 
 accomplish that result, and it must be false. Considering these 
 two more in detail, we find: That usually the words used are 
 to be taken in their ordinary meaning, and, if when so taken, they 
 reasonably tend to bring one into disrepute, they are deemed de- 
 famatory. If the words, used in their ordinary and accustomed 
 meaning, are not defamatory, they are not actionable, unless the 
 party using them designed that they should be understood in a
 
 SOME NAMED TORTS. 565 
 
 special sense which was defamatory, and they were in fact so un- 
 derstood by some other party. In this case, the result is design- 
 edly and actually to communicate a defamatory statement, and 
 that is all that is required. If, however, the person using the 
 words intended them in their ordinary and harmless meaning, and 
 the person to whom they were addressed, or some one else who 
 heard them, put upon them a peculiar and unusual interpretation 
 and thus made them defamatory, this would not be laid to the 
 charge of the innocent user. We find illustrations of this in 
 cipher dispatches. They convey no idea to the one not having the 
 key, and hence can not be said to communicate or publish any- 
 thing ; but to the person having the key they are intelligible and 
 convey information. Now, if the cipher used, as designed to be 
 interpreted by the key, conveys a defamatory idea to the person 
 correctly interpreting it, to him it would be a defamatory pub- 
 lication; but suppose a person sends a message using words in 
 their ordinary meaning, but the person receiving it shall imagine 
 that it is a cipher and interprets it and gets a wrong idea, the 
 original sender would not be responsible for this false and unde- 
 signed interpretation. 
 
 Falsity of Statement. 
 
 The statement must be false. . The right of the individual be- 
 ing to have reputation exactly corresponding with and conform- 
 ing to his character, it necessarily follows that a true statement, 
 however much it may, in fact, injure one 's reputation, could only 
 do so by depriving him of so much of his reputation as was be- 
 yond his real character, and thus could not be actionable, because 
 it involves no violation of right, on the one hand, nor breach of 
 duty, on the other. It is, therefore, a settled rule of law that, no 
 matter how damaging a statement may be, or how evil the motive 
 of the party making it, it can not be a tort unless it be false. 
 
 There is an old Common Law saying that "the greater the 
 truth, the greater the libel." This applies only in criminal Law, 
 and has no place in Torts. Even in our Criminal Law this is not 
 universally recognized ; in prosecutions for slander, in some States 
 truth is a defense. 
 
 It must be remembered, however, that every one is presumed to 
 be of good character until the contrary is proved ; so, in the trial
 
 566 AMERICAN ELEMENTARY LAW. 
 
 of cases of this sort, the plaintiff is required to plead the falsity 
 of the charges, but is not required to prove the plea. The defend- 
 ant is required to show the truth, which he can do only under 
 appropriate pleadings to that effect. 
 
 Mast Concern Another. 
 
 The statement must be concerning some other person : It may 
 involve the speaker, in connection with others, but if it involve 
 only him it can not be a tort, for one can not commit a tort against 
 himself. 
 
 "Without Legal Excuse. 
 
 It must be made without legal excuse: The old definitions all 
 use the term malicious, but this is not an accurate expression of 
 the law at this time, if it ever were. It is not at all necessary that 
 the statement shall be prompted by any ill-will, or desire or ex- 
 pectation of injury. If it be defamatory and false, and the cir- 
 cumstances afford no legal excuse for the publication, it is action- 
 able, without reference to the motive or purpose of the party. 
 The excuses which may be set up differ. They are usually classed 
 as absolute and conditional privileges, and we will consider them 
 in that way. 
 Libel and Slander. 
 
 Going back to the terms libel and slander, it is well to keep the 
 difference between them clearly in mind, because most, if not all, 
 books treat them separately; because some of the rules of law 
 applicable to them respectively are different; because somewhat 
 different rules of pleading govern them. 
 
 Absolute Privileges or Excuses. 
 
 These privileges grow out of the circumstances under which the 
 statements are made, and constitute an absolute bar to liability 
 for the wrong, however grevious the damage or wicked the motive 
 of the person making the statement, These absolute privileges are 
 confined to persons exercising the functions of a public office or of 
 a position of a quasi-public nature. They exist in behalf of all 
 legislative and judicial officers as to statements made in the dis- 
 charge of, or in immediate connection with the discharge of, their 
 official duties. Members of Congress, or of the State legislature, 
 are absolutely privileged and free from pecuniary liability for ut- 
 terances upon the floor of their respective houses. It is better
 
 SOME NAMED TORTS. 567 
 
 that occasionally an individual should suffer from some wrongful 
 attack upon him than that there should be any embarrassment or 
 fear operating on the minds of the representatives of tbe people 
 in the discussion of public matters. So the judge, in the exercise 
 of the duties of his office, can not he held accountable for his offi- 
 cial utterances. So high executive officers, the President and his 
 Cabinet, the Governor and heads of State departments, are not lia- 
 ble for any statements made in official documents of any kind. In 
 some of the States, this absolute privilege extends also to attor- 
 neys, parties and witnesses in the trial of cases. This is not the 
 rule in the Federal courts, however, the privilege in these courts 
 extending only to statements which are relevant to some issue in 
 *the case. 
 Conditional Privileges. 
 
 These are not so far reaching as the class just considered, and 
 extend only to cases in which the party making the statement acts 
 in good faith, and without malice. 
 
 The privilege does not exist at all unless there be some special 
 relation of trust and confidence between the person making the 
 statement and the one to whom it is made. This relation must be 
 such as to create or give rise to a duty to disclose the matter stated, 
 if it were true ; whenever this duty arises, if the person owing it, 
 in good faith believes the statement to be true, and communicates 
 it in an honest endeavor to discharge this duty, he is not liable. 
 Absence of good faith, or the existence of malice, will either de- 
 stroy the privilege, or take the case outside of the privilege rule, 
 and make the person liable. 
 Damages. 
 
 With reference to the damage resulting, statements are divided 
 into those actionable per se, and those not so actionable. 
 
 Statements actionable per se are those of such a nature that the 
 law presumes damage to result, and gives a right of action for 
 the defamation, although no actual damage can be proved in the 
 particular case. 
 
 They are usually spoken of as being of four kinds: 
 
 1. Those charging one with the commission of a crime infamous 
 in its nature or punishment. 
 
 2. Tbose charging one with having a contagious or disgraceful 
 disease.
 
 568 AMERICAN ELEMENTARY LAW. 
 
 3. Those affecting one in his office. 
 
 4. Those affecting one in his business. 
 
 In these cases it is not necessary to prove any special damage in 
 order to recover, though usually the amount will be small, unless 
 there be some proof of damage. It is, therefore, always safer and 
 better practice to have proof of actual injury, if it can be gotten. 
 
 Statements not actionable per se. Many false statements are 
 defamatory and actually injurious which do not come under any 
 one of the four classes above enumerated. 
 
 In order to make out a case on such a statement, it is necessary 
 to plead and prove the facts constituting the damage. This must 
 be the direct and proximate result, as in all other cases, but when 
 these things can be proved they will show a tort, and entitle to 
 recovery to the extent of the damage. This class is, possibly, the 
 largest of all, and there are more cases brought under it than un- 
 der any other. 
 
 TORTS AFFECTING PROPERTY RIGHTS. 
 
 We must keep in mind the essential elements of ownership, 
 right to possession, use, enjoyment, modification, and disposition. 
 It is a tort unlawfully to deprive an owner of any one of these 
 rights in the thing owned, either wholly or partially;* and, of 
 course, to deprive him of all of them. The distinction between 
 personal and real property must also be regarded in determining 
 what conduct is tortious, and what elements of damage may be 
 recovered for any wrong. 
 
 We will first take up some of the torts which may be committed 
 with regard to either real or personal property. 
 
 Trespass. 
 
 Any forcible invasion of the rights of another, whether of per- 
 son or property, was, at Common Law, known as a trespass. We 
 rarely, if ever, use the term now as including wrongs to the per- 
 son, but limit it to forcible wrongs to property, real or personal. 
 In this connection, the word forcible is used in its common rather 
 than its scientific meaning or acceptation. It is - probably scien- 
 tific to say that most nuisances involve some element of force, but 
 the law does not look upon the invasion of air by odors or noises 
 as an application of force, and in its use of the term restricts it 
 to such force as is visible in its effects and operates through tan-
 
 SOME NAMED TOETS. 569 
 
 gible means. "We therefore say that a trespass is a forcible in- 
 vasion of another's rights, while a nuisance is an act, or omission, 
 not involving a use of force but which, in its direct consequences, 
 works injury to another. 
 
 Any unlawful entry upon the land of another is a trespass and 
 a tort. We considered this at some length in our previous work, 
 and need not go into it in detail again. 
 
 Many of these trespasses, considered in themselves, are very 
 slight disturbances of another, but still the law recognizes them 
 as wrongs, and will give a remedy of nominal damages. If this 
 were not so, the trespasser might, by frequent repetitions, finally 
 acquire a right by prescription or limitation. 
 
 The early Common Law remedies for trespasses upon land 
 were very complicated and expensive. Even in the Common Law 
 courts these have been superseded by the action of ejectment. 
 This is the remedy now given in many of the States. In other 
 States the action of ejectment has been superseded by statutory 
 proceedings. These differ in the different states.- If the trespass 
 is one that does not involve the title, but simply possession of the 
 land, the action of forcible entry and detainer frequently affords 
 sufficient remedy. 
 
 Forcible injuries to personal property are also called trespasses. 
 "Whenever one person, by force, injures personal property belong- 
 ing to another, it is prima facie a tort and the person committing 
 the injury will be held liable to the extent of the damage inflicted 
 unless he can show such facts as will legally justify him in so 
 doing. The remedies will depend on the nature of the injury. 
 If it results in total destruction of the property, then the liability 
 is for the full value of the property ; if the injury is only partial, 
 the liability is for the difference in the value of the thing in its 
 sound condition and the condition to which the injury reduces it, 
 with reasonable and proper expense incurred in caring for it and 
 also the reasonable value of its use while deprived of it, if the 
 injury be only temporary. 
 
 Fraud. 
 
 "We have already dealt at length with the subject of fraud and 
 have found that most frequently it is a wrong perpetrated by one 
 party to an agreement upon the other, though sometimes the 
 fr«.ud may affect one not a party to the agreement. As between
 
 570 AMERICAN ELEMENTARY LAW. 
 
 the parties to the agreement, fraud is either in inducement or in 
 esse contractus. Each of these has been defined heretofore. 
 
 We also found that fraud in inducement, considered in its 
 broadest sense, embraces both deceit at Common Law and misrep- 
 resentation in Equity. In those jurisdictions, where the differ- 
 ence between law and equity still remains in full force, this dis- 
 tinction is still recognized ; deceit being a tort entitling to damage, 
 equitable misrepresentation not entitling to damage but to rescis- 
 sion of the agreement or constituting a defense against an action 
 for specific performance. In other States, where the distinction 
 between law and equity is not recognized, both deceit and equi- 
 table misrepresentation are dealt with as torts entitling to the 
 legal remedy for damage and the equitable remedies of rescission 
 or non-liability for non-performance, according to the facts of the 
 case. 
 
 The legal essence of fraud is deception resulting in hurt to the 
 deceived. This deception must be as to a past or present fact, 
 not matter of opinion or future expectation simply. A false 
 statement as to present conditions made as a basis for credit or 
 to induce other action by the party deceived, or a false statement 
 as to present intent to keep a promise, is regarded as a present 
 fact. The fact must be material to the matter under considera- 
 tion, that is, must be of such a nature and so related to or con- 
 nected with the matter under consideration, as to be reasonably 
 calculated to induce the party to take action desired by the per- 
 son guilty of the fraud. The ordinary test is, was the matter 
 stated as a fact reasonably calculated to induce or influence action 
 by a reasonably prudent person ? If, in any given case, the per- 
 son claiming to have been influenced was so circumstanced that he 
 was more than ordinarily easy to influence, he must plead and 
 prove these special facts. The person defrauded must have be- 
 lieved this material fact to be true, when in reality it was false 
 and must have been influenced by this belief to give his assent to 
 the agreement, and the agreement must have resulted in his in- 
 jury. 
 
 All the foregoing elements are common both to Common Law 
 deceit and Equitable misrepresentation. The difference between 
 these relates to the manner in which the deception is occasioned 
 and the connection of the party charged with the fraud with the
 
 SOME NAMED TORTS. 571 
 
 deception. In deceit, the deception must be occasioned by repre- 
 sensations made by the party charged with the fraud, with intent 
 to deceive the person defrauded, and when he made such represen- 
 tations he must have known them to be false, or must have made 
 them recklessly without believing that they were true. These false 
 representations are of three general kinds : First, those which the 
 party know to be false ; second, those which are false in fact, and 
 which the party believes to be false, yet states to be true; and 
 third, those which are false in fact, which the party believes to be 
 true though he did not know it and yet states them to be true as of 
 his own knowledge. Unless the statement comes under one or 
 the other of these general classes it will not support an action for 
 damages for deceit aj; Common Law. 
 
 Equitable misrepresentation includes all the statements em- 
 braced in the Common Law conception of deceit and in addition, 
 misrepresentations made to the deceived person and honestly be- 
 lieved to be true by the party making them, provided the facts are 
 such as to entitle the party to whom the statement is made to rely 
 upon the one making it for information. Whenever this right of 
 reliance exists, equity requires the person undertaking to give in- 
 formation to speak truly or bear the consequences himself. If, 
 therefore, one makes a material statement as to a past or present 
 fact, and thus influences another to act and it subsequently de- 
 velops that this statement is false and that the action of the de- 
 ceived party has been injurious to him, equity will give relief to 
 the deceived person notwithstanding the party making the state- 
 ment in fact believed it to be true and had reasonable grounds for 
 so doing. 
 
 If a party, who is not bound to disclose, knows or has reason to 
 believe that the other party to the negotiation is ignorant concern- 
 ing. some material fact and under these conditions volunteers in- 
 formation as to this fact, he will be bound by and responsible for 
 any false statements be makes. While he is under no obligation 
 to speak, if he volunteers to speak, he must speak truly. 
 
 The foregoing differences between deceit and equitable misrep- 
 resentation seem to be clearly established, though there is a tend- 
 ency in some courts, even where Law and Equity are still dis- 
 tinct, to lose sight of them to some extent. In some of the States 
 in which the distinction between Law and Equity is not recog-
 
 572 AMERICAN ELEMENTAEY LAW. 
 
 nized, the distinctions above made between deceit and misrep- 
 resentation are no longer kept up. 
 
 "When we consider fraud by concealment the question is some- 
 what more difficult, though the tendency seems to be to regard any 
 artifice resorted to by one seeking to get advantage from a false 
 impression then existing in the mind of another, to throw the de- 
 ceived party off his guard or to prevent or hinder investigation 
 which would lead to a disclosure of the truth, is legally equiva- 
 lent to making a known false statement, and hence, will support a 
 Common Law action for deceit. There is no question that such 
 concealment entitles to relief in Equity as fully as known false 
 statements. 
 
 It is doubtful whether simple non-disclosure of the truth can 
 ever be regarded as Common Law deceit. In equity, if the facts 
 are such as call for disclosure, failure to disclose resulting in in- 
 jury is always actionable. 
 
 Remedy. — Only the party injured by the deception or those 
 holding under him can maintain an action for fraud. If the 
 party attempting to perpetrate the fraud is injured by it he is 
 without redress. 
 
 The remedy for Common Law deceit is an action for damages. 
 Not infrequently the matter actually arises as a defense in an ac- 
 tion brought to enforce a contract. If, at the time that the 
 contract was made, or at any time before the fraud was discov- 
 ered, or by the exercise of reasonable care should have been dis- 
 covered, the defrauded party performs his part of the agreement, 
 his only remedy at law would be to sue the defrauding party for 
 damages. In such case, the damage would be measured by the 
 difference in the market value of the thing as it was represented 
 to be and its market value as it in fact was. If the defrauded 
 party has not paid for the thing, when he discovers the fraud, 
 his remedy at law is to retain the thing and pay only its real mar- 
 ket value instead of the contract price. Remedies in Equity are 
 rescission of the contract and recovery back the amount that has 
 been paid, if any, and such other damage as directly results from 
 fraud ; or, the defrauded party may set up the deceit or misrep- 
 resentation as a defense against an action in Equity to enforce 
 the contract. As the equitable remedies may be had on facts 
 showing either deceit or misrepresentation and are more complete 
 and adequate than those which can be obtained at Law, by far
 
 SOME NAMED TORTS. 573 
 
 the larger part of modern litigation regarding fraud is carried on 
 in the Equity courts. 
 
 Fraud in esse contractus is a tort but it rarely is a basis of a 
 suit for affirmative relief. This kind of fraud can be perpetrated 
 only in connection with the execution and obtaining possession of 
 written instruments. Instruments obtained by this species of 
 fraud are universally recognized as void and the facts will consti- 
 tute a defense even against an innocent third person who has ac- 
 quired the paper. Hence the defrauded party does not often 
 find it necessary to institute suit for wrongs of this kind. He 
 usually awaits suit by the party holding the paper and interposes 
 the fraud as a defense. If the paper thus procured is of such 
 kind as to cast a cloud upon the title to property or otherwise in- 
 jure the defrauded party, he may sue in Equity and have the 
 nullity of the paper declared. 
 
 DYING TO SEAL PROPERTY. 
 
 The right to keep property intact or to modify or destroy it, as 
 one may please, is one of the incidents of ownership, and if a per- 
 son, not the owner, shall make any change in the property, or its 
 conditions, unless he has authority, express or implied, from the 
 owner, or acts under proper authority from the government, he 
 commits a tort. Injury to real property, when committed by one 
 who is unlawfully in possession, is regarded as an incident of or 
 part of the trespass involved in the wrongful taking and holding 
 possession, and the damage may be recovered in the action to re- 
 gain possession. 
 
 Waste. 
 
 When one is lawfully in possession of real property which be- 
 longs to another, and takes advantage of his possession to injure 
 the property, this is called waste. 
 
 Waste is of two kinds: (1) Positive injury done by the affirma- 
 tive wrong conduct of the person in possession; (2) permissive, 
 which consists in failure to repair and keep up the premises when 
 it is the duty of the one in possession to do so. The law forbids a 
 tenant under lease which is silent on the subject of repairs to do 
 any act which injures the property beyond ordinary wear and 
 tear, and if he does such acts, he is responsible ; on the other hand, 
 it does not require him to keep the premises in repair or to pro-
 
 574 AMERICAN ELEMENTARY LAW. 
 
 tect them from injury from natural causes ; so that it is customary 
 to say that a tenant is responsible to the landlord for injuries re- 
 sulting from his affirmative wrong-doing, but is not for permis- 
 sive waste not attributable to his fault. 
 
 When one person owns an estate in land entitling him to pos- 
 sess and use it for a time and some other person owns the re- 
 mainder or reversion, the one in possession must not do or suffer 
 anything to be done on the premises which will injure the estate 
 or value of the property to the remainderman or reversioner, fur- 
 ther than is involved in using the property during his holding in 
 the ways and for the purposes for which it was used when he came 
 into possession. Thus, if there is coal on land and one person has 
 a life estate in the land, if no mines were open on it when he ac- 
 quired his life estate he can not open any; or, if two mines only 
 were open, he can not open others, though he may continue to 
 work those which were open when his estate began. The same 
 rules hold generally as between all owners of present interests and 
 persons having subsequent estates in the property. 
 
 Injuries to Easements. 
 
 We have already considered nuisances. In most instances, in- 
 terference with one's use of an easement is a nuisance, and dealt 
 with as indicated in the treatment of that subject. Names, how- 
 ever, are largely immaterial and, if one has an easement and an- 
 other unlawfully interferes with it or obstructs the owner in its 
 enjoyment, an action will lie for the wrong. 
 
 Cloud Upon and Slander of Title. 
 
 As we have seen, one of the incidents of ownership is the right 
 to dispose of the thing. There are two torts which injuriously 
 affect this right; the first is casting cloud on one's title by setting 
 up an adverse claim to the property. This is usually done by 
 obtaining, in some manner, a deed or other writing pretending to 
 convey the title or a claim to the land to the person guilty of the 
 wrong, and placing it upon record, and thus inducing prospective 
 purchasers to doubt the genuineness of the title of the real owner. 
 The usual remedy here is to sue and obtain a judgment declaring 
 the true title to be the genuine and only one to the land, and de- 
 claring the other to be worthless. The second is very similar, and 
 consists in making and circulating false reports concerning one's
 
 SOME NAMED TORTS. 575 
 
 title to his property, for example, that the deed under which he 
 claims is a forgery, and thus destroying the reputation of his 
 title and diminishing its market value. The remedy here is to 
 sue for any damage which may have directly resulted from such 
 reports, and also to have the same adjudged slanderous and 
 false, so as to prevent future injury, and sometimes an injunction 
 to prevent repetition might be awarded. 
 
 TORTS TO PERSONAL PROPERTY. 
 General Discussion. 
 
 Ownership of personal property may be general or special. 
 The general ownership embraces the five elements of possession, 
 use, profit, modification, and disposition. Special ownership con- 
 sists in some one or more of these elements or all of them for a 
 limited time and purposes. 
 
 Any invasion of any one of these rights, whether of the general 
 or special owner, resulting in damage to him is a tort as to such 
 owner. If one person is the general and another the special 
 owner of the same thing, the same wrongful act or omission may 
 be a tort as against both. Thus, if A owns a. piece of personal 
 property and has hired it to B for a year and C shall wrongfully 
 destroy the property, this is a tort as against B in so far as it de- 
 prives him of the present possession, use, and profit of the thing, 
 and is also a tort as against A, because it deprives him of the 
 thing which would have come back to him in full ownership upon 
 the expiration of the term of hiring. 
 
 It is manifestly impracticable to enumerate all of the various 
 torts which may be committed regarding personal property. 
 The great majority of them, however, fall into one of two 
 general classes; first, wrongs which consist in the injury or de- 
 struction of the thing owned, and second, wrongs which do not 
 injure the thing itself but which consist in taking it into posses- 
 sion and using or profiting by it or in some way exercising domin- 
 ion over it. 
 
 The Common Law recognized these various kinds of wrongs 
 and provided several forms of action with regard thereto. The 
 principal of these Common Law actions were replevin, trespass, 
 and detinue. Each of these was fairly technical and Parliament 
 later introduced the statutory action known as trover, or trover 
 and conversion.
 
 576 AMERICAN ELEMENTARY LAW. 
 
 The action of trespass can be maintained at Common Law only 
 in cases where the defendant came into the possession of the prop- 
 erty by unlawful act. If his possession was originally lawful, 
 trespass could not be maintained against him no matter how un- 
 lawful his subsequent conduct. 
 
 Replevin at Common Law could only be used to recover pos- 
 session of a specific thing. If the thing could not be had, no al- 
 ternate judgment for its value or other damage could b6 given. 
 
 Detinue could be maintained either for the recovery of the 
 thing or for damage for its unlawful detention. 
 
 Trover is a statutory action on the case for damages for the 
 wrongful exercise of dominion over property, or conversion of 
 it, as it is technically called. The judgment sought is not for 
 the return of the property but for damages for its conversion. 
 
 These various forms of action have been entirely superseded in 
 many jurisdictions. Even in those states in which the names are 
 retained, they have been greatly modified by various statutes, de- 
 cisions, and rules of practice. It would not be profitable to at- 
 tempt to trace these. It is sufficient to say that by proper pro- 
 ceeding a fairly appropriate remedy may be had in each of the 
 States for any wrong to personal property unlawfully committed. 
 These remedies consist in one or the other or a combination of 
 the following: 
 
 (1) The recovery of the specific thing and compensation for its 
 use during the time of its detention, and, if, in any case, injury- 
 has been done to the thing, damages to cover such injury. 
 
 (2) The value of the thing, plus interest, or damage in the 
 nature of interest, on this value, from the date of the conversion 
 to the date of the judgment. 
 
 In most of the States the Common Law has been so modified as 
 to permit the plaintiff to combine these two in one action and 
 recover a judgment in the alternative ; that is. that the property 
 be restored, if that can be done, and if not, that the damages be 
 paicl. It is, of course, optional with the plaintiff which remedy 
 he shall pursue. 
 
 Interference Under Process with Personal Property. 
 
 One of the most common instances of the violation of right in 
 personal property is unlawful interference with it by officers, un- 
 der supposed authority of some legal process.
 
 SOME KAMJiD TGRTB. 577 
 
 "Vv I'ilfc. ali property owned by any one, except such as is speci- 
 ally exempted by law, is subject to lawful seizure, under legal 
 process directed against it, a person is protected from any inva- 
 sion of his title or possession under mere semblance of legal au- 
 thority. It therefore becomes important to fix clearly in mind 
 the rules by which to distinguish between lawful and unlawful 
 seizure. 
 
 The authorities say that, to justify the seizure, the process 
 must be fair on its face; must run against the party whose in- 
 terest or title in the property is sought to be seized, and must au- 
 thorize the seizure of the very property taken in the manner 
 m<jde. 
 
 Process is fair on its face when it has the following character- 
 istics : ( 1 ) It must issue from a court, and by an officer having 
 jurisdiction to issue it. (2) It must be in the form prescribed 
 by law, at least so far as such form is mandatory. (3) It must 
 be directed to the officer who executes it. (4) It must be against 
 the party whose property is seized. (5) It must authorize the 
 seizure of the property taken and the exact disposition made 
 thereof by the officer. Unless the property is specifically de- 
 scribed in the writ, it must be subject to seizure under proce?s of 
 the kind under which the officer acts. 
 
 A failure in any of these respects will make the officer liable 
 in actual damages. 
 
 There are exceptional cases, in which, even though all these 
 conditions have been complied with, the officer will still be lia 
 ble, as Where the officer has acquired some interest ir> the writ, or 
 tk proceeds of the sale, beyond his costs. 
 
 Torts Against Incorporeal Chattel Interests. 
 
 Rights under patents, copyrights, and trade marks have been 
 considered under Property. Any infringement of one of these 
 rights, resulting in any injury, is a tort. The Federal courts 
 have exclusive jurisdiction over suits for infringement of patent 
 rights and copyrights. The State and Federal courts have juris- 
 diction over trade mark cases, according to the other facts and 
 circumstances. 
 
 A patent right is violated by duplicating the thing, or any ap- 
 preciable part of the thing patented, and placing it upon the mar- 
 ket. A copyright of a wor> o£ r jct is violated by making a copy 
 37
 
 578 AMERICAN ELEMENTABY LAW. 
 
 of it, or such a substantial part of it as to be an appreciable ap- 
 propriation of the thing copyrighted. 
 
 The manner in which trade-marks may be violated is set oat at 
 length in treating this subject under Property. 
 
 TORTS AGAINST RIGHTS WHICH ONE PERSON HAS IN ANOTHER. 
 
 Generally. 
 
 If one person shall unlawfully seize and detain, or carry 
 away, the child or wife of another, in addition to the remedy 
 by habeas corpus to have the person released from custody, 
 and to the action for damages which the person detained would 
 have for the assault and false imprisonment, the father or hus- 
 band, as the ease may be, has an action for the loss sustained by 
 him in the invasion of his right in his child or wife, and can re- 
 cover the damage sustained by him by reason of the wrong, and, 
 in most instances, exemplary damages also. This tort would be 
 called abduction or kidnapping. 
 
 Seduction of a daughter is also a tort of a similar nature. 
 Alienating the affections of a wife is a tort against the husband 
 At Common Law, there was nothing allowed the wife for alienat- 
 ing the affections of her husband; but the later cases seem to 
 recognize something approaching equality of the spouses in this 
 regard, and to enable the wife to sustain such an action. Unlaw- 
 fully inflicting injury upon a minor child, or a wife, is also a tort 
 against the father, or the husband, for which he may recover. 
 The same is true of enticing away or injuring a servant. The 
 master is entitled to just compensation for the injury sustained, 
 in either case. 
 
 Great diversity of opinion has obtained as to whether it is ac- 
 tionable to induce one to break a contract which he has already 
 entered into. It has, for some time, been held that, if the con- 
 tract is one for service, it is actionable to induce the servant to 
 break it ; also if the person bringing about the breach is actuated 
 by malice or directly profits by the breach, this renders him liable, 
 without reference to whether the contract were one for service or 
 not. Some of the later cases have gone further than either of 
 these holdings, and announce the doctrine that, as to third par- 
 ties, a contract creates a right analogous to a property right in 
 the performance of the undertaking ; and hence, any one iBfiflfc
 
 SOME NAMED TOBTS. 579 
 
 ing another to break a valid contract is interfering with a sub- 
 stantial, legal right, and must respond for any directly resulting 
 damage. This seems rational and just. 
 
 Injuries Resulting in Death. • 
 
 Probably the most obvious example of rights of the kind now 
 under consideration, and of responsibility for their violation, is 
 found in the constitutional and statutory provisions for making 
 one person compensate another for the injury occasioned by the 
 wrongful killing of a third. This subject is usually treated un- 
 der the head of injuries resulting in death. 
 
 At Common Law, homicide under many circumstances, was a 
 most heinous crime, but was never a tort. The injured party was 
 beyond any legal redress, and others were not regarded as having 
 such an interest or claim in his services or to them as would con- 
 stitute a legal right. It follows that all torts of this kind depend 
 on Written Law, constitutional or statutory, and no act, or omis- 
 sion, not covered by such law can constitute such a tort nor do the 
 rights conferred by such statutes exist in favor of one not named 
 in the law as a beneficiary, nor against one not named therein as 
 liable. In other words, the right to recover damage for the death 
 of another is not a Common Law right, but a statutory one and 
 can exist only according to the statute creating it. The first stat- 
 ute of this kind existing in any Common Law country was the act 
 of the English Parliament, passed in 1846, and commonly known 
 as the Lord Campbell's Act. Since that time, almost every 
 American State has passed similar statutes, the English statute 
 being, in the main, the model by which these were drafted. So 
 we find a very great similarity in the statutes on this subject. 
 
 There are four things to be considered, primarily, in seeking 
 the effect of constitutional and statutory provisions of this kind. 
 viz.: 
 
 1. To whom the right is given. 
 
 2. Against whom it is given. 
 
 3. "What acts or omissions subject one to liability. 
 
 4. What elements of damage may be recovered therefor. 
 Other matters, such as procedure in the case, are important, 
 
 but the four things enumerated are indispensable. 
 
 Detailed consideration and accurate answer to any one of the 
 questions or suggestions above is impossible, as each Legislature
 
 580 AMERICAN ELEMENTARY LAW. 
 
 determines each of these matters for itself and while there is 
 similarity as to the general nature and purpose of the statutes, 
 there is decided variety as to detail. 
 
 The beneficiaries are, in all instances, persons closely related to 
 the deceased, consisting usually of the surviving husband or wife 
 and children ; not infrequently parents are included. 
 
 There is less uniformity as to the persons against whom the 
 right of action is given. Some of the States give a remedy 
 against any person whose conduct occasions the death of another 
 under the circumstances indicated in the statute. Some give 
 remedy against any person who is himself guilty of the unlawful 
 conduct when the homicide occurs in a specified way, and then 
 have other provisions fixing liability upon designated principals 
 and masters when death occurs as a result of specified wrongs by 
 their agents or servants. There is a tendency in the statutes to 
 limit this secondary range of liability to businesses, such as com- 
 mon carriers, etc., in which the dangers are great and the neces- 
 sity for unusual care in the selection of employees is apparent. 
 
 The statutes vary materially as to the conduct leading to lia- 
 bility. Where the liability is limited to or based on the conduct 
 of the defendant himself, it usually embraces all unlawful acts or 
 omissions resulting in death. Where the liability is extended to 
 the secondary range it is usually limited to negligent acts or 
 omissions as distinguished from intentional and willful homicides. 
 
 The damages recoverable differ somewhat in the different 
 States. They are, however, limited everywhere to damages sus- 
 tained by the surviving relatives and do not include the elements 
 of damage which could have been recovered by the deceased in 
 his own behalf had he survived the injury. The damage is usu- 
 ally, in express terms, limited to pecuniary loss. Mental suffer- 
 ing on account of the death of the deceased is not ordinarily al- 
 lowed. In a number of the States there is a maximum limit fixed 
 by the statute beyond which the court or jury cannot go in allow- 
 ing damages. In the other States the amount is left to the sound 
 discretion of the jury subject to correction by the judge. 
 
 As these actions have no support at Common Law, to entitle 
 any one to recover he must bring himself within the provision 
 of the constitution or statute upon which his suit is based. These 
 provisions receive fair and reasonable construction but their ef-
 
 SOME NAMED TORTS. 581 
 
 feet cannot be extended beyond the terms of the statute by anal- 
 ogy or because some case arises which, though meritorious, is not 
 within the fair interpretation of the words of the act. The pro- 
 cedure in these cases is usually regulated by the statute giving 
 the right and no general discussion of that subject would be prof- 
 itable.
 
 CHAPTER IV. 
 
 \ 
 
 OUTLINE OP THE LAW OP CONTRACTS.* 
 Definition. 
 
 The fundamental notion of a contract is an agreement resulting 
 in obligation. 
 
 The term agreement, in this connection, means, primarily, the 
 meeting of the minds of two or more persons as to some definite 
 thing to be done or forborne. There must be the same thing in 
 this minds of both parties, and their common intention with refer- 
 ence thereto must be communicated between them. Further, in 
 order that the agreement may be such as can result in contract, 
 this intention of the parties must contemplate the assumption of 
 legal rights and duties by the parties to it — a change in their ex- 
 isting legal relations. Agreement may be defined as "the ex- 
 pression of two or more persons of a common intention to affect 
 their legal relations." (Anson, page 3.) 
 
 That agreement may amount to a contract, it is necessary that 
 it be such an one as binds the parties thereto by legal obligation ; 
 that is, such an one as the law will require the parties to carry out 
 according to the terms of its expression. The obligation of con- 
 tract is the legal tie binding the parties to one another, in respect 
 to some future acts or forbearances, as to which thej r have 
 expressed a common intention which changes their legal relations 
 to one another. Certain things are prerequisite to all civil ob- 
 ligation, whether created by contract or otherwise: (1) there 
 must be two or more parties bound by the legal tie; a man can 
 not be bound to himself by a legal obligation, he can not contract 
 with himself, even in different capacities. (2) The parties must 
 be definite; this element distinguishes these private obligations 
 from the political covenant which exists between the individual 
 and the community as to his conduct, and which is enforced by 
 the Criminal Law. (3) The act or forbearance in respect tc 
 
 * This chapter was prepared by Mr. E. W. Townes. of the Houston 
 bar, and is published by his permission.
 
 OUTLINE OP THE LAW OP CONTRACTS. 583 
 
 which they are bound must also be definite. (4) The thing to be 
 done or forborne, the subject matter of the obligation, must be 
 reducible to a money value, and must be lawful. (Anson, 
 pages 7 and 8.) 
 
 "When the two elements, agreement and obligation, concur, we 
 have a contract, which may be best defined as an " agreement en- 
 forcible at law, made between two or more persons, by which 
 rights are acquired by one or more to acts or forbearances on the 
 part of the other or others." (Anson, page 11.) 
 
 We will discuss contracts under the following heads: 
 
 (1) Essentials of Contract. 
 
 (2) Classification of Contracts. 
 
 (3) Operation of Contracts. 
 
 (4) Interpretation of Contracts. 
 
 (5) Discharge of Contracts. 
 
 ESSENTIALS OP CONTRACT. 
 
 Topics to be treated : 
 
 Offer and acceptance. Form. 
 
 Capacity of parties. Genuineness of assent. 
 
 Consideration. Legality of object. 
 
 Offer and Acceptance. 
 
 Offer and acceptance is necessary to the formation of every con- 
 tract; for there can be no agreement, such as is requisite to a 
 contract, that is not the result of an accepted offer to act or for- 
 bear. 
 
 1. Possible forms of offer and acceptance are : 
 
 (1) An offer to make a promise, or to accept one. This is good 
 in some jurisdictions but not all. 
 
 (2) The offer of an act for a promise. 
 
 (3) The offer of a promise for an act. 
 
 (4) The offer of a promise for a promise. 
 
 It is evident, therefore, that either the offer, or its acceptance, 
 may be made by words or conduct. Where both are made by 
 words, the resulting contract is ex/press; where either is made by 
 conduct, the resulting contract is said to be implied. 
 
 2. The offer must be intended to create, and capable of creat- 
 ing, legal relations.
 
 584 AMERICAN ELEMENTARY LAW. 
 
 3. The offer must be definite, and must include all the essen- 
 tial terms of the proposed agreement, either expressly or by clear 
 implication. 
 
 4. An offer is not complete until it has been communicated to 
 the offeree, actually brought to his knowledge. It need not be 
 made to an ascertained person, but may be made to the public at 
 large. It can only be accepted by a definite and ascertained per- 
 son. 
 
 5. After acceptance, an offer becomes irrevocable, and the par- 
 ties are bound by the legal obligation of the contract; before ac- 
 ceptance, the offer may be either revoked by the offerer, in which 
 case the revocation must be brought actually to the knowledge of 
 the offeree before he has accepted; or it may lapse (1) by the 
 death of either party; (2) by a failure to accept in the manner 
 prescribed, or (3) by a failure to accept within the time pre- 
 scribed or, where no time is prescribed, within a reasonable time. 
 
 6. Acceptance can not be inferred from silence, it must be com- 
 municated to the offerer; but in this connection, communicated 
 does not mean actually brought to his knowledge, as in case of 
 communication of the offer. It means that there must be some 
 overt act, or speech, which evidences the intention to accept; it 
 is not always necessary that the offerer be should actually in- 
 formed of this act or speech. The acceptance is complete, that 
 is, communicated, when it has been expressed by word or act, in 
 the manner required by the offerer, who may waive actual notice 
 to himself, if so disposed. 
 
 7. When an offer is made it must be accepted as made, without 
 qualification, that is, the offer must be definite, and include all 
 the essential terms of the proposed agreement, and acceptance 
 must be in toto and absolute ; any effort to accept any part of the 
 offer, or to qualify the same in any way, constitutes merely a new 
 offer on the part of the original offeree to the original offerer, 
 which the latter may accept or not, ^s he sees fit. 
 
 Capacity of Parties. 
 
 Of Natural Persons. — As we have seen before, every contract 
 must have its origin in voluntary assent of the parties, in true 
 agreement. There are some classes of natural persons that are 
 recognized or regarded by law as wholly or partially incapable of
 
 OUTLINE OF THE LAW OP CONTRACTS. 585 
 
 giving such voluntary assent, and, therefore, as incapable of mak- 
 ing a valid contract. 
 
 The presumption is always in favor of contractual capacity; 
 and, if incapacity of any kind is relied upon as a defense, it must 
 be pleaded and proved by the party relying on it. 
 
 Natural persons whose contractual capacity is more or less lim- 
 ited are: 
 
 1. Aliens. 
 
 2. Infants. 
 
 3. Lunatics, idiots, and drunken persons. 
 
 4. Married women. 
 
 Allots. — An alien, in the United States ordinarily has the same 
 capacity to contract as a citizen, so far as personal property is 
 concerned. As to contracts with reference to land, different stat- 
 utory disabilities exist in different States. 
 
 Infants. — An infant, at Common Law, is a person under the 
 age of 21 years. In several States the female becomes of age 
 at 18 years or upon marriage. The contracts of an infant, ex- 
 cept those for necessaries, are voidable at his option ; and even in 
 the latter, he is not bound to pay the contract price, only a rea- 
 sonable price. By the weight of authority, an infant is bound 
 by his fraudulent representations, and where he represents him- 
 self to be of age, under such circumstances as to amount to fraud, 
 he can not avoid the contract induced by those representations. 
 
 It is held, in most jurisdictions, that any power of attorney 
 given by an infant is an exception to the general rule laid down 
 above, and is void, not voidable. 
 
 Where the subject matter of the contract is personal property, 
 he can avoid either before or after coming of age. 
 
 Where the subject matter of the contract is real property, he 
 can not avoid his contract until after he has reached his majority. 
 
 The minor may disaffirm either an executed or executory con- 
 tract : 
 
 (1) When the contract is still executory on his part he can 
 interpose infancy as a defense to an action brought against him 
 on the contract. 
 
 (2) If the infant has performed partly or wholly, but the con- 
 tract remains executory on the other side, he can recover what he 
 has given up, and cancel the contract.
 
 586 AMERICAN ELEMENTARY LAW. 
 
 (3) If both parties have performed the contract wholly or in 
 part, the infant may tender back what he has received, and re- 
 cover what he has given. 
 
 (4) If the infant seeks to disaffirm his contract, he must return 
 the consideration, if still under his control ; if he has disposed of 
 same, after reaching his majority, he can not disaffirm, unless he 
 can return consideration; if he has dissipated same during his 
 minority, he may disaffirm, without returning what he had re- 
 ceived. 
 
 (5) The infant must avoid the contract within a reasonable 
 time after coming of age, otherwise his silence will be taken as 
 an affirmance. 
 
 "What is a reasonable time is, in each case, a question of fact, 
 and has been said to be "such a period as, in view of all the at- 
 tending facts, would rebut any presumption of an intention to 
 disaffirm." 
 
 (6) He can not disaffirm the contract, if he has once ratified 
 it, after coming of age, either expressly, or by act clearly evinc- 
 ing an intention to ratify it. 
 
 (7) He may disaffirm expressly, or by act clearly evincing an 
 intention to disaffirm. 
 
 An infant is liable for necessaries purchased, but can not be 
 compelled to pay therefor more than the reasonable value. If 
 the contract price exceed reasonable value, he can not be held 
 to pay contract price. 
 
 What are necessaries, is a mixed question of law and fact, de- 
 pending upon the position, training, social standing, means, etc . 
 of the infant. 
 
 If the infant be emancipated, he can contract as an adult. So 
 if his disabilities have been removed. 
 
 Lunatics, Idiots and Drunkards. — The agreements of an idiot, a 
 lunatic, or a person too drunk to be able to give his voluntary as- 
 sent thereto, are voidable unless they be for necessaries, or un- 
 less the sane person did not know of the other party's insan- 
 ity or idiocy, and the contract is so far executed that the parties 
 can not be put in statu quo. If one of the parties has been de- 
 clared insane, an idiot, or an habitual drunkard, under the pro- 
 visions of a statute the presumption is that the contract was not
 
 OUTLINE OF THE LAW OP CONTRACTS. 587 
 
 made in a lucid moment. Otherwise, the burden of proving the 
 disability is on the party setting it up. 
 
 Married Women. — At Common Law married women have no 
 power to bind themselves by contract. The wife is the agent by 
 necessity of the husband and as such can bind him for neces- 
 saries for herself and children. She is also presumptively her 
 husband's agent in the conduct of the ordinary domestic affairs 
 and can bind him by contracts with regard thereto. In each of 
 these instances, the woman exercises the contractual power of her 
 husband. So they constitute no exception to the rule above stated. 
 
 This rule of the Common Law has been very greatly modified 
 in most, if not in all, of the States of the Union. All these modi- 
 fications have been enlargements of the married woman's power. 
 In many of the States married women now have extensive con- 
 tractual capacity ; in some they have practical control over their 
 individual property of all kinds; in some they can conduct mer- 
 cantile business either singly or as members of a firm; in many 
 they can hold stock in corporations. In the States of the South- 
 west and of the Pacific Coast the old Civil Law doctrines of sep- 
 arate and community property of the spouses, modified by stat- 
 utes, are in force. It is impossible to systematize and summarize 
 all of these various statutory modifications of the Common Law 
 and Civil Law rules. The law of each jurisdiction on this sub- 
 ject must be consulted. 
 
 Of Corporations. — A corporation is an artificial person created 
 by the law and deriving its power from the law. The power of a 
 corporation to contract is given by the general laws of the State, 
 and is limited to the scope of the purpose of its creation. 
 
 Corporations have three general classes of powers : 
 
 (1) Those incident to corporate existence. 
 
 (2) Those expressly conferred by law. 
 
 (3) Those implied as reasonably necessary to carry out the ex- 
 press powers. 
 
 The power to contract to some extent is inherent in the idea of 
 a private corporation. What may be done under this power by 
 any particular corporation depends largely on the nature and the 
 purpose of the corporation. The express powers of a corporation 
 depend upon the terms of its charter, which, as we have seen.
 
 588 AMERICAN ELEMENTARY LAW. 
 
 consists of the act of incorporation, where the company is cre- 
 ated by special law, and of the articles of association and the ap- 
 plicable terms of the statute when created under a general en- 
 abling act. The implied powers are those reasonably incident to 
 the express powers conferred by the charter in the particular 
 case. 
 
 Any contract made by a corporation either through its stock- 
 holders, directors, general officers, subordinate officers, or agents, 
 within the limit of any of the three classes of powers above re- 
 ferred to is binding upon the corporation. 
 
 If a corporation shall attempt to enter into any contract not 
 within one or the other of the above powers, the attempt is ultra 
 vires, and its legal results will depend upon the circumstances. 
 If the agreement has been fully performed, ordinarily the rights 
 of parties under it will not be disturbed. If the agreement has 
 been performed on one side and not on the other, the party who 
 has not performed will either be compelled to perform or to put 
 the other party in statu quo, as is most just under all the circum- 
 stances. If the agreement is entirely unperformed, neither party 
 can enforce performance nor recover damage for breach. 
 
 The effect of ceasing to do business by a corporation and 
 abandoning the corporate enterprise, by the better opinion, is, 
 instanter, to destroy the power of the corporation to enter into 
 contracts. Its affairs must be wound up under the rules govern- 
 ing the closing out of dissolved and insolvent corporations. In 
 some jurisdictions this is accomplished by means of receivership 
 in some competent court ; in other jurisdictions, the last board of 
 directors are constituted trustees to take charge of the assets and 
 wind up the affairs of the concern. 
 
 Consideration. 
 
 Necessity For. — At Common Law consideration is necessary to 
 support all simple contracts; that is, all contracts not of record 
 or under seal. 
 
 So-called contracts of record differ so greatly from the ordi- 
 nary contracts in the business world that they can scarcely be re- 
 garded as within our present subject. They pertain more to the 
 law of procedure and the doctrines of res adjudicata. 
 
 Contracts under seal, it is said, do not require consideration.
 
 OUTLINE OF THE LAW OF CONTRACTS. 589 
 
 Seemingly the prevailing doctrine in America is that the seal im 
 ports or satisfactory proves consideration, and that if a sealed 
 instrument in fact is not supported by consideration at the time 
 it is executed, or if after execution, the consideration fails, by 
 proper pleading and proof, these facts may be taken advantage 
 jf to avoid the agreement. If this be not true as to agreements 
 required to be sealed at Common Law, it certainly is the prevail- 
 ing doctrine as to contracts which are required to be sealed only 
 by reason of some statute. 
 
 What is Consideration. — Considerations are spoken of as good 
 and valuable. 
 
 Good consideration consists in natural love and affection or 
 blood relationship. It is really more akin to motive than to ac- 
 tual consideration. It is never recognized as sufficient to sup- 
 port an executory simple contract. 
 
 Valuable consideration is a much more important matter. It 
 has been defined in many ways. Mr. Anson says in substance 
 that a valuable consideration is something done or forborne or 
 suffered, or something promised to be done, forborne or suffered 
 by the promisee on account of the promise made to him. 
 
 Mr. Hughes in his work on contracts says: "A valuable con- 
 sideration is a benefit to the promising party or to a third person 
 at his request ; or an injury, loss, charge, or inconvenience, or the 
 "vctual risk thereof to the party promised." 
 
 A careful study and comparison of these two definitions will 
 ?ive an accurate idea of the law's conception of consideration. 
 
 Consideration differs from motive in several respects. Motive, 
 is such, is always ex parte. It induces the one party to act but 
 is not taken into consideration by the other. If any particular 
 inducement, which would be motive merely while operating upon 
 the mind of one of the parties, becomes so connected with and 
 embodied in the agreement as to make it a mutual matter operat- 
 ing alike on both parties, it would cease to be motive simply and 
 become consideration. If a man needs a thing and desires to buy 
 it to supply this need, his sense of need is the motive inducing 
 him to buy but it is no part of the consideration for the purchase. 
 The consideration in such case would be the money that he paid 
 on the one hand, and the transfer of the title to, and delivery of 
 the thing on the other. If, however, he makes known the speci
 
 590 AMERICAN ELEMENTARY LAW. 
 
 fic need and the purpose for which he desires to buy and the seller 
 says ' ' I will sell you a thing which will supply that need and ac- 
 complish that purpose," this mutual appreciation of the mo- 
 tive and acceptance of it and incorporating it into the contract 
 changes it from simple motive into legal consideration. 
 
 An existing moral obligation such as gratitude, can not furnish 
 the consideration of a valid contract, except in the one class of 
 cases where there has been a pre-existing legal obligation which 
 can not any longer be asserted. For example : A owed B a debt, 
 which is now barred by limitation, and B now has no remedy 
 by which to collect it. A promise (in writing, as recognized by 
 the statute formerly cited) from A to B to pay the debt will be 
 supported by the previous debt, because of the legal obligation 
 which once existed. The same is true if the debtor has been re- 
 lieved by discharge in bankruptcy. 
 
 Adequacy. — So long as there is some consideration that has a 
 money value, even though slight, it will support a promise, in the 
 absence of fraud, mistake, accident, or undue influence. Inade- 
 quacy of consideration, if very marked, may be evidence which 
 has some effect in establishing fraud, etc., but, of itself, will not 
 be ground for avoiding the contract. Illustrations : A note exe- 
 cuted in compromise of a doubtful claim is based upon valuable 
 consideration, even though it should afterward transpire that the 
 claim was not good. 
 
 Extinguishment of a bona fide debt is a valuable consideration. 
 Extension of time on a note is also. 
 
 Consideration Must Be Legal. — A consideration that is against 
 public policy, or public morality, or is prohibited by statute, can 
 not support a contract. 
 
 Consideration May Be Executed or Executory, But Not Past. — 
 An executed consideration exists where "one of the two parties 
 has, either in the act which constitutes the offer or the act which 
 constitutes the acceptance, done all that he is bound to do, under 
 the contract, leaving an outstanding liability on the other party 
 only." (Anson, 112.) 
 
 An executory consideration is one which consists in a promise 
 to do or to forbear in the future. 
 
 A past consideration is some act done, or forbearance suffered, 
 by one in time past, by which another has been benefited without
 
 OUTLINE OP THE LAW OF CONTRACTS. 591 
 
 incupring thereby any legal liability. If, afterward, the bene- 
 ficiary make a promise to the other to compensate him for such 
 set or forbearance, the promise is invalid, unless it has some new 
 consideration to support it. 
 
 Negotiable Instruments. — It is sometimes said that negotiable 
 instruments are an exception to the rule that no contract can 
 stand unless supported by consideration. This is not, ir. aL/ 
 real sense, time. Want, or failure, or partial failure of considera- 
 tion may always be plead in defence of an action on a negotiable 
 instrument, as between the original parties, "or when it (the in- 
 strument) shall have been assigned or transferred after the ma- 
 turity thereof ; or when the defendant may prove a knowledge of 
 such want or failure of consideration on the part of the holder 
 prior to such transfer." 
 
 Form. 
 
 Contracts May Be Either Written or Parol. — In English Law, 
 two aspects or species of written contracts are recognized 
 (1) The specialty, or contract under seal, and (2) the simple con- 
 tract, not under seal. The difference between the two, at Com- 
 mon Law, is very great. The former, being an instrument of 
 greater solemnity than the latter, proves itself, and does not re- 
 quire a consideration. The simple contract, on the other hand, 
 could, fo*" a long time, only be enforced at all where it was proven 
 by evidence aliunde. This is not now the case in England. A 
 simple contract can there be enforced, though' wholly executory; 
 consideration, of course, is necessary. 
 
 It is a general rulp that a parol, or verbal, contract is as bind- 
 ing and valid as a written one ; but there are certain exception? 
 declared by express legislative enactment. 
 
 Contracts Required to be in Writing. — Agreements which are 
 required to be in writing at Common Law are very few indeed. 
 There are, however, a number of statutory provisions requirinp 
 agreements of certain kinds to be in writing in order to be en 
 forceable. The most important statute on this subject is known 
 as the Statute of Frauds. The English statute on this subject 
 (29 Charles II, Chap. 3) is the basis of all the American legisla 
 tion thereon. The statutes of the several States are in the main 
 quite similar, though few, if any, of them are identical. As they
 
 592 AMERICAN ELEMENTARY LAW. 
 
 all grow out of the English statute, we will base our discussion 
 on that, modifying it so as to be fairly applicable to all of its 
 American followers. 
 
 The contracts within these statutes are of several kinds as fol- 
 lows : 
 
 (1) Contracts for the sale of real estate, or any interest 
 therein, or of the lease of real estate for a term specified in the 
 statute, varying in different States from one to three years. 
 
 (2) Agreements by an executor or administrator to pay the 
 debts of the estate out of his own property. 
 
 (3) Agreements by one person whereby he becomes chargeable 
 for or promises to answer for the debt, default, or miscarriage of 
 another. 
 
 (4) Agreements made upon consideration of marriage. 
 
 (5) Agreements not to be performed within one year from the 
 making thereof. 
 
 (6) Contracts for the sale of goods, wares, or merchandise of 
 a specified amount. In this last case, the necessity for written 
 memorandum is obviated by either delivery of the goods in whole 
 or in part, or the payment of earnest money or part payment of 
 the purchase price. 
 
 The reason for the requirement of the written memoranda as 
 evidence of the sale of land or of interest therein, or of 
 long continuing leases is readily apparent. Land is the 
 most permanent kind of property and rights in it to be en- 
 joyed in the distant future are necessarily dependent upon pres- 
 ent transactions affecting its title, and permanent evidence of 
 these transactions is essential to the peace and well being of future 
 owners. The English statute covers sales of lands and of all in- 
 terests in and concerning them. This is broader than a number 
 of the American statutes which are limited to sales of lands with- 
 out including interests- in or concerning them. 
 
 The difference between the two is illustrated in agreements 
 warranting title to land. Under the English statutes, and those 
 following its phraseology, a parol undertaking to warrant the 
 title to land is not good. In States in which the statute is lim- 
 ited to the sale or lease of land, such an undertaking is good. 
 
 The purpose of this statute is to prevent fraud and the courts 
 have wisely held that its terms ought not to be so rigidly enforced
 
 OUTLINE OF THE LAW OF CONTRACTS. 593 
 
 as to make it an instrument of harsh injustice. Hence it is held 
 that if land be sold by parol and the purchaser is put in posses- 
 sion and pays the purchase price and makes improvement on the 
 land, the parol agreement will be enforced. To permit the seller 
 to reclaim the property under such circumstances would defeat 
 the very purpose for which the statute was enacted. All these 
 facts, however, must concur to take the transaction out of the 
 statute. 
 
 To bring a lease within the statute the agreement must show 
 that it is for a longer term than the statutory limitation. Hence, 
 a lease for one year where the statute fixes that limit with the 
 privilege of continuing for two years does not come within the 
 statute. The term might end with the first year. 
 
 The second provision relates to promises which undertake "To 
 charge any executor or administrator, upon any promise, to an- 
 swer any debt or damage due from his testator or intestate out 
 of his own estate." 
 
 This provision is self-explanatory, and is simply a protection to 
 executors and administrators against paying, from their own 
 pockets, any debt due from the estate of their testator or intestate. 
 
 The third relates to agreements "To charge any person, upon 
 a promise, to answer for the debt, default, or miscarriage of an- 
 other." 
 
 Contracts of guaranty or suretyship fall within the statute;, 
 contracts of indemnity do not. The test, generally speaking, is 
 this: Is the promisor totally unconnected with the transaction, 
 except by means of his promise to pay the debt of another, or is 
 he himself to derive some benefit from the contract? In the for- 
 mer case, the contract is one of guaranty; in the latter, one of 
 indemnity. 
 
 A more minute analysis supplies the following rules: 
 
 In order to bring the contract within the statute so as to make 
 writing necessary. 
 
 ( 1 ) The promise must be made to a person to whom the third 
 person is liable. 
 
 (2) The liability of such third person, which the promisor 
 agrees to assume, or assure, must have an existence, present or 
 prospective. 
 
 (3) The agreement of the promisor must not be such as extin- 
 
 38
 
 594 AMERICAN ELEMENTARY LAW. 
 
 guishes when made the liability of the third person to the prom- 
 isee. 
 
 (4) The promise must be to answer for the debt or liability of 
 the third person out of the promisor 's property, not out of that of 
 the third person, or of another. 
 
 (5) The promise must not be made under circumstances under 
 which the promisor is subserving some interest or purpose of his 
 own. 
 
 The provision regarding agreements made upon consideration 
 of marriage does not need elucidation. 
 
 The next subdivision of the statute relates to contracts "not to 
 be performed within the space of one year from the making 
 thereof." 
 
 This clause applies only to a contract which can not be per- 
 formed within one year. If the agreement, from its terms, may 
 or may not be performed within one year, it is not within the stat- 
 ute, and may be made by parol. 
 
 Also, where either one of the parties to the contract, from the 
 terms thereof, may perform his part alone within one year, the 
 contract is not within the statute, even though the other party 
 can not perform his part within the year. 
 
 It follows as of course, from the above, that every contract 
 which has been wholly executed on one side is without the stat- 
 ute. 
 
 It has. however, been repeatedly decided that a contract can not 
 be made by parol to begin in futuro and extend to a time more 
 than one year from the time of making. This does not apply to 
 contracts of lease, because they are expressly provided for in the 
 fourth section of the article. 
 
 The last provision of the Statute of Frauds relates to the sales 
 of goods, wares, and merchandise. 
 
 The word sales is not used here in the technical sense of a pres- 
 ent transfer of the title to personal property for a price in money. 
 It is broader than this in two particulars; first, it includes all 
 transfers of the title to personal property without reference to 
 whether the consideration be money or other thing of value; sec- 
 ond, it includes executory sales, usually known as agreements to 
 sell, in which title is to pass not in the present but in the future. 
 
 Goods, wares and merchandise are the terms most frequents
 
 OUTLINE OF THE LAW OP CONTRACTS. 595 
 
 used in the Statutes. They are ordinarily construed to include 
 all personal property whatsoever, whether corporeal or incor- 
 poreal, in possession or in action. The statutes in some of the 
 States expressly include things or choses in action, but the con- 
 struction seems to be the same with or without these words. 
 
 Each statute mentions some value which the thing sold must 
 have in order for the statute to apply. Fifty dollars is the most 
 usual minimum in the United States. 
 
 This clause in the statute is not absolute and the necessity for 
 the written memorandum is obviated by the seller delivering to 
 the buyer and the buyer accepting from the seller all or a part of 
 the thing sold, or by the buyer paying to the seller all or a part 
 of the purchase price or something by the way of earnest money. 
 If either of these is done there is no necessity for writing. 
 
 What is a Written Contract Under the Statute of Frauds? — ■ 
 We have enumerated the classes of contracts to which the statute 
 applies. The next question is: "What does the statute require 
 with reference to such contracts? 
 
 The agreement, or some memorandum thereof, must be in writ- 
 ing, signed by the party to be charged therewith, or by some per- 
 son by him thereunto lawfully authorized. In order that the 
 memorandum may be sufficient to meet the requirements of the 
 statute, it should (1) give the names of the parties to the con- 
 tract; (2) embody the substance of the terms agreed upon-, 
 (3) fix the identity of the subject matter of the agreement; (4) it 
 must be signed by the party to be charged, or his agent. 
 
 This memorandum need not appear wholly in one document or 
 paper, but may consist of various letters or papers, which must, 
 however, be connected and complete. Parol evidence is permis- 
 sible to connect different documents, if they refer to one another 
 and, when taken together, furnish a complete memorandum. 
 
 Effect of Noncompliance. — The effect of noncompliance with 
 the statute is to render the agreement unenforcible at law. It 
 can not be said to render the agreement either void or voidable, 
 but since the agreement can not be proved by parol testimony, it 
 simply renders the party seeking to enforce same incapable ^f 
 establishing any right under it.
 
 CHAPTER V. 
 
 CONTRACTS (CONTD.) 
 GENUINENESS OP ASSENT. 
 
 "Want of genuine assent may exist in agreements where there 
 has been an apparent assent. It is, in any case, due to one of 
 the following: 
 
 (1) Mistake. 
 
 (2) Misrepresentation or Fraud. 
 
 (3) Duress. 
 
 (4) Undue influence. 
 
 Mistake. 
 
 Mistake is an erroneous conception or belief. For the law to 
 take cognizance of mistake it must induce conduct which is di- 
 rectly injurious to the party mistaken. It is sometimes quite 
 difficult to distinguish between mistake and fraud. The line of 
 separation seems to be that fraud is applied to misconception for 
 which the party getting the advantage is responsible, that is, to 
 deception either induced by him, or if not so induced, of which 
 he has purposely availed himself, while mistake is limited to er- 
 roneous impressions which the party obtaining the advantage of 
 is in no way responsible for. 
 
 Mistake is spoken of as of two kinds, mistake of law and mis- 
 take of fact. 
 
 Mistake of Law. — Mistake of law is a misapprehension of the 
 law applicable to the agreement, or as to the legal effect of the 
 agreement, the facts of the transaction being fully understood. 
 The law here, as elsewhere, means the law in force within the 
 jurisdiction where the agreement is entered into. All foreign 
 laws are facts. A mutual mistake of law is never relieved against ; 
 a unilateral mistake is never relieved against unless it be on some 
 material point and has directly resulted in injury to the party
 
 GENUINENESS OP ASSENT. 597 
 
 mistaken. The cases are very rare even under these conditions, 
 as the very general rule is that everyone is presumed to know the 
 law and ignorance of the law does not excuse. 
 
 Mistake of law does entitle to relief, however, where the in- 
 jured party, by reason of his erroneous ideas of the law, mis- 
 takes his legal rights in the subject matter of the contract so that 
 he does not rightly apprehend the nature and extent of the rights 
 existing in him and about which he is negotiating. If he is aware 
 of his legal rights, no mistake as to the legal effect of the contract 
 upon his known rights will entitle him to relief. 
 
 It is customary to speak of two other conditions as mistakes of 
 law entitling to relief. These come within or near to the division 
 line between mistake and fraud. They may well be treated 
 under either. 
 
 The first of these are mistakes of law induced by the false 
 statements of the other party to the transaction. As the law pre- 
 sumes everyone to know its rules and their effect upon his rights, 
 it does not look with favor upon the claim of any person who says 
 he has been misled or deceived as to the law, and requires strict 
 proof of ignorance of the law on the part of the one claiming re- 
 lief, and of facts which entitle him to rely upon the other for 
 information regarding it. If these facts are shown, and the per- 
 son undertaking to give the information makes material misstate- 
 ments as to the law by which the other party is actually deceived 
 and is thus induced to act to his injury, the law will give relief. 
 
 The other cases spoken of as entitling to relief on account of 
 mistake of law are scrutinized even more closely. These are cases 
 in which the party complaining was really ignorant of some ma- 
 terial matter of law and his ignorance was taken advantage of by 
 the other party, purposely and intentionally. Here there has 
 been no deception practiced by the party getting the advantage. 
 He simply knows of the material misconception in the mind of the 
 other party and purposely takes advantage of it. It is a condition 
 analogous to non-disclosure in the law of fraud and relief is never 
 granted unless there is something in the circumstances that im- 
 posed upon the person getting the advantage, the duty of dis- 
 closing the law to the other party. 
 
 Mistake of Fact. — A mistake of fact is the ignorance, or forget- 
 fulness, of a fact, pnst or present or the belief in the existence of
 
 598 AMERICAN ELEMENTARY LAW. 
 
 a fact, past or present, which did not or does not exist. The mis- 
 take may be 
 
 (1) as to the person with whom the contract is made, as if A 
 should pay money to B, thinking he was C. with whom he had re- 
 lations ; 
 
 (2) as to the nature of the transaction, as if A should sign a 
 deed to B, thinking it was only a mortgage ; 
 
 (3) as to the existence of the subject matter, as if A should sell 
 B a horse which should afterward turn out to have been dead at 
 the time of sale ; 
 
 (4) as to the identity of the subject matter, as if A should un- 
 dertake to sell B a horse, B understanding that it was another; 
 
 (5) as to the terms and conditions offered and accepted, as a 
 misunderstanding as to the price agreed upon. 
 
 A mistake of fact, to be relieved against, must be mutual, and 
 material ; or, if unilateral it must be material and not due to the 
 party's own negligence; or it must be made under circumstances 
 which give rise to a presumption of fraud, undue influence, or 
 abuse of confidence. 
 
 Misrepresentation and Fraud. 
 
 The misrepresentation against which the law will relieve must 
 be false representation as to a material fact, past or present, as to 
 which the other party has been deceived and so induced to act. to 
 his injury. If there is present in the mind of the party making 
 the representation a knowledge of the falsity, or a reckless dis- 
 regard of the truth or falsity, of the representation and an inten- 
 tion to deceive the other party thereby and have him act on it. 
 then the misrepresentation amounts to fraud. The two terms are 
 frequently used as interchangeable in the decisions, but the dis- 
 tinction is practically recognized. The first is very often called 
 fraud, or " equitable fraud." and the second "actionable fraud," 
 or fraud at Common Law. The effect of misrepresentation is to 
 give the party who has been deceived and suffered a right to re- 
 scission or cancellation of the contract. It may be set up as a de- 
 fense to an action on the contract. The effect of fraud is the 
 same, except that in addition to the remedies mentioned it gives a 
 right to damages for the injury suffered.
 
 GENUINENESS OF ASSENT. 599 
 
 Elements of Fraud, or Deceit. 
 
 (1) A representation which must he 
 
 (2) False, 
 
 (3) As to a material fact 
 
 (4) Made with knowledge of its falsity, or a reckless disregard 
 as to its truth or falsity. 
 
 (5) Made with intent to influence, and actually deceiving. 
 
 (6) Acted upon by the other party, to his injury. 
 Representation. — The subject matter of the representation is 
 
 usually immaterial ; that is, it may be as to personal property, the 
 title to real estate, the solvency or credit of the person making it 
 or of another, etc. The representation may be made by writing 
 or parol, by words or conduct. In the following cases silence, or 
 nondisclosure of the truth, will constitute a representation : 
 
 (1) "Where active steps are taken to prevent discovery of the 
 truth. 
 
 (2) Where, though the representation made is true, so far as 
 it goes, the suppression of other pertinent facts renders it, in fact, 
 misleading and untrue. 
 
 (3) Where, from the peculiar relations existing between the 
 parties, the law regards the nondisclosure by one of them as a rep- 
 resentation that the suppressed facts do not exist. 
 
 False. — The representation must be false in fact, as well as in 
 intention. If the representation be partly true and partly false, 
 it is fraudulent. 
 
 A representation may be false in fact, though the words used 
 in making the statement are literally true; and, if so made with 
 an intent to deceive, and it does actually deceive, it is regarded as 
 false. 
 
 A representation may be true at the time it was made, and sub- 
 sequently become untrue to the knowledge of the party making it 
 before it is acted upon by the other party ; in such case, a failure 
 to disclose the change of circumstances is equivalent to a false 
 representation. 
 
 As to a Material Fact. — A false representation, to be deemed 
 fraudulent, must be a statement as to a past or present fact, as 
 distinguished from 
 
 (1) An expression of opinion or belief.
 
 600 AMERICAN ELEMENTARY LAW. 
 
 (2) A prediction or promise as to the future. The exception 
 is a promise made with no intention to perform. 
 
 (3) A statement of the law. The exceptions are: false state- 
 ment as to the law made by an expert to one whom he knows to 
 be ignorant, or made by one party to another between whom and 
 himself there is a relation of trust and confidence, or made as to 
 foreign laws, which are regarded as facts. 
 
 Materiality. — The fact as to which the misrepresentation is 
 made must be one material to the contract. 
 
 Materiality is a mixed question of law and fact. The follow- 
 ing are some of the principles that have been applied in determin- 
 ing it: 
 
 (1) That representations as to a fact directly affecting the sub- 
 ject matter of a contract, and without which the contract would 
 not have been made, are representations as to a material fact. 
 
 (2) That, on the other hand, if a person making a contract 
 does not rely upon the representations made by the other party, 
 or if the same are of such a character as to constitute no induce- 
 ment to enter into the contract, the represenations are not ma- 
 terial, and do not constitute fraud ; but 
 
 (3) That it is not necessary that a representation, in order to 
 be regarded as material, should have been the only inducement to 
 enter into the contract. 
 
 (4) That, if the representation is so trivial that it could not 
 have influenced the conduct of an ordinarily prudent man, it is 
 not material. 
 
 (5) That representations as to matters merely collateral to the 
 subject matter of the contract are not material. 
 
 (6) That, if a false statement merely affects the probability 
 that the contract will be performed, it is collateral, and under the 
 rule just stated is immaterial. 
 
 (7) It may further be said that the real question is. not 
 whether the party regarded it as material, but whether it was, in 
 fact, material ; so that the fact even that the party acted on the 
 representation as material is not always conclusive as to materi- 
 ality of the representation itself. 
 
 Knowledge of Falsity.- — This element of fraud is not a neces- 
 sary constituent of "equitable fraud," that is to say, a court will, 
 in the exercise of its equitable jurisdiction, grant a rescission,
 
 GENUINENESS OP ASSENT. 601 
 
 reformation, or cancellation of a contract, upon the one hand, or 
 refuse specific performance, on the other, because of an innnocent 
 misrepresentation, where the same has resulted in injury to the 
 other party. 
 
 It has, however, been long regarded as established that fraud 
 does not constitute an actionable wrong, that is, can not be the 
 basis for a suit for damages, where this element is lacking. The 
 knowledge may be 
 
 (1) Actual, where the party consciously makes false statement. 
 
 (2) Imputed, where he recklessly states something as true of 
 his own knowledge, not, in fact, knowing whether it be true or 
 false. Here the law imputes to him that knowledge which he has 
 falsely assumed to have. 
 
 Intent to Deceive and Deception. — To constitute fraud at Com- 
 mon Law, the representation must have been made with intent to 
 deceive. In misrepresentation in Equity it is not required in 
 all instances that the party making the misrepresentation shall 
 know its falsity. In such cases it is confusing to say that the 
 misrepresentation must be made with intent to deceive. It must 
 be made with intent to influence and it must in fact deceive. It 
 would be absurd to allow one to avoid a contract on the ground of 
 misrepresentations made to him if, he, at the time of entering into 
 the agreement, knew them to be false, and made the contract not- 
 withstanding. 
 
 Action by the Deceived Party. — Not only must the complaining 
 party have been deceived, but he must have been induced by this 
 deception to act in such way as to result in injury to him. De- 
 ception without action could not result in pecuniary hurt. It 
 is equally essential that the action induced should be injurious. 
 
 Duress. 
 
 Definition. — The duress which will entitle a party to avoid a 
 contract exists where one party, by the unlawful act of the other, 
 or of his authorized agent, or even by the act of some third person 
 with beneficiary 's knowledge, is constrained to perform the act 
 sought to be avoided, under circumstances which deprive him of 
 the power to exercise his free will in the matter. 
 
 Duress may consist in actual restraint or violence, duress of im- 
 prisonment, or threatened restraint or violence, duress per minas.
 
 602 AMERICAN ELEMENTARY LAW. 
 
 Duress of Imprisonment. — Kestraint must be unlawful. 
 
 (1) Arrest, for improper purpose, without just cause. 
 
 (2) Detention without lawful authority, whether for just 
 cause or not. 
 
 (3) Arrest for just cause and under proper process, but for 
 improper purpose. 
 
 The act sought to be avoided must have been done because of 
 the restraint. 
 
 Duress Per Minas. — (a) The threatened injury may be 
 
 (1) To one's person or liberty. 
 
 (2) To one's husband or wife. 
 
 (3) To one's parent or child. 
 
 (4) By a few cases the doctrine has been extended to cover 
 threats of injury to other blood relations — grandmother and 
 grandson ; aunt and nephew ; sister and brother. 
 
 (5) To one 's goods or property. 
 
 (6) In some cases to surety's principal, viz.: Those in which 
 the surety becomes such without the knowledge of his principal's 
 duress. 
 
 (7) To one's agent, who is induced to make contract. The 
 principle seems to be based upon sound reason that where one's 
 agent has been compelled to make a contract, under circumstances 
 amounting to duress, the principal should not be bound by the 
 contract any more than if he had made it personally under the 
 same circumstances. 
 
 (b) Threats must be shown to have coerced ; they need not, 
 however, have been present at the time of making the contract, 
 but the fear induced by them must be present. 
 
 (c) Threats need not have been sufficient to enthrall the mind 
 of the ordinarily firm man, if they did actually coerce the party 
 toward whom they were directed. It is the better doctrine, in 
 modern times, that regard must be had. in each case, to the men- 
 tal condition, age. sex, etc., of the party threatened. 
 
 Effect of Duress Upon the Contract. — With the exception to be 
 noted later, duress renders the contract voidable, at the option of 
 the coerced party. He must, however, proceed to avoid within a 
 reasonable time after the removal of the duress. 
 
 It is said that the purported contract will be absolutely void, 
 if obtained under such circumstances that there was no consent
 
 GENUINENESS OP ASSENT. 603 
 
 whatever, as where one should have his hand forcibly guided in 
 placing his signature to a written instrument, etc. 
 
 Subsequent purchasers can acquire rights under the voidable 
 contract ; never under the void. 
 
 Undue Influence. 
 
 Undue influence is defined as "moral duress," and exists in 
 those cases where one party takes an unconscientious advantage 
 of the other by reason of the influence which he has over him, 
 either growing out of their relation to each other, or out of some 
 marked inequality in the conditions under which they are deal- 
 ing. 
 
 By undue exercise of such influence is meant such an exercise 
 as coerces the will and overcomes the judgment of one party so as 
 to render free and voluntary assent on his part impossible. 
 
 Cases of undue influence usually occur in transactions between 
 persons who bear to each other a relation of trust and confidence, 
 but may arise in transactions between strangers, where one of the 
 parties is grossly ignorant, totally inexperienced, or in great per- 
 sonal need. 
 
 At English Law, the existence of special relations between the 
 parties raised a presumption of undue influence, which must be 
 rebutted by evidence. Anson says (page 222) : "The court will 
 not, necessarily, set aside a gift or promise made by a child to its 
 parent, by a client to his solicitor, by a patient to his medical man, 
 by a cestui que trust to his trustee, by a ward to his guardian, or 
 by any person to his spiritual adviser; but such relations call for 
 proof that the party benefited did not take advantage of his 
 position." The rules of the different States are not uniform as 
 to this matter. 
 
 The effect of undue influence, like that of duress, is to render 
 the contract voidable at the option of the injured party, within a 
 reasonable time after the removal of the influence. 
 
 I/egality of Object. 
 
 An agreement may have every one of the substantial and for- 
 mal requisites of a contract, and yet not carry with it the obliga- 
 tion of a contract, by reason of the fact that its object is one for- 
 bidden, or discouraged, by law.
 
 604 AMERICAN ELEMENTABY LAW. 
 
 Those objects of contracts which are forbidden by law, and 
 which vitiate agreements into which they enter, are: 
 
 (1) Those forbidden by the Common Law, as constituting an 
 indictable offense or a civil injury. 
 
 (2) Those forbidden by Common Law, as against public pol- 
 icy. 
 
 (3) Those forbidden by express statutory enactment. 
 
 Of these, both th'e first and second classes are spoken of com- 
 monly by our courts as coming under considerations of public 
 policy, and we will accordingly so classify and treat them. 
 
 We will consider illegality of object from the following points 
 of view : 
 
 1. As to the principles of construction applied in determining 
 it. 
 
 2. In respect to its effect upon agreements otherwise binding 
 and valid as contracts. 
 
 3. In respect to its classification. 
 
 Rides of Construction. — The following are a few of the rules 
 that have been applied by the courts, in the construction of agree- 
 ments, to ascertain the legality of their objects : 
 
 (1) The presumption of the law is in favor of the legality of 
 the contract, as against its illegality, until the latter is clearly 
 shown. 
 
 (2) It follows, as a corollary of the above, that where an 
 agreement is capable of two interpretations, under one of which 
 it would be legal and under the other illegal, favor is always to 
 be given to the construction that renders it legal. If, however, 
 it is shown that the intention of the parties was in accord with 
 that construction which renders it illegal, the agreement will not 
 be upheld, though on its face capable of the other construction. 
 
 (3) Extrinsic evidence may also always be introduced to show 
 the real illegality of an agreement legal on its face. 
 
 (4) If the illegality appears to the court, though not set up 
 by the defendant, it is the duty of the court, sue sponte, to refuse 
 to entertain the action. 
 
 (5) If a contract is valid where executed, it is valid every- 
 where. 
 
 (6) But an agreement contrary to common principles of jus- 
 tice, or of morality, can, in no case, be enforced.
 
 GENUINENESS OF ASSENT. 605 
 
 (7) If an agreement is invalid where made, it is invalid every- 
 where. 
 
 (8) If legal where sued upon, it will be presumed to be legal 
 where made, until the contrary is proved. 
 
 (9) A contract must be unlawful at the time it is made; other- 
 wise it can not be set aside on the ground of illegality. 
 
 Effect of Illegality. — The effect of illegality of object upon con- 
 tracts in which it exists is different in different eases, depending 
 on a variety of conditions. For instance : The illegality may ex- 
 ist in the subject matter of the contract, or in the consideration ; 
 it may affect the whole, or only a part of the contract, and in the 
 latter case the illegal and legal parts of the contract may or may 
 not be severable ; the illegality may exist in the immediate object 
 of the contract or in its ultimate effect and purpose ; and, in the 
 latter case, the parties may be in pan delicto, or one of them may 
 be ignorant of the ultimate illegal purpose. Under all the above 
 conditions, the contract may have been executed on both sides, 
 one side only or on neither side, before the courts are called upon 
 to pass on the effect of the illegality. 
 
 The general broad principle is well recognized that a contract 
 tainted by illegality is void, in the sense that it is unenforcible ; 
 but this can not be stated as a rule to be applied under all cir- 
 cumstances. 
 
 It is believed that an examination of the authorities will bear 
 out the following rules; for, though they may not be found 
 strictly and consistently applied, in all instances, the principles 
 upon which they are founded are sound, and are commonly ac- 
 knowledged, and have received repeated judicial sanction. 
 
 Agreement Wholly Executed. — Rule. — "Where an agreement, 
 though unlawful, has been executed on both sides, actual rights 
 are recognized as having been conferred by it to the same extent 
 as if it had been lawful in its inception, and these will not be in- 
 quired into or disturbed by the courts, at the instance of either 
 party concerned. The courts stand neuter between the parties, 
 and will not disturb or alleviate a condition brought about by 
 their own wrong-doing. 
 
 Agreement Performed on One Side. — Hide. — (a) Between par- 
 ties in pari delicto an illegal agreement, executed on one side, will 
 will not be enforced or relieved against
 
 606 AMERICAN ELEMENTARY LAW. 
 
 Rule. — (b) Agreements otherwise voidable: Where one party 
 to an illegal agreement was induced to enter into it by fraud, 
 undue influence, or duress, or where he was not sui juris at the 
 time of entering into the agreement, in short, in those cases in 
 which, if the agreement had not been illegal, he could have had it 
 avoided upon some other ground, the courts will grant relief to 
 him, in spite of the unlawfulness of the agreement. He must, of 
 course, return anything received under it. 
 
 Rule. — (c) Locus P 'cenit entice : Where one party repents and 
 repudiates the illegal agreement before the unlawful purpose has 
 been in anywise put into execution, the courts hold that, unless 
 the agreement was positively criminal or immoral in itself, he 
 may seek the aid of the court to avoid it. 
 
 Rule. — (d) Protective Statute: Where one party repents and 
 repudiates the illegal agreement, on no other grounds than that it 
 was made illegal by a statute, the courts have held that, if the 
 prohibition was imposed for the protection of a particular class, 
 to guard them from imposition, the court will not hear one who 
 contracted with a protected individual in the manner prohibited, 
 when he seeks to plead the illegality of the contract to defend 
 against enforcement, but will enforce the agreement. 
 
 In still another class of cases, the question as to whether par- 
 ties will be regarded as in equal fault depends upon their inten- 
 tions in entering into the contract. 
 
 When the immediate object of the agreement is unlawful, that 
 is, where the agreement can not be performed without the doing 
 of some act either unlawful by statute or regarded as repugnant 
 to public policy, the agreement is always absolutely void and un- 
 enforcible. This rule is of universal and consistent application, 
 and will be enforced regardless of the intention of the parties in 
 entering into the agreement. 
 
 Where the immediate object or consideration of a contract is 
 not unlawful, but the intention of one or both parties in making 
 it is unlawful, the contract may be either void, that is, totally un- 
 enforcible. or merely unenforcible by one of the parties. Three 
 rules may be laid down with assurance : 
 
 Rule. — (e) Unlawful purpose, participated in by both parties: 
 If the ultimate unlawful purpose itself is, at the date of enter-
 
 GENUINENESS OF ASSENT. 607 
 
 ing into the agreement, participated in by both parties, the agree- 
 ment is absolutely void, and will not be enforced at the instance 
 of either party, nor can property be recovered. 
 
 Rule.-^(i) One party ignorant of the unlawful purpose: 
 Where one party to an agreement whose ultimate purpose is un- 
 lawful not only did not share the illegal intent, but was ignorant 
 that such an intent was entertained by the other party, his stand- 
 ing, as to the contract, is not affected by the unrevealed purpose ; 
 and, if the immediate object of the contract be lawful, he can 
 enforce it, while the other party of course can not. 
 
 Rule. — (g) Mere knowledge of unlawful purpose, without ac- 
 tive participation: (1) Where the illegal purpose of one party is 
 the commission of some heinous crime, as distinguished from an 
 act merely malum prohibitum, or not of great magnitude, then 
 mere knowledge of such purpose by the other party, without any 
 other participation, will render him in pari delicto, and he can 
 neither insist upon performance nor ask relief. (2) Where the 
 unlawful purpose of one party is the commission of some venial 
 offense, or something merely malum prohibitum, then mere knowl- 
 edge of such purpose will, in some jurisdictions, render him in 
 pari delicto; in others, it will not do so without some active par- 
 ticipation on his part in the unlawful purpose. 
 
 Agreement Growing Out of Prior Illegal Agreement. — Rule. — 
 (h) Where an agreement grows immediately out of, or is con- 
 nected with, a prior illegal one, the illegality of such prior agree- 
 ment will enter into the new and render it void. 
 
 But if the new promise is founded wholly on a new considera- 
 tion, it is not rendered illegal. 
 
 Rule. — (i) The test is: Is the plaintiff compelled to resort to 
 the prior agreement, in order to make out his case? If so, the 
 new agreement is also illegal ; if not, it will be sustained. 
 
 The above test is applied to the following cases : 
 
 (1) An agreement to pay money owing on a prior illegal agree- 
 ment. 
 
 (2) An agreement of one upon request of another to pay such 
 other's debt, which arose on an illegal contract. 
 
 (3) Where such payment, as above, was not requested, but was 
 subsequently ratified. 
 
 Assignees of Illegal Agreements. — Rule. — (j) Nonnegotiable
 
 608 AMERICAN ELEMENTARY LAW. 
 
 Paper : The assignee of a non-negotiable instrument takes it sub- 
 ject to all defenses, growing out of illegality or otherwise, which 
 would have been good against the original party. 
 
 Rule. — (k) Negotiable Instruments: The assignee of a nego- 
 tiable instrument, if he is an innocent purchaser for value before 
 maturity, takes the same freed from all defenses based upon origi- 
 nal illegality, unless the instrument is illegal by reason of some 
 positive statute or is obtained by fraud in esse contractus. 
 
 Agreements Partially Illegal. — Rule. — (1) Entire Contracts: 
 Where a contract is entire, and its various stipulations are insep- 
 arable, the entire contract is rendered void by the illegality of one 
 of these stipulations. 
 
 Rule. — (m) Severable Contracts: Where the stipulations of a 
 contract are severable, the illegality of one or more of such stipu- 
 lations will not render the remaining ones void. That part of 
 the contract which is legal will be enforced. 
 
 Classification of Illegal Agreements. 
 
 Agreements Contrary to Public Morality. — Rule. — (1) Illicit 
 cohabitation, past or future, can not furnish the consideration of 
 a valid contract. 
 
 Rule. — (2) Agreements between husband and wife for a sepa- 
 ration, to take place in the future, are illegal ; such an agreement, 
 to take effect at once, is legal. 
 
 Agreements Prejudicial to the State in its External Relations. 
 (1) Agreements entered into between the citizens, or subjects, of 
 different States, after war has been declared between those States. 
 
 (2) Agreements made by a citizen, with the object of conduct- 
 ing hostilities against a State at peace with that of such citizen. 
 
 Agreements Prejudicial to the State in its Intern-al Affairs. — 
 Agreements detrimental to public service : 
 
 (1) Assignment by public officers of unearned fees. 
 
 (2) Agreements to pay public officers more than lawful fees. 
 
 (3) Agreements involving any species of traffic in public of- 
 fices. 
 
 (4) Lobbying contracts. 
 
 (5) Agreements which have the effect of placing the interest 
 of public officers in conflict with their duty. 
 
 (6) Agreements tending to interfere with the course of public 
 justice.
 
 GENUINENESS OF ASSENT. 609 
 
 (7) Certain agreements affecting the public duties of citizens, 
 as an agreement to pay one for his vote, etc. 
 
 (8) Agreements affecting private duties of individuals in 
 which the public has an interest, as 
 
 (a) Contracts involving the commission of an injury to a third 
 person. 
 
 (b) Contracts for puffing or suppressing competition at sales. 
 
 (c) Agreements tending to destroy the family relation, as 
 agreements to procure divorce, surrender custody of children, etc. 
 
 (9) Trusts and contracts in restraint of trade.
 
 CHAPTER VI. 
 
 CONTRACTS (CONTD.) 
 DIFFERENT KINDS OF CONTRACTS. 
 
 The subject matter and purposes of contracts are so various, and 
 so many kinds of obligations of different character frequently 
 enter into the constitution of a single contract, that it is thought 
 best, at this time, to examine these matters in detail. It is hoped 
 that a clear understanding, at this point, will much facilitate the 
 study of both Interpretation and Discharge. 
 
 Covenants and Conditions. 
 
 As every agreement can be reduced to offer and acceptance, so 
 it is believed that the terms of every contract can be reduced to 
 covenants and conditions. Different classes of these terms, of 
 course, have applied to them different names in particular 
 branches of contract law, particularly in the law of real estate, 
 which has a nomenclature of its own; but the terms themselves 
 are generic, and under one or the other designation falls every 
 executory term which can occur in a contract. 
 
 A covenant is an executory promise to do, or forbear, a particu- 
 lar thing. 
 
 A condition is a term of a contract whereby a qualification, or 
 restriction, is annexed to a covenant, so as either to suspend its 
 operation until the performance of some specified thing or the 
 occurrence of some specified event, or to destroy its effect upon 
 the nonperformance of some specified thing, or the occurrence or 
 nonoccurrence of some specified event. 
 
 A covenant may be independent; that is, the obligation of the 
 contract may demand its fulfillment absolutely, and in any event. 
 Such is usually the case where, in a contract containing mutual 
 covenants, each the consideration of the other, one party has fully 
 performed. Here the outstanding covenant of the other party is 
 usually absolute.
 
 DIFFERENT KINDS OF CONTRACTS. 611 
 
 Covenants may be mutual and independent, where the parties 
 have expressly agreed that each is to perform absolutely, and in 
 any event. Such covenants are rare. 
 
 Covenants may be mutual and dependent; that is, each fur- 
 nishes the consideration of the other, and they depend upon each 
 other in such a way as to render them concurrent conditions. 
 Such is the case in most contracts for the sale of goods for cash. 
 
 A covenant may depend upon a condition either (1) concur- 
 rent, as above, (2) precedent, or (3) subsequent. 
 
 A condition precedent is such an one as must happen, or be 
 performed, before the covenant dependent on it becomes opera- 
 tive. After performance of the condition precedent its depend- 
 ent covenant becomes absolute. 
 
 A condition subsequent is such an one as, when it does not hap- 
 pen, or is not performed as agreed upon, defeats the covenant de- 
 pending on it. The covenant is discharged. 
 
 A covenant may depend upon several conditions, or several 
 covenants may depend on one condition in the same contract. 
 
 Classification of Contracts. 
 
 Contracts may be classed, according to the way in which assent 
 is expressed, as express or implied. 
 
 According to the apportionability, or non-apportionability of 
 their mutual stipulations, they are severable or entire. 
 
 Contracts wherein there are several obligors or obligees may be 
 classed, according to their operation on the parties to them, as 
 several, joint, or joint and several. 
 
 "Written contracts may be classed, in respect to the presence or 
 absence of certain qualities that show themselves upon their as- 
 signment, as negotiable or non-negotiable. 
 
 Express and Implied Contracts. — As we have frequently had 
 occasion to notice, either offer or acceptance may be made by con- 
 duct as well as words, so both covenants and conditions may be 
 shown either expressly or by implication, and we may have either 
 an express or implied contract. 
 
 An express contract is one the terms of which have been agreed 
 upon by the parties and expressed in words. 
 
 An implied contract is one the agreement to the terms of which 
 is expressed by one or both parties by conduct such as to raise a 
 clear implication of assent.
 
 612 AMERICAN ELEMENTARY LAW. 
 
 Entire and Severable Contracts. — A contract may be entire, or 
 severable. An entire contract is one which, by its terms, nature, 
 or purpose, shows an intention of the parties that "each and all 
 of its parts, material provisions and the consideration are common 
 each to the other and interdependent;" that is, that all done, or 
 forborne, or promised to be done, or forborne, on the one side, 
 taken together forms the consideration of the acts, forbearances or 
 promises on the other. 
 
 A severable contract is one which, by its terms, nature, or pur- 
 poses, shows an intention of the parties to make certain acts, or 
 forbearances, on the one side apportionable to certain of the acts, 
 or forbearances, on the other, so that out of the whole several 
 smaller contracts may be carved each supported by consideration. 
 The intent of the parties, as indicated, usually controls. 
 
 Joint, Several, and Joint and Several, Contracts. — A contract 
 may bind by its application, or confer rights upon, one party 
 only on each side ; or it may impose liability or confer rights 
 upon several parties on each side. 
 
 A joint contract is one which imposes its obligation, in its en- 
 tirety, on two or more persons, or confers a right upon two or 
 more persons together. Upon the breach of a joint contract, 
 the remedy must be enforced by or against all the joint parties. 
 
 A several contract is one in which the right conferred, or the 
 liability imposed may be enforced by the promisee against any 
 one of the promisors separately each being subject to a separate 
 suit. 
 
 A joint and several contract is one which may be enforced 
 against all the promisors together as against any one of them sepa- 
 rately each being subject to a separate suit. 
 
 Negotiable and Non-negotiable Instruments. — The term nego- 
 tiable instrument is one applied to certain written promises to 
 pay money, the right of action on which is capable of being trans- 
 ferred by endorsement and delivery, in case the undertaking is to 
 a designated person or his order, and the like; or by delivery 
 merely, in case the undertaking is to A or bearer. The assignee, 
 in either case, has the right to sue in his own name and, if he has 
 taken the instrument before maturity and for a valuable consider- 
 ation, takes it relieved of all defenses against prior holders of 
 which he had no notice at the time of its acquisition except those
 
 DIFFERENT KINDS OF CONTRACTS. 613 
 
 based on positive statutes or which deny the legal existence of 
 the contract. This rule as to defenses goes even to the extent of 
 infirmity or want of title ; that is to say, a bona fide holder of the 
 kind described above takes a good title, even from one who has 
 found or stolen the instrument. The most usual forms of nego- 
 tiable instruments are bills, notes, and checks. 
 
 A bill of exchange is an absolute, unconditional order by one 
 person on another for the payment of a certain sum of money to 
 a third person. 
 
 A negotiable note is a written promise by one person to pay 
 absolutely, and at all events, a sum certain in money to a person 
 named, or his order, or to bearer. If it lacks any one of these 
 elements indicated, it loses its perfect negotiable character. 
 
 A check is an order upon a bank, purporting to be drawn upon 
 a deposit of funds, for the payment absolutely, and at all events, 
 of a sum certain in money to a person named therein, or his order, 
 or to bearer, and is payable instantly upon demand. 
 
 To be negotiable each of these instruments must be payable at 
 a certain time. As that is interpreted by the Law merchant, it 
 need not be a definite time. 
 
 Other instruments than those mentioned have been admitted to 
 partial negotiability, as, for instance, bills of lading, bonds, stocks, 
 etc. 
 
 The distinction between negotiability and mere assignability 
 must be constantly kept in mind. 
 
 Operation of Contract. 
 
 It may be laid clown, as the general principle, that the obliga- 
 tion of contract, since it is voluntarily assumed by the contracting 
 parties, can bind only those parties the one to the other, and can 
 not include within the operation of its bond any not parties to the 
 agreement. 
 
 Three questions arise in this connection, viz. : 
 
 1. Can a third person, not a party to the contract, enjoy and 
 enforce rights under the contract by reason of the fact that the 
 contract was made to his benefit? Can A enter into a contract 
 with B whereby B is to do or forbear something in favor of C, so 
 that C will have a right against B, under the contract, for the act 
 or forbearance? At English Law, it was generally said that such
 
 614 AMERICAN ELEMENTARY LAW. 
 
 a contract gave to C no right which he could enforce. In Amer- 
 ica, two doctrines have, in the main, received sanction in the vari- 
 ous States : 
 
 (1) "The Massachusetts rule" follows the English rule, that 
 no action is maintainable by one for whose benefit a promise is 
 made. 
 
 (2) "The New York rule." A third person (X), for whose 
 benefit a promise is made by A, upon consideration moving from 
 B (the promisee), may maintain an action upon the promise, pro- 
 vided B was, at the time the promise was made, under an existing 
 obligation to X which he is seeking to discharge by giving X" the 
 benefit of A's promise. (Anson, 280.) 
 
 "Where this last rule is followed, it is usually held that the 
 promisee may release the promisor from the promise before the 
 third party has accepted same and acted upon it, not afterward. 
 
 The rule announced in (2) above seems to be the rule followed 
 in Texas. Spann v. Cochran & Ewing, 63 Texas, 240, is a case 
 directly in point. In the opinion, the court says : "It is believed, 
 however, that such an agreement between a debtor and a third 
 person, made upon valuable consideration, gives to the creditor a 
 cause of action upon which he may sue and recover from the 
 person who has so contracted to pay him a debt originally due 
 only by the person to whom the promise is made. " Such a prom- 
 ise does not come within the provision of the Statute of Frauds 
 relating to contracts to answer for the debt, default, or miscar- 
 riage of another. Suit may be brought on such a promise by a 
 third person for whose benefit it was made in his own name. 
 
 2. Do the parties to the contract enjoy rights in rem, as well as 
 rights in personam; that is, does a contract between A and B give 
 to each not only rights against the other, but against the public as 
 well ? It is held that it does. The duty to respect the contractual 
 tie rests upon all the world ; and. in this indirect way, persons not 
 parties to the contract are affected by it. "A man who induces 
 one of two parties to a contract to break it, intending thereby to 
 injure the other, or to obtain a benefit for himself, does that other 
 an actionable wrong." 
 
 3. To what extent may the original parties to a contract assign 
 their rights and liabilities, under the contract, and substitute new 
 parties ?
 
 DIFFERENT KINDS OF CONTRACTS. 615 
 
 The liability of a contract can not be assigned, except by the 
 assent of the third party and the original parties, given in such a 
 way as really to effect a new contract, which is substituted for the 
 old. Liability can not be> assigned. 
 
 Eights under a contract may be assigned. We will notice 
 briefly the Common Law rule, and the equitable rule. 
 
 At Common Law. — In the early history of the Common Law a 
 chose in action was absolutely unassignable ; such a course was re- 
 garded as against public policy, because promotive of litigation. 
 It was, after some struggle, established that a foreign bill of ex- 
 change might be assigned and an action brought by the assignee 
 on the bill; and, still later, the exception was extended to inland 
 bills, and gradually to all negotiable paper. Later, in view of 
 the jursidiction of the equity courts, parties were permitted to 
 assign debts not evidenced by negotiable instruments; but, in 
 such cases, suit must be brought on them in the name of the as- 
 signor for the use of the assignee. In 1873 an Act of Parliament 
 was passed in modification of the Common Law, giving to the 
 assignee of any debt or legal chose in action all legal rights and 
 remedies; but " (a) the assignee takes subject to equities; (b) the 
 assignment must be absolute; (c) must be in writing, signed by 
 the assignor; (d) express notice in writing must be given to the 
 party to be charged, and title dates from such notice. " 
 
 In Equity: Bona fide assignments of choses in action for a val- 
 uable consideration were, from an early date, enforced in equity. 
 The rule was based upon public utility, and the advantage to com- 
 merce of the increased volume of transferable property. 
 
 Methods of Assignment. — By act of parties : No particular form 
 of words or form of instrument is required to constitute a valid 
 assignment. Where a chose in action is evidenced by a written 
 instrument, assignment may be made by separate writing, or by 
 endorsement. It is generally true that a valid assignment may 
 be made by parol, whether the chose of action be evidenced by 
 writing or not ; and where there is no written evidence of the debt, 
 such an assignment, of course, need not be accompanied by any 
 delivery actual or symbolical. 
 
 Where there is a note, bond, or other written obligation evi- 
 dencing the debt, there must be a delivery of the instrument.
 
 616 AMERICAN ELEMENTARY LAW. 
 
 The necessity for such delivery is, of course, obviated, where a 
 separate assignment in writing is drawn up and delivered. 
 
 By operation of law: (a) Upon the transfer of interests in 
 lands: 
 
 Covenants affecting lease-hold interests: It was the rule at 
 Common Law that assignability was an incident of lease contracts, 
 and that all leases, except those at will, could be assigned, unless 
 some restriction was found in the terms of the lease. Under this 
 rule, the liability for rent went with the assignment. 
 
 Covenants that run with the land : A covenant that is appur- 
 tenant to or annexed to the land, runs with the land, and a trans- 
 fer of the land works an assignment of the rights and liabilities 
 of the covenant, by operation of law. 
 
 Thus, a covenant of warranty runs with the land. The test as 
 to whether the covenant is personal, or runs with the land, is usu- 
 a^y this: Does the covenant extend to the thing in esse as part 
 of the conveyance? Thus, where land was conveyed to a railroad 
 company, and said company covenanted to fence same, such cove- 
 nant was held to be personal, and not such as would pass to a sub- 
 sequent purchaser. A covenant to keep in repair a building in 
 esse at the time of the conveyance would have been such an one as 
 would run with the land. 
 
 (b) Assignment by theory of representation. 
 
 (1) Death : Death of a party works an assignment of his rights 
 and liabilities of a personal nature to his representative, his exe- 
 cutor .or administrator. Such assignee takes only in the repre- 
 sentative capacity. Such contracts as depend upon the skill or 
 personal services of the deceased, such as contracts of employ- 
 ment, do not survive, and do not pass to the representative. 
 
 (2) The same rule as the above applies in cases of bankruptcy, 
 and upon exactly the same principles. 
 
 Effect of Assignment. — By the assignment of a chose in action, 
 the assignee succeeds to all the rights and privileges of his as- 
 signor. Where the chose assigned is a nonnegotiable instrument, 
 the assignee takes, subject to all the equities, offset, etc., existing 
 between the original parties. 
 
 If the instrument is negotiable the indorsement to an innocent 
 purchaser, for value, without notice before maturity, cuts off all
 
 DIFFERENT KINDS OF CONTRACTS. 617 
 
 defenses except those given by some positive statute or which dis- 
 pute the legal existence of the contract. 
 
 Interpretation of Contracts. 
 
 The subject of interpretation of contracts involves two things: 
 (1) The rules of evidence in accordance with which the con- 
 tract itself is to be established. 
 
 . (2) The rules by which the contract, once established, is to be 
 construed and the true meaning and scope of its terms arrived at. 
 
 Rules of Evidence. 
 
 Parol Contracts. — The rules governing the proof of parol con- 
 tracts are the general rules of evidence in force as to other mat- 
 ters, and reference is made to works on the Law of Evidence. 
 
 Written Contracts. — "When it is sought to enforce contracts 
 which are wholly or in "part in writing, it is still necessary that 
 some matters be established by parol ; as, for instance, the identity 
 of the party bound by the contract and the party sued, the ex- 
 istence of other facts and circumstances which change the legal 
 effect of the written instrument — such as fraud in the procure- 
 ment, etc. These rules may be classified under the following 
 heads : 
 
 (1) Evidence as to the existence of the document. 
 
 (2) Evidence that the document is a contract. 
 
 (3) Evidence as to the terms of the contract. 
 
 Evidence as to the Existence of the Document. — (a) If the 
 written contract itself can not be produced, the claimant must 
 prove by parol (1) that the contract was in existence and was 
 genuine; (2) that it is now lost, or destroyed, and that he is not 
 legally responsible for its nonproduction ; the terms of the con- 
 tract may then be proved as though it had been a parol contract. 
 
 (b) To prove an instrument, at Common Law, it is necessary 
 to call one of the attesting witnesses, if any, except where the doc- 
 ument is thirty years old and comes from the proper custody. 
 If there were no attesting witnesses or none of the attesting wit- 
 nesses are living, then the proof of the handwriting of the party, 
 or of the attesting witnesses as the case may be, must be made by 
 persons acquainted therewith. Reference is here made to the 
 works on Evidence, where these rules are more fully discussed.
 
 618 AMERICAN ELEMENTARY LAW. 
 
 (c) Where the writing does not set forth the whole contract, 
 parol evidence may be introduced to show that fact, and to sup- 
 plement, not to change, the writing. So parol evidence is admis- 
 sible to show the connection between various documents which, 
 taken together, set forth the contract. "Where the contract comes 
 under the Statute of Frauds, it seems that such evidence is not 
 admissible, unless the documents, in some way, refer to one an- 
 other. 
 
 Evidence That the Document is a Contract. — (a) Parol evi- 
 dence may be introduced, to show want of genuineness of assent 
 in any of its forms, as frauds, mistake, etc. 
 
 (b) Parol evidence is admissible, to show illegality of object. 
 
 (c) Parol evidence is admissible, to show want, or total, or par- 
 tial failure of consideration ; or that consideration existed, though 
 none was recited ; or that the real consideration was different from 
 that recited. 
 
 Two exceptions to this last rule are recognized: (1) "Where the 
 consideration is expressed in a contractual stipulation, it is a term 
 of the contract which can not be varied by parol. A deed which 
 recites consideration can not be defeated by showing no considera- 
 tion, or by showing different consideration. Of course, in both 
 the above instances fraud, accident, or mistake could be shown. 
 
 (d) Parol evidence is admissible, to show a condition, agreed 
 upon by the parties, which suspended the operation of the con- 
 tract, as where a deed has been delivered in escrow. 
 
 Evidence as to the Terms of the Contract. — It is the fundamen- 
 tal rule that the instrument is the best evidence of its terms ; but 
 we find certain well recognized exceptions to this rule : 
 
 (a) "Where the parties have not put all the terms of their 
 agreement in writing, such supplementary or collateral terms as 
 are required to complete the contract, as actually made, may be 
 shown. In such cases, the parol evidence can not be allowed to 
 contradict the writing, but only to supplement it, where a distinct 
 parol contract has been partially reduced to writing. 
 
 (b) Parol evidence may be introduced to explain latent ambi- 
 guities in the terms of the contract. The ambiguity may be as to 
 the subject matter, identity, or capacity of the parties or meaning 
 of some word used in a local or technical sense.
 
 DIFFERENT KINDS OF CONTRACTS. 619 
 
 (c) Parol evidence can be offered to show fraud in esse con- 
 tractus, or mutual mistake, in reducing the contract to writing. 
 
 Construction. 
 
 After the instrument itself has been proved, as the basis of 
 rights and liabilities, it then becomes necessary to determine, from 
 the instrument itself, just what those rights and liabilities are. 
 This is the purpose of Construction. In this construction the ob- 
 ject is to give effect to the intention of the parties as expressed in 
 the instrument; that is to say, the question is not : What may the 
 parties have meant and intended? but, What is the meaning of 
 the words which they have used ? No unexpressed intention can 
 be considered. 
 
 If the whole instrument, taken together, contains no ambigui- 
 ties or seeming inconsistencies, there is no room for interpreta- 
 tion ; but instruments of that degree of perfection are so rare, and 
 the courts are so often called upon to settle questions as to the real 
 intent of the parties expressed in written evidences of contracts, 
 that a large mass of rules of construction have, from time to time, 
 been developed, which are announced, with considerable positive- 
 ness, as forming an integral part of the Law of Contracts, and 
 which are followed, by the courts, with varying degrees of con- 
 sistency and certainty, as each case may seem to demand. 
 
 Rules Relating to Construction of Contracts as a Whole. — 
 (1) The intention is to be determined by a reference to the whole 
 instrument, rather than to any particular phrase, clause, or sen- 
 tence. 
 
 (2) To this end, the instrument must, if possible, be given such 
 a construction that every word or clause shall be effective ; that is, 
 a construction is to be adopted which will harmonize the various 
 parts of the instrument. This is, however, not always possible. 
 "Where there is a repugnance between a general and a particular 
 description in a deed, the latter will control ; although, whenever 
 it is possible, the real intent must be gathered from the whole de- 
 scription, including the general as well as the particular." 
 
 (3) Transactions evidenced by several writings: Another par- 
 ticular application of the general principle laid down is found in 
 the rule that ' ' two deeds, or writings, executed at the same time.
 
 620 AMERICAN ELEMENTARY LAW. 
 
 between the same parties, and in reference to the same subject 
 matter, are to be taken as parts of one contract and forming an 
 entire agreement." The same rule applies to separate writings 
 not executed at the same time, or not referring to the same trans- 
 action, where one is referred to by the other in such a manner as 
 to make it, expressly or impliedly, a part of that other. If such 
 reference is made for a particular purpose only, the connection 
 will be recognized for that purpose only. 
 
 (4) That construction is preferable which renders the contract 
 reasonable and equitable, rather than the reverse. 
 
 (5) The court, where it is necessary to arrive at the intent of 
 the parties will consider the circumstances surrounding them at 
 the time the contract was made ; but this is done merely to arrive 
 at the meaning of the words actually used in the written instru- 
 ment, not to add to or take away from those words. 
 
 (6) "Where the contract is, in itself, ambiguous, if the parties 
 have, by their actions under it, or under others like it, where there 
 has been a uniform and harmonious course of dealing between the 
 parties, construed the instrument in a particular way, effect will 
 be given to this construction. Evidence of such conduct, how- 
 ever, will not be admitted to vary the terms of a clear and plain 
 contract. 
 
 (7) In addition to the terms expressed in the contract, the law 
 will read into it certain terms, which are of such a nature that it 
 is to be presumed that the parties had them in mind and intended 
 that they should form part of the contract. Thus, it is usually 
 held that the parties must have contracted with reference to the 
 law in existence at the time the contract was made, so that its ob- 
 ligation becomes an implied term in the contract. 
 
 Rules Relating More Properly to a Construction of Specific 
 Words, Phrases or Clauses. — (1) The words of a contract are or- 
 dinarily to be given their plain and generally accepted meaning ; 
 not so, however, when such a meaning would render the contract 
 senseless, or where it is apparent that a different intent existed. 
 
 (2) If it clearly appears, from the remainder of the instru- 
 ment, that the parties used the words in an arbitrary and unusual 
 sense, effect will be given to that sense. 
 
 (3) Technical expression, that is, those which have a peculiar
 
 DIFFERENT KINDS OP CONTRACTS. 621 
 
 meaning in some art, trade, or profession, will be given their 
 technical meaning. 
 
 (4) Words which have, from the usage of the locality, or from 
 that of the trade, profession, or business to which the contract 
 relates, acquired a meaning different from that in common accep- 
 tation will be given the meaning sanctioned by the usage in the 
 minds of the parties. 
 
 (5) Where language can be construed in two senses, in one of 
 which the contract would be legal, in the other illegal, effect will 
 be given to the former construction. 
 
 (6) Where language can be construed in two senses, in one of 
 which the contract would be valid, in the other invalid, effect is 
 given to the former. 
 
 (7) Where language can be construed in two senses in one of 
 which the contract would be senseless or frivolous, though valid, 
 in the other effectual and operative, effect is given to the latter 
 construction. 
 
 (8) Restrictive words control general words referring to the 
 same thing, where the intent can not be gathered from the whole 
 instrument and the two expressions are hopelessly repugnant. 
 
 (9) Where the real intent of the parties can be gathered from 
 the instrument, obvious clerical and verbal mistakes can be cor- 
 rected, or even omitted words inserted, so as to effectuate intent 
 of parties. 
 
 (10) Words wholly inconsistent with the nature of the con- 
 tract, or repugnant to the expressed intent of the parties, may be 
 rejected. , 
 
 (11) Grammatical inaccuracies and incorrect spelling are im- 
 material, nor can punctuation control, where the meaning is other- 
 wise clear. 
 
 (12) In contracts, partly written and partly printed, the writ- 
 ten portion will control in case of inconsistency. 
 
 Discharge of Contracts. 
 
 Discharge of a contract may be effected in any one of five ways : 
 
 (1) By agreement. 
 
 (2) By performance. 
 
 (3) By impossibility of performance 
 
 (4) By operation of law. 
 
 (5) By breach.
 
 622 AMERICAN ELEMENTARY LAW. 
 
 Discharge by Agreement. 
 
 Since the obligation of contract arose, in the first instance, from 
 agreement of the parties to it, so it may be dissolved by their 
 agreement. 
 
 This agreement may take the form of either (1) Waiver, 
 (2) Substituted Contract, or (3) by some provision for discharge 
 in the original contract. 
 
 Discharge by Waiver. — By waiver, in this connection, is meant 
 mutual release from the contractual bond, or voluntary rescission 
 of the contract, in which the consideration for the promise of each 
 party is the promise of the other. 
 
 Where the contract has been performed on one side, a mere 
 agreement by which the party still bound is to be released is not 
 good, and will not be binding on the other party. Such an agree- 
 ment must be supported by consideration and have all the ele- 
 ments of an original valid contract. 
 
 At English Law, the negotiable instrument was not permitted 
 to be waived, as other contracts, but the American rule is differ- 
 ent. Such a contract may be waived as any other, but the instru- 
 ment must be delivered up. 
 
 Substituted Contract. — The parties to a contract may enter 
 into a new agreement between themselves on the same subject 
 matter, which will either expressly or impliedly discharge the ex- 
 isting contract. There must, in such cases, be a valid considera- 
 tion to support the mutual promise. 
 
 When such discharge is claimed by implication, the implication 
 must be plain, the terms of the new contract must be inconsistent 
 with those of the former. 
 
 The discharge may be my novation ; that is, by the agreed sub- 
 stitution of a new party in the place of one of the original ones, 
 the terms of the new contract remaining the same. To constitute 
 a novation, there must be mutual assent of the three parties upon 
 proper consideration, and an unqualified discharge of the person 
 originally bound. Distinguish such an agreement from one to 
 answer for the debt of another. 
 
 A postponement of performance for the convenience of one of 
 the parties does not amount to the substitution of a new agree- 
 ment which can discharge the contract.
 
 DIFFERENT KINDS OF CONTRACTS. 623 
 
 Discharge According to Provisions in the Contract. — The con- 
 tract itself may contain provisions for its discharge. Such pro- 
 visions may take the form of conditions subsequent, upon the oc- 
 currence of which the contract is to be discharged; a condition 
 precedent, upon the nonfulfillment of which the contract is to be 
 discharged, or the reservation of the right by one or both parties 
 to terminate the contract upon notice given, as in contracts of em- 
 ployment, and other continuing agreements. 
 
 Discharge by Performance. 
 
 A complete performance of the mutual stipulations and prom- 
 ises of a contract discharges the contract. 
 
 The obligation of one or the other party to the contract is fre- 
 quently a money liability, in which performance on his part will 
 take the form of payment. There are several rules to be noted as 
 to payment : 
 
 (1) A less sum can never pay a greater so as to discharge the 
 party so paying. There must, in such case, be additional con- 
 sideration. 
 
 (2) Payment by giving a negotiable instrument may discharge 
 the party so paying, absolutely or only conditionally. If it is 
 agreed between the parties that the instrument is accepted in ab- 
 solute payment, then the party giving it is discharged from the 
 former indebtedness. In the absence of such agreement, the pay- 
 ment and discharge are only conditional, depending upon whether 
 or not the instrument is honored at maturity. 
 
 Tender. — An attempted performance, frustrated by the other 
 party, is called a tender. Tender may or may not discharge the 
 party tendering, according to the circumstances. 
 
 Where one party is bound by the contract to deliver goods, if 
 he tenders the goods at the proper time and place to the other 
 party, or to one authorized by him to receive them, he is dis- 
 charged by this from the contract, if it is otherwise fully executed 
 on his side and is unexecuted on the other side, and refusal by 
 the other party to accept is a breach of the contract. If the other 
 party has executed, the tender will have the same effect only as 
 tender of money in payment of a debt. 
 
 Where one party is bound by the contract to pay money, tender 
 on his part and refusal on the part of the other does not discharge
 
 624 AMERICAN ELEMENTARY LAW. 
 
 the debt; but such tender, if properly made, does discharge him 
 from any further liability for interest, costs of suits, etc. 
 
 Tender of money must be made on the day on which the debt is 
 due, not before or after. It must be absolute and unconditional. 
 
 Tender must be kept up after having been made; that is, the 
 party must remain ready and willing to pay. 
 
 "A tender required by a contract will be waived by a party in 
 whose favor it was required, by acts or words on his part showing 
 that it would not be received. " 
 
 It has been held that, to constitute a good tender the precise 
 sum due must be offered. 
 
 Discharge by Impossibility of Performance. 
 
 There may be an impossibility, legal or physical, upon the face 
 of the contract, or there may be an impossibility due to the non- 
 existence, not known at the time to either party, of the subject 
 matter of the contract. The first case belongs properly to the 
 subject of Consideration; the second to that of Mutual Mistake. 
 In both cases the contract is void. 
 
 Impossibility of performance, however, may arise subsequently 
 to the formation of the contract, and, in some such cases, the con- 
 tract will be discharged. The general rule is that such impossi- 
 bility does not discharge the contract. 
 
 Exceptions : 
 
 (1) Legal impossibility, arising from a change in the law of the 
 land. 
 
 (2) Where the continued existence of a particular thing is nec- 
 essary to performance, its destruction, from no fault of either 
 party, operates to discharge the contract. 
 
 (3) Contracts for personal service are discharged by the death 
 of the promisor. 
 
 Discharge by Operation of Law. 
 
 Under certain circumstances, a contract will be discharged by 
 the operation of rules of law. 
 
 (1) Alteration of a written instrument or agreement: (a) The 
 alteration must be made in a material part, (b) It must be made 
 by one of the parties, or by one acting for him, without the con- 
 sent of the other party. 
 
 (2) Bankruptcy; Bankruptcy releases the debtor from contrac- 
 tual liabilities provable under the bankruptcy.
 
 DIFFERENT KINDS OF CONTRACTS. 625 
 
 Discharge by Breach. 
 
 Breach of the obligation of the contract always confers a right 
 of action upon the other party. Sometimes it also discharges the 
 other party from further performance. Breach may take the 
 form of: 
 
 (1) Renunciation by one of the parties, while the contract is 
 still executory, if unequivocal and absolute, constitutes a breach 
 of the contract, and at once discharges the other party, if he 
 choses. It is said that each party to a contract has not only the 
 right to performance when due, but also ' ' to maintenance of the 
 contractual relation up to that time." 
 
 (2) Impossibility of performance, created by one party before 
 performance is due, discharges the other party immediately from 
 the contract, and gives him an immediate right of action ; as where 
 A promises to marry B upon a certain date, and, before that date, 
 marries C, the contract is discharged by the impossibility created, 
 and B has an immediate cause of action. 
 
 (3) In continuous contracts the same is true of renunciation by 
 one party, or impossibility created by him, which is merely a spe- 
 cies of renunciation, in the course of performance; that is, at any 
 time before performance has become complete. 
 
 (4) Breach of contract by one party, at the time of perform- 
 ance due, may or may not discharge the other party : 
 
 ^a) A breach in any vital part of the contract, that is, any stip- 
 ulation which goes to the root of the contract so that its breach will 
 destroy the purpose of the contract — discharges the other party 
 from the contract. 
 
 (b) Breach of some trivial stipulation, while it gives ground 
 for an action for damages, will not discharge the other party from 
 performance. 
 
 (c) Breach may be waived by word or act and performance 
 continued, in which case the promisee will have his action for 
 damages, but will not be discharged. 
 
 (d) "Whether or not complete discharge follows breach de 
 pends, very often, upon whether or not the contract is entire or 
 severable. If it is entire, breach of a single material stipulation 
 will discharge the promisee. If it is severable, such is not the 
 case, and the promisee, while entitled to damages apportioned to 
 the breach, is not discharged from further performance. 
 
 40
 
 626 AMERICAN ELEMENTARY LAW. 
 
 (e) Whether or not discharge results from breach depends, 
 also, upon the character of the covenants in the contract. Cove- 
 nants may be: 
 
 Mutual and independent ; that is, two absolute executory prom- 
 ises to do, or to forbear. In this case, breach by one party of 
 his covenant does not discharge the other from performance of his. 
 
 Mutual and dependent; that is, two executory promises to do, 
 or forbear, each dependent on the other. The two covenants then 
 form concurrent conditions. Breach by either party will dis- 
 charge the other. 
 
 Not mutual, but one dependent upon the other ; that is, a cove- 
 nant on the one hand, dependent upon the prior performance of 
 the other, called a condition. 
 
 The condition may be precedent, or subsequent; and the non- 
 performance of the condition precedent or the occurrence of the 
 condition subsequent discharges the covenant depending on it. 
 There may be covenants of all these kinds in one contract, and it 
 is for this reason that the construction of stipulations, with refer- 
 ence to their breach and discharge, is often difficult. 
 
 A condition does not maintain an action for damages, it simply 
 discharges the contract. 
 
 The construction of the various mutual stipulations of a con- 
 tract to determine which are covenants and which conditions, and 
 the relation of these to each other, is for the court. The intention 
 of the parties will control, where it can be arrived at.
 
 INDEX. 
 
 A. 
 
 PAGE. 
 
 Abnormal Persona 6, 150 
 
 Acceptance 583 
 
 Accessories 522 
 
 Accidents 164, 165 
 
 Definition 8, 164 
 
 Actionable 8,164 
 
 Inevitable 8, 164 
 
 Direct and Proximate Cause as Applied in Cases of 165 
 
 Accomplices 522 
 
 Acquisition of Ownership, Methods of 356, 357 
 
 Actual Fraud 257 
 
 Adjective Law 132 
 
 Administration upon Estates 276, 277, 415 
 
 Admissions . . ., 496-498 
 
 Adoption of Children 289-291 
 
 Method of 290 
 
 Effect of 290 
 
 Agency (See Principal and Agent). 
 
 Of the Wife for Husband 168 
 
 May be Proved by Parol 486 
 
 Agent (See Principal and Agent). 
 
 Agreement (See Right to Contract, and Contract, Essentials of) .197-203 
 
 Definition of 10, 582 
 
 As Affecting Legal Rights and Duties 10-13 
 
 Elements of Enforceable 10 
 
 Basis of Liability for Conduct of Another 15 
 
 To be Responsible for Conduct of Another 171 
 
 As Creating, Modifying, or Destroying Legal Rights 227-241 
 
 Resulting in Contract 227-231 
 
 Not Resulting in Contract 231-239 
 
 Lacking Competent Parties 232-234 
 
 Lacking Consideration 234-236 
 
 Defective in Form 236-238 
 
 Lacking Legality of Purpose 238
 
 628 INDEX. 
 
 PAGE. 
 
 Basis of License 267-269 
 
 Lacking Consideration 267 
 
 Lacking Form 268 
 
 With Unlawful Purpose 268, 269 
 
 As to Use of Force Upon the Body 268, 269 
 
 Discharge of Contract by 622, 623 
 
 Ultra Vires .' 331 
 
 Air, Nuisances as to 560 
 
 Aliens, Contractual Capacity 585 
 
 Alienation of Affections of a Spouse 578 
 
 Allegata and Probata 498 
 
 Allegiance 148 
 
 Amendments to Pleadings 473 
 
 Appeal of Case 509 
 
 Appellate Courts, Trial in 509,510 
 
 Appointing Power of the President 57 
 
 Arraignment 528 
 
 Articles of Confederation 29, 86, 87 
 
 Artifice in the Law of Fraud 253 
 
 Assault 562 
 
 Assessment of Shareholders 344 
 
 Assignment of Rights 12 
 
 Under Contract 614-616 
 
 (See Operation of Contracts.) 
 
 Assumption of Risk by Servant 300 
 
 Attorney General, State 77 
 
 Attorneys at Law 450 
 
 Authority of Agent, When Must be Written 307 
 
 B. 
 
 Bailments 407-408 
 
 Barter 407 
 
 Battery 562 
 
 Best Evidence Rule 482 
 
 Bills, Veto by President 51 
 
 Bills and Notes, Consideration for 236 
 
 Bills of Exchange 613 
 
 Birth, as Effecting Citizenship 147 
 
 Body, The, Application of Force to as Affected by Motive 159-161 
 
 Security of 189-191 
 
 Protection by Criminal Law 190 
 
 Protection by Tort Law 190 
 
 License to Use Force Upon 268, 269 
 
 To Reasonable Extent 268
 
 INDEX. 629 
 
 PAGE. 
 
 To Unreasonable Extent 269 
 
 Injury to .* .- 564 
 
 Torts Injurious to 562,563 
 
 Assault and Battery 562 
 
 False Imprisonment 563 
 
 Malicious Prosecution 563 
 
 Exhibition In Evidence 488 
 
 Breach of Contract, Discharge by 625, 626 
 
 Buffington v. Day 115-121 
 
 Burden of Proof 475, 476 
 
 Business, Right to Carry on 204 
 
 Limitations upon , 204, 205 
 
 c. 
 
 Cabinet of the President 55, 56 
 
 Capital Stock 340-342 
 
 Care, Standard of 243,244,547 
 
 Case, Jurisdiction Over, How Acquired 461-468 
 
 Cases Involving a Federal Question, Jurisdiction of Supreme 
 
 Court Over 68,69 
 
 Causation, Legal 15 
 
 Cause, Direct 15 
 
 Remote 15 
 
 Remote and Proximate 174,175,544,553 
 
 In Negligence 551 
 
 Cause of Action, None in Behalf of Wrong Doer 12 
 
 When Arises in Behalf of Either Party 12 
 
 Certitude 16 
 
 Chancery Courts 82, 456-459 
 
 Character 665 
 
 Charge of Court 507 
 
 In Criminal Cases 528 
 
 Charges by Common Carriers 425, 426 
 
 Charter of Corporations (See Corporations) 334-340 
 
 Chattels 392 
 
 Check 613 
 
 Child (See Parent and Child). 
 
 Circuit Courts, Federal, Jurisdiction of 64-66 
 
 Circuit Court of Appeals, Federal, Jurisdiction of 66 
 
 Circumstantial Evidence 494 
 
 Sufficiency of 494 
 
 Citation 465-468 
 
 Requisites of 465 
 
 Service 465
 
 G30 INDEX. 
 
 PAGE. 
 
 By Publication • 465 
 
 Personal 465 
 
 Extraterritorial 465 
 
 On a Citizen 466 
 
 Cities 43-45 
 
 Governmental and Business Functions of 43 
 
 Suits By and Against 43 
 
 Liabilities of 43, 183, 184 
 
 Creation of 44 
 
 Governments of 44, 45 
 
 Torts by 540 
 
 Citizens 146 
 
 Corporations as 350 
 
 Jurisdiction Over 466-468 
 
 Extraterritorial Service Upon 466 
 
 Of the Different States, Rights in Other States 97 
 
 Citizenship of Married Woman 283 
 
 Civil Law 134 
 
 Sanctions in 438,439,442-446 
 
 Civil Rights 209-211 
 
 Equal Protection of the Law 209 
 
 Due Process of Law 210 
 
 Cloud Upon Title 574 
 
 Colonies, Original 29-31, 71, 73 
 
 Political Institutions In 29 
 
 Charters of as Written Constitutions 29 
 
 Declaration of Independence by 29 
 
 Adoption of State Constitutions by 29 
 
 Formation of Confederation by • 30 
 
 Formation of United States Government by ' 30 
 
 Common Carriers 419-434 
 
 Definition 419 
 
 Carrier of Passenger as 419 
 
 Route, Right to Designate 420 
 
 Line of Business, Right to Designate 420 
 
 Duties and Liabilities 420 
 
 Efficient Service 420,421 
 
 As to Premises 421 
 
 As to Equipment 421 
 
 As to Servants 421 
 
 Prompt Service 421 
 
 Safe Service 422 
 
 Care of Passengers 244, 422 
 
 Liability as to Freight 423 
 
 Insurer 423 
 
 Exceptions 423
 
 INDEX. 631 
 
 PAGE. 
 
 Discriminations by 423, 424 
 
 Right to Refuse Dangerous Passengers or Freight. ... 425 
 
 Charges by 425 
 
 Courtesy 426 
 
 Right to Change Legal Duties by Contract 426 
 
 Control by Federal and State Governments 427 
 
 Interstate Commerce 427, 428 
 
 State Commerce 427, 428 
 
 Congressional Action Concerning 428 
 
 State Action Concerning 428 
 
 Agreements to Carry Beyond Own Line 429, 430 
 
 Connecting Carriers 429 
 
 Common Law, Form of Action 240, 241 
 
 Effect on Doctrine of Quasi Contracts 240 
 
 Common Law 128, 133 
 
 Definition 128 
 
 Extent 128 
 
 Creation 128 
 
 As to Fraud 247, 248 
 
 Rules as to Knowledge of Falsity 247 
 
 Effects of Marriage Under 167 
 
 Divorce Under 285 
 
 Common Law Courts 82, 451-456 
 
 Historical Development 452-454 
 
 Magna Charta as Affecting 453 
 
 Nisi Prius 454 
 
 Forms of Action in 454-456 
 
 Common Law Crimes 512 
 
 None Under the Federal Law 512 
 
 Common Law Marriage >.... 279 
 
 Common Source of Title 402 
 
 Communications, Privileged 207, 208 
 
 Absolute 206 
 
 Conditional 207 
 
 Complaints 527 
 
 Comptroller, State 77 
 
 Concealment, as Fraud 254, 572 
 
 Conditions 610, 611 
 
 Conduct 7, 154-156, 166-173 
 
 Definition 7 
 
 Affirmative '.. -7, 154, 155, 156 
 
 Negative 7, 154, 155, 156 
 
 Laws' Regulation of 154, 155 
 
 When Unlawful 155, 156, 537 
 
 Legal Consequences of 174, 175, 544 
 
 Intended 544
 
 632 INDEX. 
 
 PAGE. 
 
 Natural and Probable 544 
 
 To Whose the Law Looks in Awarding Benefits and Affix- 
 ing Liability 166-173 
 
 Primary Range of Right and Liability 13, 166, 542 
 
 Secondary Range of Right and Liability 13-15, 166-173 
 
 Legal Identity 14,167 
 
 Substitution 14, 15, 168-170 
 
 Co-operation 14, 15, 170 
 
 Express Agreement 15,171 
 
 Non-assignability of Duty 15, 171-173 
 
 Ownership Not Itself Basis of Liability 173 
 
 Congress of the United States 49-53 
 
 Two Houses 49 
 
 Senate 49-51 
 
 House of Representatives 50, 51 
 
 Veto Power of President 49 
 
 Express Powers of Congress 32, 51-53 
 
 Implied Powers of Congress 99-109 
 
 Confederation, The 30, 86-88 
 
 Nature of 87 
 
 Confederations 26 
 
 Confession and Avoidance, Pleas in 471 
 
 Confessions 496-498 
 
 Connecting Carriers 429, 430 
 
 Agreements to Carry Beyond Own Line 429 
 
 Conquest as Method of Acquiring Property 358 
 
 Conscience, Freedom of 206 
 
 Contradictory Evidence 494 
 
 Consideration of Contract ( See Contracts ) 588-591 
 
 Agreements Lacking 234 
 
 Seals as Importing 235 
 
 In Negotiable Instruments 236 
 
 Of Written Contract May be Proved by Parol 486 
 
 Contract Law 135 
 
 Mental Condition in 161, 162 
 
 Contracts 11, 199, 203, 227-231, 582-626 
 
 Essentials of 11, 197-203 
 
 Fully Performed, Legal Effect of 11 
 
 Partially Performed, Legal Effect of 11 
 
 Defective Parties to 11 
 
 Defect in Form 11 
 
 Parties 199 
 
 Purpose 200, 201 
 
 Effect of Illegality of 200, 201 
 
 When Participated in by Both Parties 200 
 
 Known to Both Parties 200
 
 INDEX. 633 
 
 PAGE. 
 
 Known But Not Acquiesced In 200 
 
 Forbidden by Statute 200, 201 
 
 Consideration 201, 202, 588-591 
 
 Essential to Unexcuted Promise 201 
 
 Distinguished from Motive - . . . . 201 
 
 Seal as Importing 202 
 
 Under the Law Merchant 202 
 
 Elements of 227 
 
 Executory 228 
 
 Executed 228 
 
 Vested Rights Under 229 
 
 Express 229 
 
 Implied in Fact 230 
 
 Implied in Law 231 
 
 Definition of 582 
 
 Essentials of 583-609 
 
 Offer and Acceptance . '. 583, 584 
 
 Form of 583 
 
 Intent to Create Legal Relations 583 
 
 Must be Definite 584 
 
 Offer Must be Communicated 584 
 
 Effect of Acceptance on Offer 584 
 
 Acceptance, How Given 584 
 
 Acceptance Must be in Toto and Absolute 584 
 
 Parties to 584-588 
 
 Aliens : 585 
 
 Infants 585 
 
 Lunatics, Insane, and Drunkards 586 
 
 Married Women 587 
 
 Corporations 587, 588 
 
 Consideration 588-591 
 
 Necessity for 588 
 
 What is 589 
 
 Adequacy l 590 
 
 Must be Legal 590 
 
 Executed or Executory But Not Past 590 
 
 In Negotiable Instruments 591 
 
 Form 591-595 
 
 Under Seal 591 
 
 Simple Contract 591 
 
 Required to be in Writing 591-595 
 
 For Sale of Lands 592 
 
 By Executor or Administrator 593 
 
 To Answer for Debt of Another 593 
 
 Not to be Performed in a Year 594 
 
 Sales of Goods, Wares and Merchandise 694
 
 0^4 index. 
 
 PAGE. 
 
 What is Written Contract 595 
 
 Effect of Failure to Comply with Statutes 595 
 
 Assent, Genuineness of 596-609 
 
 Different Kinds 610-613 
 
 Covenants and Conditions 610 
 
 Classification of Contracts 611-613 
 
 Express and Implied 611 
 
 Entire and Severable 612 
 
 Joint, Several, and Joint and Several 612 
 
 Negotiable and Non-negotiable 612 
 
 Operation of 613-617 
 
 As Between Parties 613 
 
 Rights of Third Parties Under 613-615 
 
 Rights in Rem Under 614 
 
 Assignment of Rights Under 614-617 
 
 At Common Law 615 
 
 In Equity 615 
 
 Methods of 615 
 
 By Act of Parties 616 
 
 By Operation of Law 616 
 
 By Death 616 
 
 Effect of 616 
 
 Interpretation of 617-621 
 
 Rules of Evidence 617-619 
 
 Parol Contract 617 
 
 Written Contract 617 
 
 Existence of the Document 617 
 
 Parol Evidence as Affecting 618 
 
 As to Terms of Contract 618 
 
 As to Construction 619-621 
 
 Rules Governing 619 
 
 Of Words and Phrases 620 
 
 Discharge of 621-626 
 
 By Agreement 622 
 
 By Waiver 622 
 
 By Substituted Contract 622 
 
 By Terms of Original Agreement 623 
 
 By Performance 623 
 
 By Tender 623 
 
 By Impossibility of Performance 624 
 
 By Operation of Law 624 
 
 By Breach 625 
 
 Contract, Capacity Essential to Forming 161, 162 
 
 Contract, Infancy as Affecting 179 
 
 Contract by Insane Person 151
 
 INDEX. 635 
 
 PAGE. 
 
 Contract, Married Woman's Powers to 179-181 
 
 Contract, Charter of a Corporation as (See Corporations) 336-339 
 
 Contract, Remedy for Breach as Affected by Locality 224 
 
 Contracts Transferring Title 361 
 
 Contracts Against Liability for Negligence 549, 550 
 
 Contracts, Breaches of, Contrasted with Torts 555 
 
 Contracts, Inducing Breach of 578 
 
 Contracts, Changing Legal Duties of Common Carriers 426,427 
 
 Constitutions as Written Law 129-131 
 
 Construction of by the Courts 34-38 
 
 Constitutions ." 4 
 
 Creative Provisions 4 
 
 Perpetuative Provisions 4 
 
 Functional Provisions 4, 5 
 
 Restrictive Provisions 4, 5 
 
 Legislative Department 5 
 
 Judicial Department 5 
 
 Executive Department 5 
 
 Constitution of the United States 30-40 
 
 Preparation and Adoption ." 30 
 
 Purpose of 31 
 
 Supremacy of 31 
 
 General Nature of 32 
 
 Convention by Which Drafted 89 
 
 Ratification of 90 
 
 Organization of United States Government Under 90 
 
 Effect of on Non-ratifying States 90 
 
 Amendments to 91 
 
 Reserve Powers of the States Under 91 
 
 Separates the Powers of the State and Federal Govern- 
 ments 5, 91 
 
 History of 130 
 
 Construction of 5 
 
 Provisions Conferring Express Powers Upon Congress. . . . 51-53 
 Construction of the Clause Granting All Necessary and 
 
 Proper Powers . .* 106-109 
 
 Provisions Relating to Judicial Power 60-62 
 
 Express Limitations Upon the Power of the United States 
 
 Government 70 
 
 Guarantees to the Several States in 83, 84 
 
 Limitations on Powers of the States in 84 
 
 Guarantees as to Records in Judicial Proceedings 96 
 
 To the Citizens of Each State as to Rights in Other States 97
 
 636 INDEX. 
 
 PAGE. 
 
 As to Extradition Between the States 97 
 
 Forbidding Alliances or Treaties Among the Several States 97 
 
 Effect of on the States 71-73,100,117-121 
 
 Construed in McCulloch v. Md 101-115 
 
 Fifth and Fourteenth Amendments 211, 209 
 
 Rules of Construction of 5, 100, 101 
 
 Powers of Federal Government Enumerated in 101 
 
 Construction of Interstate Commerce Clause 99-101 
 
 Constitution of a State, Nature of 131 
 
 Constitutional Guaranties in Criminal Matters 629-532 
 
 In Constitution of the United States 529 
 
 In State Constitutions 530-532 
 
 Constitutional Guarantee, Freedom of Speech 205,206 
 
 Constitutional Convention 88-90 
 
 Constitutional Law 129-131 
 
 Construction of Contracts 619-621 
 
 As a Whole 619 
 
 Words and Phrases 620 
 
 Constructive Fraud 257 
 
 Contribution 14 
 
 Among Joint Tort Feasors 545, 546 
 
 Among Parties to Fraud 262, 263 
 
 Contributory Negligence 552, 553 
 
 Definition 552 
 
 As a Defense 550-552 
 
 Sudden Peril 553 
 
 Covenants 626 
 
 Convention Which Drafted the Constitution of the United States 88-90 
 
 Conversion, Transfer of Title by Suit for 368 
 
 Conveyances 399, 400 
 
 Of Land, Form of 399 
 
 Registration of 399 
 
 Innocent Purchasers 400 
 
 Conveyance of Property 204 
 
 Conveyances of Land 361 
 
 By Agent 307 
 
 Conveyance to Defraud Creditors 239 
 
 Corporeal Things 7 
 
 Co-operation as Involved In Joint Actors 312 
 
 As Between Employer and Independent Contractor 313 
 
 As Involved In Partnership 313 
 
 Copyrights 410 
 
 Corporate Funds 345, 346 
 
 Corporations 317-350 
 
 General Definition 317
 
 INDEX. 637 
 
 PAGE. 
 
 Public, Definition 317 
 
 Private, Definitions 317, 318 
 
 Is Legal Entity 317-319 
 
 As Agency of Incorporators 319 
 
 As Combination of Individuals 319-321 
 
 Essentials of 321 
 
 Powers of 321 
 
 Essentials, General Discussion 322-326 
 
 Merger of Members 322 
 
 Capacity for Continued Existence 322,323 
 
 Name 323 
 
 Power to Sue and be Sued 323 
 
 To Have a Seal 323 
 
 To Make By-Laws 323 
 
 Franchises 324 
 
 Immunities 324 
 
 Shares of Stock 325 
 
 Non-liability of Members 325 
 
 Public Corporations 326 
 
 Quasi Public Corporations 326 
 
 Private Corporations 327-350 
 
 Created by the States 327 
 
 Created by the Federal Government 327 
 
 Stock Corporations 327-350 
 
 How Formed 327, 328 
 
 At Common Law 328 
 
 By Statute 329 
 
 Powers of 330, 331 
 
 Involved in Corporate Existence 330 
 
 Expressed in Charter 330,331 
 
 Implied from Charter 330,331 
 
 Ultra Vires 331-333 
 
 As to Agreements 331 
 
 As to Torts 332, 333 
 
 Charter 333, 334 
 
 Special Act as 334 
 
 Under Enabling Act 334-336 
 
 As a Contract 336-339 
 
 As Between the State and the Body of Incorpo- 
 rators 336-338 
 
 As Between Individual Incorporator and Body of 
 
 Incorporators 338 
 
 Legal Entity Not a Party to 338, 339 
 
 As the Law of Being to the Corporate Entity 339 
 
 Capital Stock 340-342
 
 G38 INDEX. 
 
 PAOK. 
 
 What is 340 
 
 Shares of 340 
 
 How Acquired 340 
 
 Subscriptions for 341 
 
 Membership 342-344 
 
 How Acquired 343 
 
 Rights of 343 
 
 Liabilities of 344 
 
 Internal Government 344 
 
 Corporate Funds 345 
 
 Trust Theory 345 
 
 Full Ownership Theory 345 
 
 Corporations De Facto 347, 348 
 
 Essentials to 347, 348 
 
 Rights and Liabilities of 348 
 
 Against and to Private Persons 348 
 
 As to State 348 
 
 Foreign and Domestic 348-350 
 
 Definitions 348, 349 
 
 As Citizens 349 
 
 Comity as to Foreign Corporations 349 
 
 State's Power to Exclude Foreign Corporations 349,350 
 
 Corporations, Contracts by 232, 587 
 
 Powers of 587 
 
 Ultra Vires 588 
 
 Abandonment of Corporate Enterprise 588 
 
 Corporations, Torts by 541 
 
 Corporeal Things 152 
 
 Corroborative Evidence '. 494 
 
 Counties, Nature and Duties of 41-43 
 
 Ofllcers of 41 
 
 Business Matters of 41 
 
 How Far Representatives of Sovereignty 41,42 
 
 Governmental Functions of 42 
 
 Business Functions of 42 
 
 Suits By and Against 42 
 
 Torts by 42 
 
 Creation of 42 
 
 Subdivisions of 42 
 
 Liabilities of 183 
 
 Courts, Purpose of 16 
 
 Courts 59, 60, 447-459 
 
 Definition 447 
 
 Judicial Function 447 
 
 Judges 44S
 
 INDEX. f)39 
 
 PAGE 
 
 Jury - 449 
 
 Indictment 449 
 
 Clerks 450 
 
 Sheriffs 450 
 
 Attorneys at Law 450 
 
 Different Kinds of 451-460 
 
 Common Law 82, 451-456 
 
 Forms of Action in 454-456 
 
 Courts of Equity 82, 456-460 
 
 Origin 456 
 
 Jurisdiction 457 
 
 Proceedings 457, 458 
 
 Blended Jurisdiction 450, 459, 460 
 
 Punishments Inflicted by 441 
 
 Remedies to Private Parties 221-224, 442-446 
 
 Preventive , 443 
 
 Redressive 443 
 
 Damages 443-446 
 
 Courts, Power to Grant Divorces 284-287 
 
 As Between Bona Fide Residents of the State 284 
 
 As Between Resident Plaintiff and Non-resident Defend- 
 ant 284-287 
 
 On Personal Service, Within the State 284 
 
 On Voluntary Appearance 284 
 
 On Extraterritorial Service 284-287 
 
 By Weight of Authority 284-287 
 
 Under Haddock v. Haddock 285 
 
 Courts, Trials in 507-509 
 
 Courts, Appellate, Trial in 509 
 
 Courts, Duty and Power to Determine Constitutionality of Stat- 
 utes 34-38 
 
 Covenants t 610, 611 
 
 Coverture 179-181 
 
 Effect of Upon Contract 232 
 
 Credibility of Witnesses 502 
 
 Matters Involved in 502 
 
 Creditors, Conveyances in Fraud of 239 
 
 Crimes, Classification of 612 
 
 Crime, Mental Conditions as Affecting 8, 158 
 
 Liability of Infants for 178 
 
 By Insane Persons 151 
 
 Married Woman's Liability for 180 
 
 Of one Spouse as Affecting the Other 283 
 
 Effected by Locality 222 
 
 Contrasted with Torts 535
 
 040 INDEX. 
 
 PAGE. 
 
 Criminal Law 134, 441, 511-532 
 
 General Discussion 511 
 
 Common Law Crimes 512 
 
 None Under the Federal Law 512 
 
 Crimes, Classification of 512 
 
 Treason 512 
 
 Felony 513 
 
 Misdemeanor 513 
 
 Defining Crimes, a Legislative Function 514 
 
 Mental Capacity, Motive and Intent in Crime 515-520 
 
 Motive 515-518 
 
 Intent 515-518 
 
 Ignorance 515, 519 
 
 Evidence, Mental Condition 519 
 
 Ignorance and Mistake 519 
 
 Duress 520 
 
 Parties Who May Commit 521-523 
 
 Insane Persons 521 
 
 Infants 521 
 
 Married Women 521 
 
 Principals 522 
 
 Accomplices . 522 
 
 Accessories 522 
 
 Innocence, Presumption of 521 
 
 Does Not Apply to Mental Incapacity 522 
 
 Punishments 523, 524 
 
 Common Law 523 
 
 Statutory 523 
 
 Assessing 524 
 
 Classification of Offenses . . 524 
 
 Procedure in Criminal Courts 525-529 
 
 Examining Trials 525 
 
 Trials Upon the Merits 525 
 
 Juries 526 
 
 Pleadings by the State 526 
 
 Grand Juries 526 
 
 Presentments 526 
 
 Indictment 527 
 
 Information 527 
 
 Complaints 527 
 
 Pleadings by the Defendant 527 
 
 Arraignment 528 
 
 Evidence 528 
 
 Charge and Verdict 528 
 
 Judgments 528
 
 INDEX. 641 
 
 PAGE. 
 
 Constitutional Guaranties In Criminal Matters 529-532 
 
 In Constitution of the United States 529 
 
 In State Constitutions 530 
 
 Criminal Prosecution, as Affecting Liability for Torts 536 
 
 Cumulative Evidence 495 
 
 D. 
 
 Damage 443-446 
 
 Definition / 443 
 
 Measurement 443-446 
 
 Injury to Things 443-445 
 
 Injury to Rights Against Particular Persons 445 
 
 Violation of Personal Rights 445, 446 
 
 For Torts 540, 541, 543 
 
 Actual 540, 543 
 
 Exemplary 543 
 
 As Against Abnormal Persons 541 
 
 Damages 654 
 
 Injury to Property 554 
 
 To the Body 189,191,554 
 
 Mental Suffering as 192, 554 
 
 For Continuing Nuisances 554 
 
 In Defamation 567 
 
 For Breach of Contracts of Agency 310, 311 
 
 Liability of Joint-Actors 312 
 
 Evil Motive as Affecting 543 
 
 Defamation 206-207, 564-568 
 
 Character 206 
 
 Reputation 206 
 
 Right to Reputation, Extent of 207 
 
 Truth as a Defense Against Defamation 207 
 
 Privileged Communications 207 
 
 Absolute , 207, 208 
 
 Conditional 207, 208 
 
 Definition 564 
 
 Publication 564 
 
 Nature of the Idea Conveyed 564 
 
 Interpretation of the Words 564 
 
 Falsity of Statement 565 
 
 Must Concern Another 566 
 
 Without Legal Excuse 566 
 
 Malice Not Necessary 566 
 
 Libel and Slander, Distinction Between 566 
 
 Absolute Privilege 566 
 
 41
 
 642 INDEX. 
 
 PAGE. 
 
 Conditional Privilege 567 
 
 Damages 567 
 
 Statements Actionable Per Se 567 
 
 Not Actionable Per Se 568 
 
 Death 274-277 
 
 Legal Effects of 275-277 
 
 Of Owner, Effect on Property Rights 413-415 
 
 Injuries Resulting in 219, 579-581 
 
 Deed, When May be Shown to be Mortgage 487 
 
 Debts of Deceased Person 276,277 
 
 Deceit ( See Fraud) 245-263, 570 
 
 Deceive, Intent to in Fraud 245 
 
 Deception as to Law 163 
 
 Declaration of Independence 29, 85, 86 
 
 De Facto Corporations 347, 348 
 
 General Doctrines 347 
 
 Definition 347 
 
 Essentials 348 
 
 Rights and Liabilities as to Private Persons 348 
 
 Rights and Liabilities as to State 348 
 
 Defenses, Number of 473 
 
 Defining Crimes, a Legislative Function 514 
 
 Delirium Tremens 152, 177 
 
 Demurrers 471 
 
 Denizens 148 
 
 Depositions 478 
 
 Design 157 
 
 Divine Law 142 
 
 Dilatory Pleas 471 
 
 Direct and Proximate Cause in Cases of Accidents 165 
 
 Direct Evidence 494 
 
 Directors of Corporation 344 
 
 Disaffirmance of Contracts by Infants 585 
 
 Disclosure, When a Duty 255, 256 
 
 Discharge of Contracts (See Contracts, Discharge of) 621-626 
 
 Discovery as Method of Acquiring Property 357 
 
 Discrimination by Common Carriers 423-425 
 
 Disposition of Property 204 
 
 Power of as Element of Ownership 356 
 
 District Courts, Federal, Jurisdiction of 64 
 
 Districts, Political Subdivisions Known as 40 
 
 Dividends, Definitions 343, 344 
 
 Divorce 284-287 
 
 Can Only be Granted by the State 234 
 
 Two Kinds of 384
 
 INDEX. 643 
 
 PAGE. 
 
 Regulated by Statute 284 
 
 Granted by Decree of Court .284-287 
 
 Jurisdiction Over the Parties in Suits for 284-287 
 
 As to Non-resident Parties 284, 285 
 
 Haddock v. Haddock, Possible Results of 285, 286 
 
 General Rules as to 284, 287 
 
 Domestic Relations 278-292 
 
 Marriage and Family 278-283 
 
 Common Law Marriage 279 
 
 Statutes Regulating 279 
 
 Competency of Parties 281 
 
 Effects of 281 
 
 Is a Status 282 
 
 Definition of Family 282 
 
 Liabilities of One Spouse for Conduct of the Other. ... 283 
 
 Domicile of the Wife 283 
 
 As Affecting Divorce Proceedings 284-287 
 
 Drunkards, Contracts of 586 
 
 Drunken Persons 152 
 
 Drunkenness 176 
 
 Delirium Tremens 177 
 
 As Affecting Crime 521 
 
 Duress 152, 177, 601, 602 
 
 By Imprisonment 602 
 
 Per Minas 602 
 
 Effect in Criminal Law 177, 520 
 
 In Tort Law 177 
 
 In Contract Law 177, 197, 602 
 
 Duties, Legal 13-15 
 
 Not Assignable 13 
 
 Delegation of Performance 13 
 
 Duties, Conduct Violative of, Unlawful 7 
 
 Duty, Legal, Definition 9, 144 
 
 Mandatory Nature of 159 
 
 Non-assignable at Law 15, 171-173 
 
 In Criminal, Tort and Contract Law, How Fixed 10 
 
 Creation, Modification and Termination of 10 
 
 Agreement as Affecting 10 
 
 Failure of, Necessary to Negligence 551, 552 
 
 When Disclosure is 255, 256 
 
 As Between Principal and Agent 311 
 
 Dying Declarations 496
 
 644 INDEX. 
 
 E. 
 
 PAGE. 
 
 Easements 376, 381-383 
 
 Definitions j 381 
 
 In Gross 382 
 
 Appurtenant 382 
 
 Rights of Way as 383 
 
 Injuries to 674 
 
 Ecclesiastical Law 136 
 
 Education, Public, Department of 77 
 
 Elective Franchise 212 
 
 Eminent Domain 23 
 
 Transfer of Title Under 365, 366 
 
 By the Federal Government 365 
 
 By State Government 365 
 
 What is a Public Use 366 
 
 Power of in the United States 93, 12i; 122 
 
 Employer and Independent Contractor (See Independent Con- 
 tractor) 312 
 
 Entire Contracts 612 
 
 Entity, Legal, Partnership is Not 314 
 
 Equitable Misrepresentation 258, 571 
 
 Estate 153 
 
 Estates 386-391 
 
 Fee Simple 386 
 
 Fee Tail 386 
 
 Freehold 386 
 
 Leasehold 387 
 
 Reversions 387 
 
 Remainders 387 
 
 Mortgages 3S8 
 
 Deeds of Trust 389 
 
 By Courtesy .' 389 
 
 Dower 390 
 
 In Common 390 
 
 Coparcenary 390 
 
 Joint Tenancy 390 
 
 Equity 134, 135 
 
 Equity, Conception of Fraud 248-250 
 
 Misrepresentation in 249 
 
 Equity, Courts of 82,456-459 
 
 Escheat 366 
 
 Lands of Corporations 367 
 
 Lands of Aliens 367 
 
 Estates of Deceased Persons 274-277 
 
 Administration of 276,277
 
 INDEX. 645 
 
 PAGE. 
 
 Estoppel 11. 264, 265 
 
 By Deed 264 
 
 In Pais 264,265 
 
 Elements of 265 
 
 Agency by 308, 309 
 
 Pleading • 472 
 
 Evidence 475-506 
 
 Who Must Prove 475-477 
 
 Burden of Proof 475-477 
 
 Necessity of Introducing Further Testimony 475-477 
 
 What Must be Proven 477 
 
 Substance of the Issue 477 
 
 Means of Proof 477 
 
 Witnesses 477-479 
 
 Competency 477 
 
 Swearing 478 
 
 Oral Examinations 478 
 
 Depositions 478 
 
 Written Instruments 479-488 
 
 Classification of 479-481 
 
 Genuineness, How Proved 481 
 
 Best Evidence Rule • • • • 482 
 
 Relaxation of Rules 482-485 
 
 Exceptions to Rule 486-488 
 
 Demonstrative or Real 483-489 
 
 Nature of Matters Which May be Introduced 490, 491 
 
 Facts 490 
 
 Opinions 490 
 
 Expert Witnesses 490 
 
 Classifications of 491-495 
 
 Original and Hearsay 492 » 493 
 
 Primary and Secondary 49 3. 494 
 
 Direct and Circumstantial 494 
 
 Contradictory and Corroborative 494 
 
 Independent and Cumulative 495 
 
 Res Gestae 495 
 
 Dying Declarations 496 
 
 Admissions 496-498 
 
 Confessions 496-498 
 
 Relevancy 498-500 
 
 Definition of 498 
 
 Tests of , 49 M" 
 
 Examples of 4 " 
 
 Functions of Judge and Jury as to 500-605 
 
 In Common Law Courts 500-505
 
 646 INDEX. 
 
 PAGE. 
 
 Chancery Courts 501 
 
 Admission of Testimony for the Judge 501 
 
 Weight for the Jury 502 
 
 Credibility of Witnesses 502 
 
 Weight of Evidence 502 
 
 Elements of 502-505 
 
 When Proof is Sufficient 505, 506 
 
 In Criminal Law 505 
 
 In Civil Law 506 
 
 Evidence in Criminal Cases 528 
 
 Evidence, Written Contracts as 617, 618 
 
 Parol Evidence Regarding 618 
 
 Evil Motive in Law of Torts 159-160 
 
 Examination of Witnesses 478 
 
 Examining Trials 525 
 
 Executed Contracts 228 
 
 Executive Power 22 
 
 Executive Department of the States 76-78 
 
 Governor 76 
 
 Lieutenant Governor 76 
 
 Heads of Executive Departments 76-78 
 
 Department of State 76 
 
 Treasury 77 
 
 Public Accounts 77 
 
 Department of Justice 77 
 
 Public Education 77 
 
 Insurance 77 
 
 Land Department 77 
 
 Executive Officers, Minor 78 
 
 Executors and Administrators, Contracts by Under the Statute 
 
 of Frauds 593 
 
 Executory Contracts 228 
 
 Exemplary Damages ' 543 
 
 Ex Post Facto Law 137 
 
 Expert Witnesses 490 
 
 Express Contracts 229, 611 
 
 Express Powers of Congress 51-53 
 
 Extradition Between States 97 
 
 Extraordinary Governmental Agencies 82, 83 
 
 Extraterritorial Service 466-468 
 
 How Obtained 465, 466 
 
 Effect as to Citizens .466, 467 
 
 Effect as to Non-resident, Non-citizen 466, 467
 
 INDEX. 647 
 F. 
 
 PAGE. 
 
 Pact, Mistake of 12 
 
 Facts, Distinction Between and Opinion in the Law of Fraud. . . . 251 
 
 As Evidence 490 
 
 False Imprisonment 562 
 
 Family (See Marriage and Family). 
 
 Definition of 7, 282 
 
 Federal Criminal Law 612 
 
 Federal Government (See United States, Government of). 
 
 Federal Judicial System 63-69 
 
 District Courts 64 
 
 Circuit Courts 64-66 
 
 Circuit Court of Appeals 66 
 
 Supreme Court 67-69 
 
 Federal Practice 69 
 
 Federal Question, Cases Involving 68, 69 
 
 Federal States 27, 28 
 
 Fellow Servants 297-299 
 
 Felony 513 
 
 Fences 395 
 
 Fictions, Legal 17 
 
 Fighting, Injuries Received in 269 
 
 Fire, Right to Enter Land to Put Out 394 
 
 Firm Debts and Assets 315 
 
 Fixedness , . 16 
 
 Fixtures 381 
 
 When Part of the Land 380 
 
 Trade Fixtures 381 
 
 Attached by Trespasser 381 
 
 Force, Use of on the Body 191, 268 
 
 Foreign Corporations 348-350 
 
 Definition 349 
 
 As Citizens 349 
 
 Comity, as to 349 
 
 State's Right of Exclusion 349, 350 
 
 Rights Under Interstate Commerce Clause 350 
 
 Jurisdiction of Federal Courts Over 350 
 
 Foreign Nations, Intercourse With 58 
 
 Forfeiture 367 
 
 Formation of the Government of United States 88-90 
 
 Drafting the Constitution 89 
 
 Mode of Adopting the Constitution 89, 90 
 
 Organization of Government Under 90 
 
 Form as Essential to Agreement 202, 236-238 
 
 Forms of Action at Common Law 455, 456
 
 648 INDEX. 
 
 PAGE. 
 
 Franchise, Definition of 324 
 
 Fourteenth Amendment Constitution of the U. S 48, 49 
 
 Fraud 12, 197, 245-263, 569-573, 59S-601 
 
 General Conception of 12, 245, 246 
 
 Legal Conception of 246-251 
 
 Common Law 247, 248 
 
 Equitable 248-250 
 
 Per Se 250 
 
 Facts 251 
 
 Past or Present 251 
 
 Materiality 252 
 
 Means 253, 256 
 
 Misrepresentation 254 
 
 Concealment 254 
 
 Non-disclosure 255, 256 
 
 Injury to the Deceived 256 
 
 Parties Affected by 257 
 
 Classifications of 257-261 
 
 Actual 257 
 
 Constructive 257 
 
 Per Se 257 
 
 Deceit 257 
 
 Equitable Misrepresentation 258 
 
 In Inducement 258 
 
 In Esse Contractus 258-261 
 
 Remedies for 261 
 
 In Inducement 261 
 
 In Esse Contractus 261 
 
 Upon Persons Not Parties to the Transaction 262 
 
 Effects Upon Legal Rights 262, 263 
 
 As a Tort 569-573 
 
 Deceit at Common Law 570 
 
 Misrepresentation in Equity 570 
 
 Elements of 570 
 
 Voluntary Statements as 571 
 
 Concealment as 572 
 
 Nondisclosure as 572 
 
 Remedy for 572, 573 
 
 As Affecting Agreement 197, 598-601 
 
 Elements of 599-601 
 
 Representation 599 
 
 Falsity 599 
 
 Fact 599 
 
 Materiality ; 600 
 
 Knowledge of Falsity 600
 
 INDEX. 649 
 
 PAGE. 
 
 Intent to Influence 601 
 
 Deception , 601 
 
 Action by the Deceived 601 
 
 Fraud In Inducement 258, 259 
 
 Fraud in Esse Contractus 260,261 
 
 Freedom of Action 194-196 
 
 Extent and Nature of 194 
 
 Limitations on 194, 195 
 
 Habeas Corpus to Protect 195 
 
 Bill of Rights Guaranteeing 195 
 
 Freedom of Speech 205 
 
 Funds, Corporate 345, 346 
 
 Freight, Liability of Common Carrier for 423 
 
 G. 
 
 Games, Involving the Use of Force, Right to Engage In 268, 269 
 
 General Ownership 9, 215, 216 
 
 Limitations on 216 
 
 Genuineness of Assent 596-609 
 
 Mistake 596-598 
 
 Of Law 596 
 
 Of Fact 597 
 
 Misrepresentation and Fraud 598-601 
 
 Elements of 599-601 
 
 Representation 599 
 
 Falsity 599 
 
 Fact 599 
 
 Materiality ' 600 
 
 Knowledge of Falsity 600 
 
 Intent to Influence 601 
 
 Deception 601 
 
 Action by the Deceived 601 
 
 Genuineness of Written Instrument Must be Proved 481 
 
 Gibbons v. Ogden 99-101 
 
 Gifts 234, 407 
 
 As Affecting Title 361 
 
 Good Will 411 
 
 Government, General Discussion 20-24 
 
 Creation of 4 
 
 Definition 4, 20 
 
 Purposes of 20, 139, 140 
 
 Three Departments of 22 
 
 Raising Revenue by 23 
 
 Eminent Domain 23
 
 650 INDEX. 
 
 PAGE. 
 
 Police Power 23,24 
 
 Administration of 6 
 
 Relations to the Individual 6 
 
 Governments, Separation Between State and Federal 5 
 
 Powers of Are Trusts 5 
 
 Government of the United States 5,28-32,88-91,92-96,279,530 
 
 Organization of 28-32 
 
 Suits Against 530 
 
 No Jurisdiction Over Marriage and Divorce 279 
 
 Governmental Agencies, Extraordinary 82,83 
 
 Legal Liabilities of 181-187 
 
 Remedies Through 221-224 
 
 Governmental Control Over Public Utilities 418, 419 
 
 Governor 75, 76 
 
 Grand Juries 525, 526 
 
 Gross Negligence 243 
 
 Guarantees in the Federal Constitution to the Several States . . 83, 84 
 Guardian and Ward 291,292 
 
 H. 
 
 Habeas Corpus 195 
 
 Haddock v. Haddock as Affecting Extraterritorial Service 468 
 
 Haddock v. Haddock, Probable Effects of in Divorce Proceed- 
 ings 285, 286 
 
 Hearsay Evidence 492, 493 
 
 What is 492 
 
 Objections to 493 
 
 Generally Not Admissible 493 
 
 Hereditaments 378 
 
 Homicide 191 
 
 Crime at Common Law 191 
 
 Not a Tort at Common Law 191 
 
 Lord Campbell's Act 191 
 
 Homicide as Affected by Intent 517 
 
 Homicide as a Tort 579 
 
 House of Representatives of the United States 60, 51 
 
 House of Representatives, Election of President by 54 
 
 Human Law as Expressive of Moral Ideas 140-143 
 
 Husband and Wife 7. 179-181, 653 
 
 Husband and Wife, Legal Identity of 167 
 
 Husband and Wife, Liabilities of Each for the Conduct of the 
 
 Other 283 
 
 Husband and Wife, Rights and Duties Between 281-284 
 
 Husband, Alienation of Wife's Affections 578 
 
 Husband Liable for Tort of Wife 642
 
 INDEX. 651 
 
 I. 
 
 PAGE. 
 
 Identity 14 
 
 Ignorance in Criminal Law 12, 153, 515-520 
 
 Ignorance and Mistake in Criminal Law 519, 520 
 
 Illegality of Purpose as Affecting Agreement 200, 201 
 
 Illegitimate Children 289 
 
 At Common Law 289 
 
 Immunities 324 
 
 Implications in Law 272 
 
 In Fact 273 
 
 Implied Contracts 230, 611 
 
 In Fact 230 
 
 In Law 231 
 
 Implied Powers of the United States Government 101-109 
 
 Impossibility of Performance as Discharge of Contract 624 
 
 Imputed Negligence 553 
 
 Incorporeal Things 76, 152, 153, 376, 408-413 
 
 Incorporeal Personal Property 408-413 
 
 Choses in Action 409 
 
 Patents 409 
 
 Copyrights 410 
 
 Good Will 411 
 
 Trade Marks 411-413 
 
 Choses in Action 409 
 
 Definition 409 
 
 Assignability 409 
 
 Torts Against 577 
 
 Increase, Title to Follows That of the Thing Producing 360 
 
 Indemnity 14, 262-263, 545, 546 
 
 Among Parties to Fraud 262, 263 
 
 And Contribution Among Tort Feasors 545,546 
 
 Independent Agency .' 15 
 
 Independent Contractor 294, 312, 313, 542 
 
 Liabilities of 313 
 
 Liability of Employer for Conduct of 313 
 
 Distinguished from Servant 294 
 
 Torts by 542 
 
 Independent Evidence 495 
 
 Indictment 449, 527 
 
 Inducing Breach of Contracts 578 
 
 Infancy 177-179 
 
 Who Are Infants 177 
 
 Effect in Criminal Law 177, 521 
 
 In Tort Law 178,541 
 
 In Contract Law 179,232,585,586
 
 652 INDEX. 
 
 PAGE. 
 
 Infants, as Principals 305,306 
 
 As Agents 305,306 
 
 Infants, Contractual Capacity 585, 586 
 
 Avoidance by 585, 586 
 
 For Necessaries 586 
 
 Crimes by 521 
 
 Torts by 541 
 
 Influence, Intent to in Fraud 245, 246 
 
 Inheritance 276, 364, 414 
 
 Information, Prosecution by 527 
 
 Injury as an Element of Fraud 256 
 
 In Nuisance 557-559 
 
 Injuries Resulting in Death 219, 579-581 
 
 Innocence, Presumption of 505, 521 
 
 Does Not Apply to Mental Incapacity 522 
 
 Innocent Purchaser 400 
 
 What Constitutes 400 
 
 Inquiry, Putting on 273 
 
 Insane Persons 150, 151 
 
 Criminal Liability of 151, 521 
 
 Agreements by 151, 586 
 
 Torts by 151, 540 
 
 Restraint of 151 
 
 Insanity 150, 151, 176, 281, 521 
 
 Insurance, Department of, State 77 
 
 Intent in Criminal Law 515-520 
 
 Intent In the Law of Fraud 246-251 
 
 International Law 125 
 
 Interstate Carriage 427, 428 
 
 Interstate Commerce Clause 99-101 
 
 Intervening Agency In Legal Cause 174, 551 
 
 Issues 463, 470, 477 
 
 Methods of Presenting and Joining 470 
 
 Substance of Must be Proven 477 
 
 •* 
 
 J. 
 
 Joint-actors 312, 542, 543 
 
 Extent of Liability of Each for Conduct of the Other .... 312 
 
 Contribution Between 312 
 
 Evil Motive of 543 
 
 Liability for Torts 542 
 
 Joint and Several Contracts 612 
 
 Joint Contracts ' 612 
 
 Joint Stock Companies, Torts by 541
 
 INDEX. 653 
 
 PAGE. 
 
 Joint Tort Feasors, Liability of 545-553 
 
 Extent of 545 
 
 Joint and Several 545 
 
 Judgment Against 545 
 
 Satisfaction of 545 
 
 Judge 448 
 
 Duties as to Evidence 500 
 
 Judgment 368, 508, 509, 510, 528 
 
 Revision of 508, 509 
 
 Transfer of Title by 368 
 
 Enforcement of 510 
 
 In Criminal Cases 528 
 
 Judicial Department, State Governments 78-82 
 
 Judicial Power of States 78 
 
 Matters Over Which Jurisdiction of Federal Courts is Ex- 
 clusive 79 
 
 Concurrent Jurisdiction of State and Federal Courts .... 79, 80 
 
 Exclusive Jurisdiction of State Courts 80 
 
 State Judicial Systems 80-82 
 
 Judicial Department of the United States Government 59-69 
 
 Judicial Function 59, 60, 447 
 
 Judicial Power 22 
 
 Of the United States Government 60-63 
 
 Of State and Federal Governments Largely Concurrent. . 94 
 
 Judicial System of the United States (See Federal Judicial Sys- 
 tem). 
 
 Jurisdiction 463-468 
 
 Necessity for 463 
 
 Potential 463 
 
 Active 463 
 
 In Proceedings in Personam 464 
 
 In Rem 464 
 
 Quasi In Rem 464 
 
 Active 465-468 
 
 How Acquired Over Persons 465-468 
 
 Voluntary Submission 465 
 
 Citation 465-468 
 
 Jurisdiction of a Court 59, 60 
 
 Original 60 
 
 Appellate 60 
 
 Exclusive 60 
 
 Concurrent 60 
 
 Of a Case, How Acquired 461-468 
 
 Parties 461 
 
 Things 462
 
 654 INDEX. 
 
 PAGE. 
 
 Subject Matter 462 
 
 Issues 463 
 
 Jurisdiction, What is 463 
 
 Proceedings, Kinds of 464 
 
 Potential 464 
 
 Active 465-468 
 
 Jurisdiction of the Federal Courts 64-69 
 
 Jurisdiction of State and Federal Courts Compared 79, 80 
 
 Exclusive Jurisdiction of Federal Courts 79 
 
 Concurrent Jurisdiction of State and Federal Courts 79, 80 
 
 Jury 449, 450, 501-503, 507, 525, 526 
 
 Grand 449 
 
 Petit 449, 450 
 
 Duties as to Evidence 501-503 
 
 Jury Service ! 213 
 
 Justice and Law 16, 140-143 
 
 K. 
 
 Kidnapping 578 
 
 Kohl v. United States 121,122 
 
 L. 
 
 Laches 270 
 
 Land 378 383, 391 
 
 What Included in 378-383, 391 
 
 Immobility as Characteristic of 379 
 
 Water as 379 
 
 Minerals as 379 
 
 Fixtures as 380,381 
 
 Easements as 381-383 
 
 Land, sale of 237, 307, 592 
 
 Violation of Rights in 401 
 
 Lateral Support 401 
 
 Law, Agency by 309 
 
 Law, General Conception 1. 6, 124 
 
 Conduct as Subject Matter of 6 
 
 Persons as Subject Matter of 6 
 
 Things as Subject Matter of 6 
 
 Different Kinds 125-138 
 
 Based Upon Morality 139-143 
 
 Subject Matter of 146 
 
 Growth of 16 
 
 Violation of 12 
 
 Ignorance of 12
 
 JNDKX. 655 
 
 PAGE. 
 
 Misrepresentation of 12 
 
 Due Process of 210, 211 
 
 Equal Protection of 209 
 
 Need Not be Plead 470 
 
 Law of the Land 210 
 
 Law Merchant 136 
 
 Consideration In 236 
 
 Law and Justice 16, 140-143 
 
 Leases 593 
 
 Legal Causation 15 
 
 Legal Duty (See Duties, Legal). 
 
 Legal Entity, Corporation is 318 
 
 Corporation as, Not a Party to Charter Contract 338,339 
 
 Charter as Law of Being to 339, 340 
 
 Legal Fictions 17 
 
 Legal Liability, Extent of 174, 175 
 
 Legal Responsibility as Affected by Status 176-187 
 
 Legal Rights and Their Classification (See Rights) 188-224 
 
 Legal Sanctions 8, 437-446 
 
 Legal Sanction , 437-446 
 
 Necessity for 437 
 
 Meaning of .. 437 
 
 Courts 438 
 
 Classifications of 438 
 
 Rewards 439 
 
 Penalties 439-446 
 
 Preventive 439 
 
 Redressive 439 
 
 Self-help 440 
 
 Applied by Governmental Agencies 440 
 
 Public 441 
 
 Private Remedies 442-446 
 
 Preventive Remedies 443 
 
 Redressive Remedies 443 
 
 Damages 443-446 
 
 Legal Standards 139, 140 
 
 Legality of Object in Contracts 200, 201, 238, 239, 308, 603-609 
 
 Forbidden by Common Law 604 
 
 Forbidden by Statute 604 
 
 Construction of 604 
 
 Effect of Illegality 605 
 
 Agreement Fully Executed 238, 605 
 
 Performed on One Side 238, 605 
 
 Participation in a Wrong 606, 607 
 
 Agreement Growing Out of Illegal Agreement 607
 
 056 INDEX. 
 
 PAGE. 
 
 Assignees of Illegal Agreement 607 
 
 Partially Illegal 608 
 
 Classification of Illegal Agreements 608 
 
 Legislation, a Function of Sovereignty 22, 105 
 
 President's Powers in Connection With ; . 58 
 
 Legislative Department of the United States Government (See 
 Congress of the United States). 
 
 Legislative Department of State Governments 74, 75 
 
 Legislative Bodies 74, 75 
 
 Two Houses 74 
 
 Manner of Enacting Laws 74, 75 
 
 Veto by Governor 75 
 
 Legislative Powers of the States 75 
 
 Legislative Function to Define Crimes 514 
 
 Legislative Powers of the Federal Government (See Congress).. 49-53 
 Legislative Powers of State and Federal Governments Usually 
 
 Exclusive 93 
 
 Legislature, State 74, 75 
 
 Legislature, Power to Determine Existence of Facts Necessary to 
 
 Its Jurisdiction 39 
 
 Legitimate Children 287-289 
 
 Liability for Tort, Discharge of 544, 545 
 
 Agreement 544 
 
 Suit 544 
 
 Limitation 545 
 
 Libel (See Defamation) 206-208, 564-568 
 
 Liberty 139, 194 
 
 Liberty of Speech 205, 206 
 
 License 12, 159, 235, 266-269, 392-395 
 
 Definition 266 
 
 By Law 266 
 
 By Person Affected 267-269 
 
 Resulting from Agreement Lacking Consideration .. 267 
 
 Resulting from Agreements Lacking Form 268 
 
 Unlawful Agreements as Creating 268 
 
 On Land 392-395 
 
 Impliedly Given by Owner ". * . 393 
 
 Expressly Given by Owner 393 
 
 Revocable 393 
 
 Given by Law 394 
 
 Trespass ab initio 394 
 
 Lieutenant Governor 76 
 
 Light, Nuisances as to 560 
 
 Limitation 11, 270, 271, 362 
 
 As a Defense 271
 
 INDEX. 657 
 
 PAGE 
 
 As a Basis of Right 271,402 
 
 Disabilities 271 
 
 Limitations on Powers of the States in Federal Constitution 84 
 
 Locality, Effect on Remedial Rights 222-224 
 
 Crimes 221 
 
 Torts 223 
 
 Contracts 224 
 
 Limitations on Sovereignty 19 
 
 Lord Campbell's Act 191, 579 
 
 Lunatics, Contracts of ( See Insane Persons ) 686 
 
 M. 
 
 Malicious Prosecution 663 
 
 Definition 663 
 
 Contrast with False Imprisonment 563 
 
 "When Cause of Action Arises 563 
 
 Majority, When Attained 288 
 
 Manufactured Article, Rights of Owner of Material in 358 
 
 Manumission of Children 288 
 
 Maps as Evidence 489 
 
 Marbury v. Madison 34-38 
 
 Marital Domicile as Affecting Divorce Proceedings 284-287 
 
 Maritime Law 138 
 
 Marriage 7, 149, 167, 179-181 
 
 Between Citizens and Aliens, Effects of 149 
 
 Effect of at Common Law 167 
 
 Effect Upon Legal Capacity of Woman 179-181 
 
 Married Women 179-181, 283, 305, 306, 521, 541 
 
 Status Under the Common Law 179 
 
 Power to Bind Her Husband 180 
 
 Power to Contract 180,587 
 
 Contracts by 232 
 
 Crimes by 180,283,521 
 
 Torts by 180, 283, 541 
 
 Domicile of 283 
 
 Citizenship of 283 
 
 As Principals 305,306 
 
 As Agents 305,306 
 
 Martial Law 138 
 
 Master When Responsible for Tort of Servant 642 
 
 When Evil Motive of Servant is Imputed to 543 
 
 Master and Servant 169, 293-304, 546, 553 
 
 Who Are 169, 293 
 
 Relation Based on Contract 293 
 
 42
 
 t>58 INDEX. 
 
 PAGE. 
 
 Distinguished from Principal and Agent 294 
 
 Distinguished from Employer and Independent Contractor 294 
 
 Who May be 295 
 
 Rights and Duties Between 295-302 
 
 Right to Fix by Agreement 295 
 
 As at Common Law 296-301 
 
 Care as to Premises 296 
 
 As to Appliances 296 
 
 As to Selection of Servants 296 
 
 As to Rules 296 
 
 Fellow Servant Rule 297 
 
 Limited by Statutes as to Railroad Companies .. 297 
 
 Vice-Principals 298 
 
 Non-assignability of duty 299 
 
 Assumption of Risk 300 
 
 Compensation and Reimbursement 301 
 
 On Breach of Continuing Contract 301 
 
 Servant's Duties 302 
 
 Ending of the Relation 302 
 
 Liability of Each for Conduct of the Other 302-304 
 
 Each Responsible for His Own Wrong 303 
 
 Master Responsible for the Wrong of the Servant 
 
 Within the Scope of the Employment 303 
 
 Nonassignability of Master's Duties 303 
 
 Indemnity Between in Case of Torts 546 
 
 Materiality in the Law of Fraud 252 
 
 McCulloch v. Maryland 101-115 
 
 Means of Proof 477-489 
 
 Members of Congress, Election of 48 
 
 Membership in Stock Corporation 342-344 
 
 How Acquired 342 
 
 Rights Incident to 343 
 
 Dividends, Definition of 343, 344 
 
 Liabilities 344 
 
 Mental Capacity, Standard of 162 
 
 Mental Conditions 7, 8, 157-165, 515-520 
 
 Unmanifested 7 
 
 Motive 8, 157, 515 
 
 Intent 8, 157, 515 
 
 Purpose 8 
 
 In Criminal Law 8, 158, 515-520 
 
 In Tort Law 8, 159, 161 
 
 In Contract Law 8, 161-162 
 
 Mental Suffering as Element of Damage 192, 193 
 
 Methods of Infringing Trademarks 413
 
 INDEX. 659 
 
 PAGE. 
 
 Military Law 138 
 
 Mind, Security to 191-193 
 
 Injuries Involving Impairment of Faculties 192, 193 
 
 Minerals 379 
 
 In the soil 379 
 
 When Separated from the Soil 379 
 
 Minor Political Subdivisions 40-45 
 
 Minority, When Ceases 288 
 
 Minors (See Infants). 
 
 Misdemeanor 613 
 
 Misrepresentation of Law 12 
 
 Misrepresentation in Fraud 254 
 
 Mistake 12, 163, 197, 519 
 
 Of Fact 12 
 
 As Affecting Agreements 197,596-598 
 
 Of Law • 696 
 
 Of Fact 597 
 
 In Criminal Law 519, 520 
 
 Moral Nature, Laws Protection of 141-143 
 
 Moral Right as Element of Political Power 18 
 
 Morality, Basis of the Law 139-143 
 
 Morals, Protection to 193 
 
 Motions 474 
 
 Motive 157, 201, 242, 515-520, 543 
 
 Distinguished from Consideration 201 
 
 As Affecting Negligence 242 
 
 In Crime 515-520 
 
 Evil, When Imputed 543 
 
 Between Joint Actors 543 
 
 Husband and Wife 543 
 
 Master and Servant 543 
 
 Principal and Agent 543 
 
 Municipal Corporations, Torts by 540 
 
 Municipal Law ( See Law) 125 
 
 Definitions of 125-127 
 
 Blackstone's Definition 125 
 
 Bouvier's Definition 126 
 
 Author's Definition 127 
 
 Different Kinds of 128,129 
 
 Common Law 128, 133 
 
 Unwritten Law 128 
 
 Written Law 129-132 
 
 Constitutions as 130, 131 
 
 Statutes as 131 
 
 Treaties as 132
 
 660 
 
 INDEX. 
 
 PAGE. 
 
 Substantive 132 
 
 Adjective 132 
 
 Public 133 
 
 Private 133 
 
 Roman Law 133 
 
 Civil Law 134 
 
 Criminal Law 134 
 
 Equity 134 
 
 Contract 135 
 
 Tort 136 
 
 Law Merchant 136 
 
 Ecclesiastical 136 
 
 Ex Post Facto 137 
 
 Retroactive 137 
 
 Military 138 
 
 Martial 138 
 
 Maritime 138 
 
 Munn v. People of Illinois 123 
 
 N. 
 
 Nation, Sovereignty In 3 
 
 Natural Conditions Not Nuisances 559 
 
 Naturalization 147, 148 
 
 Exclusive Jurisdiction of In Federal Government 147 
 
 Who May be Naturalized 147 
 
 Process of 148 
 
 Effects of 148 
 
 Necessaries, Contracts of Infants for 586 
 
 Necessary Powers Under the Federal Constitution, Discussed. . . .106-109 
 
 Necessity, Agency by 309 
 
 Negligence 242-245, 547-554 
 
 Definition of 242,243,547 
 
 Wilf ull 242, 547 
 
 Inadvertent 242, 547 
 
 Standard of Care 547 
 
 Matter of Law or of Fact 548 
 
 Contracts Against Liability for 549, 550 
 
 Contributory 550 
 
 Remote and Proximate Cause in Cases of 551 
 
 Failure of Duty Necessary to 551 
 
 Contributory 552 
 
 Gross 243 
 
 Standard of Care 243 
 
 Per Se 244
 
 INDEX. 661 
 
 PAGE. 
 
 Of Common Carriers 244 
 
 Imputed 553 
 
 Remedies for 554 
 
 Negotiable Instruments 203, 236, 591, 612 
 
 New States 72, 73, 92 
 
 New Trial 508 
 
 Nonassignability of Duty 13, 15, 171-173 
 
 Of Master's Duties 299, 300 
 
 To Third Party 303 
 
 Non-age as Affecting Marriage 281 
 
 Non-disclosure in Fraud 255, 256 
 
 Disclosure When a Duty 255, 256 
 
 Non-liability of Members of Corporations 325 
 
 Normal Persons 6, 149 
 
 Note, Promissory 613 
 
 Notice 272-274 
 
 Knowledge 272 
 
 Ignorance 272 
 
 Definition of 272 
 
 Implied in Law 272 
 
 Implied in Fact 273 
 
 Of Filing Pleadings 473 
 
 Novation 622 
 
 Nuisance 654-561 
 
 Definitions of 554-557 
 
 Injury from 557 
 
 Natural Conditions Not 559 
 
 Must Interfere With Ordinary Person 559 
 
 Injury Direct Result of Wrong 559 
 
 In Water, Light, and Air 660 
 
 Rights of Way 661 
 
 Remedy for 664 
 
 O. 
 
 Object, Legality of in Contract* 603-609 
 
 Obligation, Legal, Definition 9, 144 
 
 Offer and Acceptance (See Contracts) 583, 584 
 
 Office Holding 213 
 
 Officer, Federal, Salary of Cannot be Taxed by the State 116 
 
 Federal, Appointment of 67 
 
 Liabilities of 186-187 
 
 Discretionary Acts 185 
 
 Ministerial Acts 186 
 
 Official Discretion 186
 
 662 INDEX. 
 
 PAGE 
 
 Right to Enter Premises 394 
 
 Torts by 540 
 
 Official Capacity May be Proved by Parol 486 
 
 Opinions as Evidence 490 
 
 Experts 490 
 
 Non-experts 490, 491 
 
 Original Evidence 492 
 
 Owner of Material, Rights in Manufactured Article 358 
 
 Ownership 153, 351-369 
 
 Definition 9 
 
 General Conception 351 
 
 Elements of 9, 215, 352-356 
 
 Possession 353, 354 
 
 Use \ 355 
 
 Profits 355 
 
 Right to Change 356 
 
 Disposition 356 
 
 Acquisition 217, 218, 356-370 
 
 Methods of, Classification 356,357 
 
 Discovery 357 
 
 Production 357 
 
 Increase 360 
 
 Legal Succession to the Rights of Another 360-370 
 
 By Act of Both Parties 361 
 
 By Act of Transferee 362 
 
 By Act of Transferor 363 
 
 By Operation of Law , 364 
 
 By Act of Governmental Agencies 365 
 
 For Public Purposes 365-369 
 
 Eminent Domain 365 
 
 Under Taxing Power 366 
 
 By Escheat 366 
 
 By Forfeiture 367 
 
 By Suits in Protection of Private Rights 367-369 
 
 General 373 
 
 Special 217, 218, 373, 374 
 
 Limitations on 370-373 
 
 Not of Itself Basis of Liability for Injuries by Thing 
 Owned 173 
 
 P. 
 
 Papers Beyond Jurisdiction of Court, How Proven 484 
 
 In Possession of a Witness, Production of 484,485 
 
 In Possession of Adverse Party 485 
 
 Pardoning Power of the President 66
 
 INDEX. 663 
 
 PAGE. 
 
 Parent and Child 10, 287-291, 553 
 
 Legitimate Children 287 
 
 Duties to 288 
 
 Rights of as Between Parties •• 288 
 
 Rights and Duties as to Third Parties 289 
 
 Illegitimate Children 289 
 
 By Adoption 289, 290 
 
 Transfers of Parental Authority 291 
 
 Respective Rights and Duties 214 
 
 Parent Not Liable for Tort of Child 542 
 
 Parental Authority, Transfer of 291 
 
 Parol Contracts 617 
 
 Parol Interpretation of Written Words 486 
 
 Parol Testimony in Connection with Written Instruments ....482-488 
 
 Parol Sales of Land 237 
 
 Particular Persons, Rights Against 213, 214 
 
 Parties to Suit 461 
 
 Active Jurisdiction Over 465-468 
 
 Parties to Fraud, Adjustments Between 262, 263 
 
 Affected by 257 
 
 Parties, Liability for Crime 521 
 
 Insane Persons 521 
 
 Infants 521 
 
 Married Women 521 
 
 Parties to Contracts 584-588 
 
 Natural Persons 584 
 
 Aliens 585 
 
 Infants 585 
 
 Lunatics and Drunkards 586 
 
 Married Women 587 
 
 Corporations 587 
 
 Competency of in Contract of Agency 305, 306 
 
 Competency to Marry 281 
 
 Partners, Different Kinds 315 
 
 Liability for Firm Debts 315 
 
 Partnership 313 » 316 
 
 Definition 313 
 
 Involves Both Co-operation and Substitution 313 
 
 Not a Legal Entity 314 
 
 Created by Agreement 314 
 
 Termination of 315 
 
 Assets and Liabilities 3 15 
 
 Torts by 315, 541 
 
 Scope of the Business 316 
 
 Different Kinds of 31<5
 
 664 INDEX. 
 
 PAGE. 
 
 Passengers, Duty of Common Carriers to 422, 552 
 
 Right of Carrier to Refuse 425 
 
 Patents 409 
 
 Penalties 437-446 
 
 Criminal 438 
 
 Preventive 439 
 
 Redressive 439 
 
 Public 441 
 
 Enumeration of 441 
 
 People, A 3 
 
 People of the United States, Powers of 3 
 
 Of the States, Powers of 3 
 
 Performance, Discharge of Contract by 623 
 
 Personal Property 154, 392, 404-413 
 
 Transfers of Title to 405-407 
 
 Sales 405 
 
 Things Sold 405 
 
 Potential Existence 405 
 
 Price in Money 406 
 
 Caveat Emptor 406 
 
 Warranty of Title 406 
 
 Barter 407 
 
 Gifts 407 
 
 Bailments 407, 408 
 
 Definition 407 
 
 What May be Bailed 407 
 
 Three Kinds of 408 
 
 Torts Against 575-578 
 
 Ownership of 575 
 
 Trespass Upon . .' 576 
 
 Replevin 576 
 
 Detinue 576 
 
 Trover 576 
 
 Remedies for 576 
 
 Interference With Under Process 576, 577 
 
 Process Fair on Its Face 577 
 
 Incorporeal Chattel Interests 577 
 
 Personal Rights 9, 189-208 
 
 Bodily Security 189-191 
 
 Security to the Mind 191-193 
 
 Security to Morals 193 
 
 Freedom of Action 194-196 
 
 Persons 146-1 52 
 
 Definition of 6,146 
 
 Natural and Artificial 6, 146
 
 INDEX. 665 
 
 PAGE. 
 
 Normal and Abnormal 6 
 
 Citizens 146 
 
 Naturalization 147 » 14S 
 
 Subjects 148 > 149 
 
 Aliens '•••• 149 
 
 Sui Juris or Normal I 49 
 
 Non Sui Juris or Abnormal 150-152 
 
 Insane Persons 150,151 
 
 Legal Liabilities of 151 
 
 Legal Restraints Over 151 
 
 Under Duress 152 
 
 Drunken 152 
 
 Care Required of Common Carriers of 244 
 
 Rights in 9,218,219 
 
 Petition, Right of 213 
 
 Photographs as Evidence 489 
 
 Physical Defects as Affecting Marriage 281 
 
 Physical Force as Element of Political Power 18 
 
 Physical Injury, Damage for 191-193 
 
 Pleadings 469-477,507 
 
 General Discussion 469 
 
 Definition 469 
 
 Issues, How Presented and Joined 470 
 
 Law Need Not be 470 
 
 Facts Must be Fully 470 
 
 Defensive 471-473 
 
 Dilatory Pleas 4? 1 
 
 In Bar 47i 
 
 Demurrers 47 * 
 
 Denials 471 
 
 Confession and Avoidance 471 
 
 Estoppel 472 
 
 Order of 472 
 
 Names of Different Instruments 472 
 
 Number of Defenses 473 
 
 Amendments 47s 
 
 Notice of Filing 473 
 
 In Criminal Cases 525-528 
 
 Pleas, In Bar 471 
 
 Dilatory 471 
 
 Poisoning 564 
 
 Police Power 23 « 24 
 
 Cannot be Contracted Away • • • 24 
 
 Political Power 4 « 18 
 
 General Discussion 18-45
 
 666 INDEX. 
 
 PAGE. 
 
 Moral Right, Element of 18 
 
 Physical Force as Element of 18 
 
 Political Organization, Theoretical Consideration 25-28 
 
 In the United States 28-32 
 
 Political Rights 10, 148, 212, 213 
 
 Suffrage 212 
 
 Office Holding 213 
 
 Right of Petition 213 
 
 Who May Enjoy 148 
 
 Political Subdivisions of the States 40-45 
 
 Possession as Proof of Title 402 
 
 Possession 353-355 
 
 Actual 353 
 
 Constructive 353 
 
 Unlawful, Good Against Trespasser 374 
 
 Postponements and Continuances 507 
 
 Powers of Congress, Express 51-53 
 
 Implied 99-109 
 
 To Create Courts 60 
 
 Powers of Corporations 321-325 
 
 Practicability of Law 140-143 
 
 Practice in the United States Court 69 
 
 Precincts, Legal Status of 184 
 
 Prescription 362 
 
 Presentments 526 
 
 President of the United States 53-58 
 
 Presidential Succession 53 
 
 Manner of Election 48, 54 
 
 Connection with Executive Departments 55, 56 
 
 Pardoning Power 56 
 
 Treaties 57 
 
 Appointing Power 57 
 
 Powers in Connection with Legislation 67 
 
 Sending Messages 58 
 
 Veto 51, 58 
 
 Intercourse with Foreign Nations 58 
 
 Presidential Succession 53 
 
 Presumption 17 
 
 Conclusive 17 
 
 Rebuttable 17 
 
 Of Innocence 521 
 
 Does Not Extend to Mental Capacity 522 
 
 Principal and Agent 305-312 
 
 Primary Evidence 493 
 
 Substitution Involved In 805
 
 INDEX. 667 
 
 PAGE. 
 
 Agency, How Formed 305 
 
 Agency, by Agreement 305-309 
 
 Parties to Agreement 305, 306 
 
 As Affecting Agency Contract 305 
 
 As Affecting the Agency Act 306 
 
 Consideration 306 
 
 Legality of Purpose 306 
 
 Form 307, 308 
 
 When Formed . 308 
 
 Ratification , 308 
 
 Agency by Estoppel 309 
 
 Agency by Law 309 
 
 By Necessity 309 
 
 Termination of the Relation 310 
 
 Duties of Parties as Between Themselves 311 
 
 Right as Against and Liabilities to Third Parties 311 
 
 As Example of Substitution 169 
 
 Distinguished from Master and Servant 169, 294 
 
 Principal, When Responsible for Tort of Agent 542 
 
 Principals, in Crime 522 
 
 Principles, Legal 1, 3-17 
 
 Private Law 133 
 
 Private Corporation, Definition (See Corporation) 317 
 
 Private Property Charged with Public Uses 434-436 
 
 General Discussion 434 
 
 Munn v. People, Discussion of 434 
 
 Right to Regulate 434, 435 
 
 Absence of Competition 435 
 
 Monopolistic Tendencies 435 
 
 Privileged Communications 566, 567 
 
 Absolutely Privileged 560 
 
 Conditionally Privileged 567 
 
 Probability 504 
 
 Procedure In Appellate Court 509 
 
 In Criminal Case 525-529 
 
 (See Criminal Law.) 
 
 In Trial Court 507-509 
 
 Proceedings in Personam 464, 467 
 
 Quasi In Rem 464, 468 
 
 In Rem 464, 467, 468 
 
 Process, Abuse of 576, 577 
 
 Fair on Its Face 577 
 
 Production, as Basis of Ownership 358-360 
 
 Profits as Element of Ownership 355 
 
 Proof, Sufficiency of 505, 506
 
 668 INDEX. 
 
 PAGE 
 
 Criminal Law 505 
 
 Civil Law 606 
 
 Promises to Give 234 
 
 Property 9, 153, 203, 204, 351-415, 404-413, 554 
 
 General Consideration 351-415 
 
 Personal 404-413 
 
 Injury to 554 
 
 Rights to Acquire, Hold and Dispose of 203,204 
 
 Property Rights, Limitations on 370-373 
 
 Police Power 370 
 
 For the Protection of Individuals 371-373 
 
 On Use 371 
 
 On Profits 372 
 
 On Disposition 373 
 
 Propriety 141 
 
 Definition 8 
 
 Legal 139, 140 
 
 Proximate Cause 174, 175, 544 
 
 Publication in Defamation 564 
 
 Public Conscience 16 
 
 Public Corporation, Definition 317 
 
 Public Duties, from Public Utilities 419 
 
 Public Good 6 
 
 Public Highway, When Obstructed 394 
 
 Public Law 133 
 
 Public Opinion 16 
 
 Public Policy as Basis of Liability in Secondary Range of Con- 
 duct 173 
 
 Public, Protection by Law 511 
 
 Public Records, Provable by Copy 483 
 
 Public Sentiment and Law 140-143 
 
 Public Uses, Private Property Charged With 434-436 
 
 Public Utilities 416-434 
 
 Matters Purely Public 416 
 
 Enumeration of 417 
 
 Governmental Control Over 418 
 
 Special Privileges 418 
 
 Duties to the Public, Enumeration 419 
 
 Punishments 521, 523, 524 
 
 Common Law 523 
 
 Statutory 523 
 
 Assessing 524 
 
 Enumeration of 441 
 
 Purchasers, Innocent 400 
 
 Putting on Inquiry 273
 
 INDEX. 669 
 
 Q. 
 
 PAGE 
 
 Qualifications for Suffrage 49 
 
 Quasi Contracts 239-241 
 
 Common Law Forms of Action as Affecting 240 
 
 Basis Principle in 241 
 
 E. 
 
 Railroad Commissions 82,83 
 
 Ratification, Agency by 308 
 
 Real and Personal Property 391 
 
 Real Estate 391 
 
 Real Evidence 488, 489 
 
 Real Property 153 
 
 Receipts, Parol Explanation 487 
 
 Registration of Title 399 
 
 Relations Between the Government of the United States and of 
 
 the States 85-98 
 
 Relations, Domestic 278-292 
 
 Relationship of Parties as Affecting Marriage 281 
 
 Relevancy 498-500 
 
 Definition 498 
 
 Tests of 498 
 
 Instances of 499 
 
 Religious Organizations, Torts by 541 
 
 Remainderman, Waste Against 574 
 
 Remedial Right 12 
 
 Remedial Rights 10, 220-224 
 
 Classification 220 
 
 Self-Help 220 
 
 Remedy Through Governmental Agencies 221-224 
 
 Compensatory 221 
 
 Preventive 221 
 
 Relation to Right 221 
 
 Effect of Locality Upon 222-224 
 
 Crimes 222 
 
 Torts 223 
 
 Contracts 224 
 
 Remedies 440, 442-446 
 
 Self-help 440 
 
 Preventive 443 
 
 Redressive 443 
 
 Damages 443-446 
 
 For Bodily Hurt 554 
 
 For Injury to Property 554
 
 670 INDEX. 
 
 PAGE 
 
 For Negligence 554 
 
 Remedy (See Remedial Rights) 15, 220-224 
 
 And Right, Relations Between 221,222 
 
 As Between Conspirators 269 
 
 Award of 510 
 
 For Breach of Contracts of Agency 310,311 
 
 For Fraud 258,261 
 
 Remote and Proximate Cause 174,175, 544 
 
 In Negligence 551 
 
 Removal of Causes from State to Federal Courts 80 
 
 Republican Form of Government, Guaranteed to the States.... 72, 73 
 
 Reputation 565 
 
 Right to (See Defamation). 
 
 Residence of Parties, as Affecting Divorce Proceedings 284-2S7 
 
 Responsibility as Dependent on Mental Capacity 162 
 
 Res Adjudicata 16 
 
 Res Gestae 495 
 
 Retroactive Laws 137 
 
 Revenue, Raising 23 
 
 Reversioner, Waste Against 574 
 
 Rewards 439 
 
 Right and Remedy, Relations Between 221, 222 
 
 Right, Equality of 6 
 
 Legal, Definition 8 
 
 Of Petition 213 
 
 To acquire, Hold and Dispose of Property 203, 204 
 
 Distinction between and Ownership 202 
 
 To Carry on Business (See Business). 
 
 To Contract 197-204 
 
 Definition 197 
 
 Agreement, Definition 197 
 
 Effect of Mistake on 197 
 
 Effect of Duress 197 
 
 Effect of Fraud on 197 
 
 When Enforcable as a Contract 199-203 
 
 Parties 199 
 
 Purpose 200 
 
 Consideration 201 
 
 Form , 202 
 
 To Form Special Relations 205 
 
 To Freedom of Conscience 206 
 
 Extent of 20tJ 
 
 Limitations on 206 
 
 To Freedom of Thought 206 
 
 To Reputation (See Defamatilm).
 
 INDEX. 671 
 
 PAGE 
 
 To Vote (See Voting) 48, 49 
 
 Rightness 8, 141 
 
 Rights and Duties, Legal ■ 8-15 
 
 In Criminal and Tort Law Fixed by Sovereign 10 
 
 In Contract Law, by Assent of Parties 10 
 
 Rights, Legal, Fundamental Conceptions .143-145 
 
 Definitions of 143,144,188 
 
 Duty as Related to 144 
 
 Who May Have 144 
 
 Protected by Criminal Law 144 
 
 Protected by Civil Law 144, 145 
 
 Protection of, Sole Purpose of Private Law 188 
 
 No Legal Wrong except by Invasion ot 188 
 
 Classification and Enumeration of 188, 189 
 
 Personal 189-208 
 
 What Included in 189 
 
 Bodily Security 189-191 
 
 How Secured 189 
 
 Use of Force Upon Body Unlawful 191 
 
 Exceptions 191 
 
 Security to the Mind 191-193 
 
 Impairment of Faculties 191-193 
 
 Mental Suffering 192.193 
 
 Security to Morals 193, 194 
 
 Freedom of Action - 194-196 
 
 Limitations on 194, 195 
 
 Habeas Corpus 195 
 
 Bill of Rights 195 
 
 Against Particular Persons 10, 213, 214 
 
 Dependent Upon Contract 213 
 
 Not Dependent on Contract 214 
 
 Between Parent and Child 214 
 
 In Persons 9, 218, 219 
 
 Between Husband and Wife 219 
 
 Between Parent and Child ,. 219 
 
 Between Master and Servant 219 
 
 Compensation for Death of Another 219 
 
 Changes in 225-227 
 
 By Conduct Violative of Criminal Law 226 
 
 Rights, Assignment of 12 
 
 Rights, Conduct Violative of, Unlawful 7 
 
 Rights, Exercise of Through Substitute 13 
 
 Rights in Land, Violation of 401 
 
 Rights in Rem Under Contract 614 
 
 Rights in Things 9, 214-218
 
 672 INDEX. 
 
 PAGE 
 
 Rights in Water (See Water). 
 
 Rights on Property, Limitations on 370-373 
 
 Rights of Third Parties Under Contracts 613 
 
 Rights of Way 383,561 
 
 Nature of _ 561 
 
 Rights, Personal 9 
 
 In Things 9 
 
 Rights, Political 10 
 
 Remedial 10 
 
 Creation, Modification and Termination of 10 
 
 Agreement as Affecting (See Political Rights) 10 
 
 Rights, Private, Protection of 440-446 
 
 Self-help 440 
 
 Protection Through Governmental Agencies 440-446 
 
 Public Penalties 441 
 
 Private Remedies 442-446 
 
 Preventive 443 
 
 Redressive 443 
 
 Damages 443-446 
 
 Rights, Remedial (See Remedial Rights) 220-224 
 
 Roman Law 133 
 
 Marriage Under 167 
 
 s. 
 
 Salary of Federal Officer Cannot be Taxed by State Government. 116 
 Salary of State Officer Cannot be Taxed by Federal Government.115-121 
 
 Sales of Personal Property 361, 594 
 
 Sales Under Execution 369 
 
 Sanctions, Legal 59 
 
 Sanity, Test of 7 
 
 School Districts. Legal Status of 184 
 
 Scope of Agency Employment 311 
 
 Of Employment of Servant 303 
 
 Seal as Affecting Consideration 202, 235, 588 
 
 Contracts Under 591 
 
 Second Continental Congress. Provisions by for Declaration of 
 
 Independence and Articles of Confederation 85-87 
 
 Secondary Evidence 493 
 
 Secretary of State, State 76 
 
 Seduction, as a Tort 578 
 
 Self-defense 220. 517 
 
 Self-help 15, 220, 440 
 
 Senate of the United States 49-51 
 
 Election of Vice President by 54
 
 " INDEX. 673 
 
 PAGE. 
 
 Servant, Definition of ( See Master and Servant) 292 
 
 Servant's Right to Compensation 301, 302 
 
 On Breach of Contract for Continuing Service 301 
 
 Duties of 302 
 
 Service by Common Carriers 420-422 
 
 Severable Contracts 612 
 
 Several Contracts 612 
 
 Shares of Stock 340-342 
 
 Slander (See Defamation) 206,208,564-568 
 
 Of Title 574 
 
 Sovereign, Legal Rights of 9 
 
 Sovereignty 
 
 General Discussion 18-45 
 
 Definition of 18 
 
 Limitation of 19 
 
 Division of Between State and Federal Governments .... 19 
 
 Investiture of .\ 19 
 
 Organization of Governments by 20 
 
 Determinative Power 22 
 
 Applicatory Power 22 
 
 Executive Power 22 
 
 Functions of 22-24 
 
 Self-preservation 22 
 
 Intercourse With Other Sovereigns 22 
 
 Internal Government 22 
 
 Subdivisions of Territory 22 
 
 Raising Revenue 23 
 
 Eminent Domain 23 
 
 Police Power 23, 24 
 
 Sovereignty as Tort Feasor 539 
 
 Sovereignty, Considerations Controlling in Enacting Laws 140-143 
 
 Sovereignty, Control Over Its Citizens 466 
 
 Sovereignty, Division of c+ 3, 28, 91 
 
 Sovereignty, Division Between the States and Federal Govern- 
 ment 4, 99-101, 106, 123 
 
 Duties of 4 
 
 Delegation of 4 
 
 Three Phases of Power in 4 
 
 National 3 
 
 State S 
 
 Sovereignty, Duty to Afford Protection 16 
 
 Sovereignty of the Soil 402 
 
 Sovereignty, Purposes in Establishing Government 139, 140 
 
 Sovereignty, States and United States Each Sovereign Within 
 
 Its Sphere 117, 118 
 
 43
 
 Li 74 INDEX. 
 
 PAGE. 
 
 Special Ownership 9, 217, 218 
 
 Speech, Freedom of 205 
 
 Sport, Involving the Use of Force, Right to Engage in 268 
 
 Standards, Legal .139, 140 
 
 Stare Decisis 16 
 
 State Cannot Tax Salary of Federal Officer 116 
 
 State Carriage 427, 428 
 
 State Constitutions 73, 74 
 
 State Courts, Revision of Judgments by Supreme Court of the 
 
 United States in Cases Involving Federal Questions 68-69 
 
 States, Sovereignty in 3 
 
 Reserved Powers of 32, 117-121, 123 
 
 Antedated the Confederation 29-31, 86, 87 
 
 Powers of 91 
 
 Status Before Entering Union 100 
 
 Effect of Adoption of the United States Constitution Upon. 84, 100 
 Division of Sovereignty Between, and the Federal Gov- 
 ernment 19,118 
 
 Guarantees to in Federal Constitution 83, 84 
 
 Legislative Powers of 74, 75 
 
 Rarely Concurrent With Powers of the Federal Gov- 
 ernment 75 
 
 Power to Regulate Suffrage 48, 49 
 
 Exclusive Jurisdiction Over Marriage and Divorce 279 
 
 Control Over Common Carriers 427, 428 
 
 Have No Power to Tax Instrumentalities of the Federal 
 
 Government 109-114 
 
 Subdivisions of 40-45 
 
 Liability to Suit 182 
 
 Torts by 539 
 
 Different Kinds, Unitary 25, 26 
 
 Confederations 26 
 
 Federal .*. 27, 28 
 
 States of the Union, Relations Between 96-98 
 
 Usually Regarded as Foreign to Each Other 96 
 
 Must Give Full Faith and Credit to Acts of Each Other. . 96 
 
 Privileges and Immunities of Citizens of One Not to be 
 
 Abridged in Others 97 
 
 Extradition Between 97 
 
 Forbidden to Make Treaties, etc 97 
 
 Forbidden to Lay Imposts, etc 98 
 
 New 92 
 
 State Government, General Discussion 71-84 
 
 Historical Development of 71-73 
 
 Effect of Constitution of United States Upon 71
 
 INDEX. 675 
 
 PAGE. 
 
 Powers of 72 
 
 Guarantees in the Federal Constitution to 72 
 
 New States 72 
 
 Form of Government in 73 
 
 Constitutions of 73 
 
 Legislative Departments of (See Legislative Departments) 74,75 
 Executive Departments of (See Executive Departments) . . 76-78 
 
 Judicial Department of (See Judicial Department) 78-82 
 
 State Judicial Systems 80-82 
 
 Instrumentalities of Cannot be Taxed by Federal Govern- 
 ment 114-121 
 
 State Officer, Salary of Cannot be Taxed by Federal Govern- 
 ment 115-121 
 
 Status as Affecting Legal Responsibility 176-187 
 
 Mental Unsoundness 176 
 
 Drunkenness 176 
 
 Duress : 177 
 
 Infancy 177-179 
 
 Coverture 179-181 
 
 Governmental Agencies 181 
 
 Direct Representatives of Sovereignty 181 
 
 Federal Government 181 
 
 States 182 
 
 Counties and Other Political Subdivisions 183 
 
 Cities and Towns 183, 184 
 
 Precincts and Townships 184 
 
 Officers 185-187 
 
 As Affecting Parties to Torts 539 
 
 Jurisdiction Over 466-468 
 
 Statute of Frauds 202, 237, 238, 307, 591-595 
 
 Contracts for Sale of Land 592, 593 
 
 By Executors and Administrators 592, 593 
 
 To Answer for the Debt of Another 593, 594 
 
 Not to be Performed Within a Year 594 
 
 Sales of Goods, Wares, and Merchandise 594 
 
 What is a Written Contract Under 595 
 
 Effect of Non-compliance 595 
 
 Sales of Real Estate 592 
 
 As Affecting Form of Contracts 202 
 
 As to Authority of Agent to Convey Land 307 
 
 Statutes 34-38, 74, 75, 131, 132 
 
 Enactment of by the States 74, 75 
 
 Contrary to Constitution, Void 34-38 
 
 Allowing Damages for Injuries Resulting In Death 579-581 
 
 Statutory Marriage 279
 
 676 INDEX. 
 
 PAGE. 
 
 Stock, In Corporations 340-342 
 
 Shares of ..< 340 
 
 How Acquired 341 
 
 Assignment of 342 
 
 Membership Incident to 343 
 
 Streams 397-399 
 
 Definition 397 
 
 Domestic Uses of Water 398 
 
 Commercial Uses of Water 398 
 
 Subject Matter of Law j 6 
 
 Subject Matter of Suit, Jurisdiction Over 462 
 
 Subordinate Executive Officers 78 
 
 Subscription to Shares of Stock 341 
 
 Subsisting Marriage as a Bar to a Second 281 
 
 Substantive Law 132 
 
 Substituted Contract 622 
 
 Substance of Issue Must be Proven 477 
 
 Substitution 13, 14, 168-170 
 
 Doctrine, Effect, and Scope of 168, 169 
 
 Master and Servant as Example of ' 169 
 
 Depends on Agreement 169 
 
 As Involved in the Relation of Principal and Agent 311 
 
 As Involved in Partnership . . 313 
 
 Subterranean Water , 395 
 
 Succession to the Rights of Another 360-369 
 
 Sudden Peril 553 
 
 Suffrage and Its Regulation 48, 49 
 
 Right to Vote Derivative 48 
 
 Regulated by the States Except as Affected by the 14th 
 
 Amendment, Constitution of U. S 48 
 
 Limitations Upon ( See Political Rights and Voting) 148 
 
 Supreme Court of the United States, Jurisdiction of 63,67,69 
 
 Appellate Jurisdiction 67-69 
 
 Original Jurisdiction 67 
 
 Surface Water 397 
 
 T. 
 
 Taxation, General Discussion .95, 109-114 
 
 Power to Sell Property Under 366 
 
 Federal Government Cannot Tax Instrumentalities of 
 State Governments 114-121 
 
 Telegraph and Telephone Companies 430-434 
 
 Are Public Utilities 431 
 
 Not Cmmnon Carriers 431
 
 INDEX. 677 
 
 PAGE. 
 
 _ .. - 432,433 
 
 Duties of •* ' 
 
 Legal Similarity of the Two 
 
 m . i 623 
 
 Tender 37g 
 
 Tenements < ;;;;; 3 84,385 
 
 Tenures > 8g 
 
 The Confederation 
 
 87 
 Nature of • * ' 
 
 Status of States Under ■ •••• °''°° 
 
 _., 7,152-154 
 
 Things 152 
 
 Definition ' . 
 
 Corporeal and Incorporeal 7 » 152 ' J * 
 
 Ownership, Elements of • 
 
 „ , 153 
 
 Estates „_„ 
 
 _,., 153 
 
 Ti«es 
 
 Real and Personal Property 
 
 Permanent and Transitory ••• 376 
 
 Moveable and Immoveable • 
 
 377-383 
 
 ??? "; 214-218 
 
 Rights in 
 
 Rights In Rem 
 
 Ownership, Elements of 
 
 Possession 
 
 TT 215 
 
 Use 
 
 215 
 Profits from 
 
 Modification of • • 
 
 Disposition of • """^'oifi 
 
 Limitations on 
 
 917 218 
 
 Special Ownership "•' 
 
 217 
 
 Illustrations of 
 
 217 218 
 How Acquired * 
 
 Things, Jurisdiction Over 
 
 How Acquired 
 
 Third Parties, Rights Under Contract • 
 
 Thought, Freedom of 
 
 Title 153,374,402. 
 
 Cloud Upon and Slander of 
 
 399 
 Registration of 
 
 To Increase Follows That of the Thing Producing 360 
 
 Transfer by Judgment 3 
 
 Transfer by Contracts • • 36 / 
 
 Tort, Mental Conditons as Affecting Liability 159-161 
 
 Actual Damage • 
 
 Exemplary Damage 
 
 General Conception 
 
 Civil Law, Contract Law, Tort Law 533
 
 678 INDEX. 
 
 PAGE. 
 
 Definition 534 
 
 Contrasted With Crimes and Breach of Contract 535-537 
 
 How Committed 537-539 
 
 Parties to 539-542 
 
 Person Injured 539 
 
 Wrong Doer 539-542 
 
 Sovereignty 539 
 
 Federal Government 539 
 
 State Government 539 
 
 County 183, 539 
 
 Cities and Towns 183, 184, 540 
 
 Public Officers 540 
 
 Natural Persons 540 
 
 Insane Persons 151, 540 
 
 Infants 178, 541 
 
 Married Women 180, 541 
 
 Combinations of 541, 542 
 
 Corporations 541 
 
 Partnerships • 315, 541 
 
 Joint Stock Companies 541 
 
 Religious and Charitable Organizations 541 
 
 Who Are Responsible for .'.... 542 
 
 Normal Persons 542 
 
 Husband 285, 542 
 
 Parent 542 
 
 Master 542 
 
 Principal and Agent 542 
 
 Employer and Independent Contractor 542 
 
 Damages 543 
 
 Actual 543 
 
 Exemplary 543 
 
 For What Consequences of Liability Attaches 544 
 
 Discharge of Liability for 544 
 
 Indemnity and Contribution Among Tort Feasors 545 
 
 Against Personal Property 575-578 
 
 Against Rights Which One Person Has in Another 578-581 
 
 Violative of Bodily Right 562,563 
 
 As Affected by Locality 223 
 
 Tort Feasors 539-541 
 
 Tort Law 136 
 
 Mental Condition in 8 
 
 Towns, Liabilities of 183, 184 
 
 Torts by (See Cities) 540 
 
 Townships, Legal Status of 184 
 
 Trade Marks 411
 
 INDEX. 679 
 
 PAGE. 
 
 Definition 411 
 
 Value of 412 
 
 Rules Governing 412 
 
 Treason 512 
 
 Treasurer, State 77 
 
 Treaties 57, 132 
 
 Trespass 568, 569 
 
 What is 568 
 
 Upon Land 401, 569 
 
 To Personal Property 569 
 
 Trespassers, Care as to 552 
 
 Trials 507-510 
 
 Dockets 507 
 
 Postponements and Continuances 507 
 
 Jury ■ 507 
 
 Pleadings 507 
 
 Evidence 507 
 
 Charge 507 
 
 Verdict 508 
 
 Judgment 508 
 
 New Trials 508 
 
 Appeal - N 509 
 
 Procedure in Appellate Court 509 
 
 Trials Upon the Merits 525 
 
 Trover and Conversion, Effect of Action of on Title 368 
 
 Truth as a Defense in Defamation 207, 565 
 
 Trust Fund Theory as to Corporate Funds 345, 346 
 
 u. 
 
 Ultra Vires, General Discussion 331-333 
 
 As to Agreements 331 
 
 As to Torts 333 
 
 Undue Enrichment, Doctrine of 241 
 
 Undue Influence 603 
 
 Unitary States 25 
 
 United States '. 28-32, 85-98, 118-122 
 
 Organization of Governments in 28-32 
 
 Political Organizations Within 85-98 
 
 Historical Development 85-87 
 
 Powers of 91 
 
 Eminent Domain 121» 122 
 
 Relations Between and the States 118, 119 
 
 United States, Government of 49-70, 101-109 
 
 Executive Department 53-58 
 
 President 53-58
 
 680 INDEX. 
 
 PAGF. 
 
 Presidential Succession 53 
 
 Manner of Election 54 
 
 Different Departments 55, 56 
 
 Nature and Extent of Its Powers 70, 92 
 
 Power of Eminent Domain 93 
 
 Legislative Powers of Usually Exclusive of the State Pow- 
 ers 93 
 
 Judicial Powers Largely Concurrent 94 
 
 Executive Usually Exclusive 95 
 
 Taxation by 95, 9G 
 
 Implied Powers of 101-109 
 
 Is by and of the People 101 
 
 Is One of Enumerated Powers 102 
 
 Is Supreme Within Its Sphere 102 
 
 When Powers May be Implied 103 
 
 Has Power to Make All Law Necessary and Proper to 
 
 Accomplish Its Purposes 106 
 
 Discussion of the Word "Necessary" 106-109 
 
 Express Limitations on 70 
 
 Control Over Common Carriers 427, 428 
 
 Powers as to Naturalization 147, 148 
 
 Liability to Suit 181 
 
 United States and State Governments, Their Relations to Each 
 
 Other 46-123 
 
 Comparisons of 46-49 
 
 States Have Primary Power, Federal Government Dele- 
 gated Power 46, 47 
 
 Two Governments Distinct and Separate 47 
 
 Legislative Powers Usually Exclusive 47 
 
 Respective Powers as to Suffrage 48, 49 
 
 United States Government Cannot Tax Instrumentalities of the 
 
 State Governments 114-121 
 
 United States Government, States Cannot Tax Its Instrumentali- 
 ties 109-114 
 
 Use as Element of Ownership 355 
 
 Usury 373 
 
 V. 
 
 Veazie Bank v. Fenno 114 
 
 Verdict 508 
 
 Verdict in Criminal Cases 528 
 
 Veto by President 51 
 
 By the Governor 76 
 
 Vice President 53 
 
 Manner of Election 54
 
 INDEX. 681 
 
 PAGE. 
 
 Vice Principals '- 298, 299 
 
 Violation of Rights in Land 401 
 
 Voting 48,49,148,212 
 
 Is Political Right 48, 49, 212 
 
 Not a Primary but a Derivative Right 148, 212 
 
 Definition of • • 212 
 
 State's Duty Regarding * 212 
 
 W. 
 
 Waiver • 269 
 
 Discharge of Contract by 622 
 
 Waste • • • 573 > 574 
 
 Positive '•..'• 573 
 
 Permissive 573 
 
 Ward (See Guardian and Ward). 
 
 Water 3 ™> 395-399 
 
 As Land • • • 379 
 
 Subterranean 395-397 
 
 Surface 397 
 
 In Streams .397-399 
 
 Stream, What is 397 
 
 Domestic Uses 398 
 
 Commercial Uses 398 
 
 Nuisances in 660 
 
 Water and Light, Right to Use Acquired by Prescription 363 
 
 Water Course, Definition 
 
 391 
 
 Way, Rights of, Nuisances Regarding 561 
 
 Weight of Evidence 502-505 
 
 Meaning of Statement 
 
 503 
 
 Probability of Statement • 504 
 
 Consistency With Other Facts 504 
 
 Relevancy 
 
 505 
 
 What May be Owned 375 
 
 Wife's Rights at Common Law 281 
 
 Agent of Husband 168 
 
 Evil Motive of Imputed to Husband 543 
 
 Alienation of Husband's Affections 578 
 
 Willful Negligence 242 « 547 
 
 Wills 275,363,414 
 
 Witnesses 477 " 479 
 
 477 
 
 Competency of 
 
 Manner of Swearing 478 
 
 478 
 
 Oral Examination 
 
 Depositions 478 
 
 Expert 490 
 
 I
 
 082 INDEX. 
 
 PAGE. 
 
 Words and Phrases, Construction of 620 
 
 Writs 510 
 
 Written Contracts (See Contracts) 591-595 
 
 Written Contract, Proof of 617-619 
 
 Existence of Document 617 
 
 That the Document is a Contract 618 
 
 As to Terms 618 
 
 Written Instruments 479-488 
 
 Classifications of 479-481 
 
 Genuineness of, How Proven 481 
 
 Best Evidence Rules 482-488 
 
 Rule I, Instrument, Proof of Its Contents 482 
 
 Relaxations of Rule I 483-486 
 
 Rule II, Contents Proof of Legal Effect 482 
 
 Exceptions to Rule II 486-488 
 
 Wrong Doing 155,156 
 
 Wrongs, Local and Transitory 223, 224 
 
 X. 
 X-ray Pictures 489
 
 APPENDIX. 
 
 FEDERAL JUDICIAL SYSTEM. 
 
 Brief Summary of Judiciary Act, Approved March 3rd, 1911, which 
 goes into effect Jan. 1st, 1912. 
 
 This is a very important act reorganizing the entire Federal Judicial 
 System. It incorporates into one statute all the acts of Congress ere* 
 ating Federal Courts and defining their jurisdiction, and also a great 
 many of the statutes regulating procedure in these courts. It is, there- 
 fore, properly designated as "An act to codify, revise, and amend the 
 laws relating to the judiciary" as set out in the title, or "The Judicial 
 Code" as declared in the body of the act. The principal change made 
 by it in tie regular system of courts is the abolition of the Circuit 
 Courts and the transfer of a very large part of the jurisdiction now 
 pertaining to these courts to the District Courts. All of the jurisdiction 
 is not transferred. For example: In suits arising under the Constitu- 
 tion and laws or treaties of the United States or between citizens of 
 different states, or between citizens of a state and foreign states, citi- 
 zens or subjects, the present minimum jurisdictional amount in the Cir- 
 cuit Court is $2,000, while in the "Code" the minimum amount in the 
 new District Courts is $3,000. 
 
 The new District Courts are to retain substantially all the jurisdic- 
 tion the present District Courts possess. 
 
 The jurisdiction of the Circuit Courts of Appeal remains practically 
 unchanged, as does that of the Supreme Court, except as changes in 
 the powers of the District Courts and the other special courts carry with 
 them resultant changes in the courts of revisory jurisdiction. 
 
 As the Act has not yet gone into effect, and consequently none of its 
 provisions have been construed, it might prove presumptuous to speak 
 more definitely of its effect, so I content myself with the foregoing very 
 general statements and a substantial setting out of a few of its more 
 Important provisions. 
 
 Chapter One deals with the Organization of the District Courts. 
 
 "Section 1. In each of the Districts described in Chapter 5, there 
 shall be a court called a District Court, for which there shall be ap- 
 pointed a judge, to be called a District Judge." Here follow several 
 Districts in which there shall be more than one judge and several which 
 are combined, having one judge in two. The remaining twenty-two 
 sections of this chapter deal with the organization of, and procedure in, 
 the several District Courts provided for.
 
 684 APPENDIX. 
 
 Chapter Two deals with the jurisdiction of the District Courts. Sec- 
 tions 24 and 25 are as follows: 
 
 Sec. 24. The District Courts shall have jurisdiction as follows: 
 
 First. Of all suits of a civil nature, at common law or in equity, 
 brought by the United States, or by any officer thereof authorized by 
 law to sue, or between citizens of the same State claiming lands under 
 grants from different States; or, where, the matter in controversy ex- 
 ceeds, exclusive of interest and costs, the sum or value of three thou- 
 sand dollars, and (a) arises under the Constitution or laws of the 
 United States, or treaties made, or which shall be made, under their 
 authority, or (b) is between citizens of different States, or (c) is be- 
 tween citizens of a State and foreign States, citizens, or subject. No 
 District Court shall have cognizance of any suit (except upon foreign 
 bills of exchange) to recover upon any promissory note or other chose 
 in action in favor of any assignee, or of any subsequent holder if such 
 instrument be payable to bearer and be not made by any corporation, 
 unless such suit might have been prosecuted in such court to recover 
 upon said note or other chose in action if no assignment had been 
 made: Provided, however, that the foregoing provision as to the sum 
 or value of the matter in controversy shall not be construed to apply 
 to any of the cases mentioned in the succeeding paragraphs of this 
 section. 
 
 Second. Of all crimes and offenses cognizable under the authority 
 of the United States. 
 
 Third. Of all civil causes of admiralty and maritime jurisdiction, 
 saving to suitors in all cases the right of a common-law remedy where 
 the common law is competent to give it; of all seizures on land or 
 waters not within admiralty and maritime jurisdiction; of all prizes 
 brought into the United States; and of all proceedings for the condem- 
 nation of property taken as prize. 
 
 Fourth. Of all suits arising under any law relating to the slave trade. 
 
 Fifth. Of all cases arising under any law providing for internal rev- 
 enue, or from revenue from imports or tonnage, except those cases 
 arising under any law providing revenue from imports, jurisdiction of 
 which has been conferred upon the Court of Customs Appeal. 
 
 Sixth. Of all cases arising under the postal laws. 
 
 Seventh. Of all suits at law or in equity arising under the patent, 
 the copyright, and the trade-mark laws. 
 
 Eighth. Of all suits and proceedings arising under any law regulat- 
 ing commerce, except those suits and proceedings exclusive jurisdiction 
 of which has been conferred upon the Commerce Court. 
 
 Ninth. Of all suits and proceedings for the enforcement of penalties 
 and forfeitures incurred under any law of the United States. 
 
 Tenth. Of all suits by the assignee of any debenture for drawback 
 of duties, issued under any law for the collection of duties, against the
 
 APPENDIX. 685 
 
 person to whom such debenture was originally grantea, or against any 
 indorser thereof, to recover the amount of such debenture. 
 
 Eleventh. Of all suits brought by any person to recover damages 
 for any injury to his person or property on account of any act done by 
 him, under any law of the United States, for the protection or collection 
 of any revenues thereof, or to enforce the right of citizens of the United 
 States to vote in the several States. 
 
 Twelfth. Of all suits authorized by law to be brought by any person 
 for the recovery of damages on account of any Injury to his person or 
 property, or of the deprivation of any right or privilege of a citizen 
 of the United States, by any act done in furtherance of any conspiracy 
 mentioned in section nineteen hundred and eighty, Revised Statutes. 
 
 Thirteenth. Of all suits authorized by law to be brought against 
 any person who, having knowledge that any of the wrongs mentioned 
 in section nineteen hundred and eighty, Revised Statutes, are about to 
 be done, and, having power to prevent or aid in preventing the same, 
 neglects or refuses so to do, to recover damages for any such wrongful 
 act. 
 
 Fourteenth. Of all suits at law or In equity authorized by law to be 
 brought by any person to redress the deprivation, under color of any 
 law, statute, ordinance, regulation, custom, or usage of any State, of 
 any right, privilege, or Immunity, secured by the Constitution of the 
 United States, or of any right secured by any law of the United States 
 providing for equal rights of citizens of the United States, or of all 
 persons within the jurisdiction of the United States. 
 
 Fifteenth. Of all suits to recover possession of any office, except that 
 of elector of President or Vice President, Representative In or Delegate 
 to Congress, or member of a State legislature, authorized by law to be 
 brought, wherein it appears that the sole question touching the title 
 to such office arises out of the denial of the right to vote to any citizen 
 offering to vote, on account of race, color, or previous condition of servi- 
 tude: Provided, that such jurisdiction shall extent only so far as to 
 determine the rights of the parties to such office by reason of the denial 
 of the right guaranteed by the Constitution of the United States, and 
 secured by any law, to enforce the right of citizens of the United States 
 to vote in all the States. 
 
 Sixteenth. Of all cases commenced by the United States, or by di- 
 rection of any officer thereof, against any national banking association, 
 and cases for winding up the affairs of any such bank; and of all suits 
 brought by any banking association established in the district for 
 which the court is held, under the provisions of title "National Banks," 
 Revised Statutes, to enjoin, the Comptroller of the Currency, or any re 
 celver acting under his direction, as provided by said title. And all 
 national banking associations established under the laws of the United 
 States shall, for the purposes of all other actions by or against them,
 
 686 APPENDIX. 
 
 real, personal, or mixed, and all suits In equity, be deemed citizens of 
 the States in which they are respectively located. 
 
 Seventeenth. Of all suits brought by any alien for a tort only, in vio- 
 lation of the laws of nations or of a treaty of the United States. 
 
 Eighteenth. Of all suits against consuls and vice consuls. 
 
 Nineteenth. Of all matters and proceedings in bankruptcy. 
 
 Twentieth. Concurrent with the Court of Claims, of all claims not 
 exceeding ten thousand dollars founded upon the Constitution of the 
 United States or any law of Congress, or upon any regulation of an 
 Executive Department, or upon any contract, express or implied, with 
 the Government of the United States, or for damages, liquidated or un- 
 liquidated, in cases not sounding in tort, in respect to which claims the 
 party would be entitled to redress, against the United States, either in 
 a court of law, equity, or admiralty, if the United States were suable, 
 and of all set-offs, counterclaims, claims for damages, whether liqui- 
 dated or unliquidated, or other demands whatsoever on the part of the 
 Government of the United States against any claimant against the Gov- 
 ernment in said court: Provided, however, that nothing in this para- 
 graph shall be construed as giving to either the district courts or the 
 Court of Claims jurisdiction to hear and determine claims growing out 
 of the late Civil War, and commonly known as "war claims," or to hear 
 and determine other claims which had been rejected or reported on ad- 
 versely prior to the third day of March, eighteen hundred and eighty- 
 seven, by any court, department, or commission authorized to hear and 
 determine the same, or to hear and determine claims for pensions; or as 
 giving to the District Courts jurisdiction of cases brought to recover fees, 
 salary, or compensation for official services of officers of the United States 
 or brought for such purpose by persons claiming as such officers or as 
 assignees or legal representatives thereof; but no suit pending on the 
 twenty-seventh day of June, eighteen hundred and ninety-eight, shall 
 abate or be affected by this provision: And provided further, that no suit 
 against the Government of the United States shall be allowed under this 
 paragraph unless the same shall have been brought within six years 
 after the right accrued for which the claim is made: Provided, that the 
 claims of married women, first accrued during marriage, of persons 
 under the age of twenty-one years, first accrued during minority, and of 
 Idiots, lunatics, insane persons, and persons beyond the seas at the time 
 the claim accrued, entitled to the claim, shall not be barred if the suit 
 be brought within three years after the disability has ceased; but no 
 other disabilities than those enumerated shall prevent any claim from 
 being barred, nor shall any of the said disabilities operate cumulatively. 
 All suits brought and tried under the provisions of this paragraph shall 
 be tried by the court without a jury. 
 
 Twenty-first. Of proceedings in equity, by writ of injunction, to re- 
 strain violations of the provisions of laws of the United States to pre- 
 vent the unlawful inclosure of public lands; and it shall be sufficient to
 
 APPENDIX. 687 
 
 give the court jurisdiction If service of original process be had in any 
 civil proceedings on any agent or employee having charge or control 
 of the inclosuro. 
 
 Twenty-second. Of all suits and proceedings arising under any law 
 regulating the immigration of aliens, or under the contract labor laws. 
 
 Twenty-third. Of all suits and proceedings arising under any law 
 to protect trade and commerce against restraints and monopolies. 
 
 Twenty-fourth. Of all actions, suits, or proceedings involving the 
 right of any person, in whole or in part of Indian blood or descent, to 
 any allotment of land under any law or treaty. 
 
 Twenty-fifth. Of suits in equity brought by any tenant in common or 
 joint tenant for the partition of lands in cases where the United States 
 is one of such tenants in common or joint tenants, such suits to be 
 brought in the District in which such land is situate. 
 
 Section 25. The District Courts shall have appellate Jurisdiction of 
 the judgments and orders of United States commissioners in cases aris- 
 ing under the Chinese exclusion laws. 
 
 Chapter Three regulates removal of cases from State to Federal 
 Courts. 
 
 Chapter Four contains "Miscellaneous Provisions" relating largely to 
 matters of venue. 
 
 Chapter Five sets out the several judicial districts. 
 
 This concludes the provisions relating exclusively to the District 
 Courts. 
 
 Chapter Six provides for nine Circuit Courts of Appeals and gives 
 the States in each circuit. Each of these Circuit Courts of Appeals 
 shall consist of three judges. Judges of the Supreme Court, Circuit 
 Judges and District Judges are eligible to sit in these courts. There 
 are detailed provisions as to the organization of these courts and mat- 
 ters of practice in them. The jurisdiction of these courts, as a class, 
 is given in Sections 128-130, copied below. Other sections confer spe- 
 cial jurisdiction as to different territorial courts, courts in Alaska, etc. 
 
 "Section 128. The Circuit Courts of Appeals shall exercise appellate 
 jurisdiction to review by appeal or writ of error final decisions in the 
 District Courts, including the United States District Court for Hawaii, 
 in all cases other than those in which appeals and writs of error may 
 be taken direct to the Supreme Court, as provided in section two hun- 
 dred and thirty-eight, unless otherwise provided by law; and, except 
 as provided in sections two hundred and thirty-nine, and two hundred 
 and forty, the Judgments and decrees of the Circuit Courts of Appeals 
 shall be final in all cases in which the jurisdiction is dependent entirely 
 upon the opposite parties to the suit or controversy being aliens and 
 citizens of the United States, or citizens of different States; also in all 
 cases arising under the patent laws, under the copyright laws, under 
 the revenue laws, and under the criminal laws, and in admiralty cases. 
 
 "Section 129. Where upon a hearing in equity in a District Court,
 
 688 APPENDIX. 
 
 or by a Judge thereof In vacation, an injunction shall he granted, con- 
 tinued, refused, or dissolved by an interlocutory order or decree, or 
 an application to dissolve an injunction shall be refused, or an inter- 
 locutory order or decree shall be made appointing a receiver, an appeal 
 may be taken from such interlocutory order or decree granting, contin- 
 uing, refusing, dissolving, or refusing to dissolve, an injunction, or ap- 
 pointing a receiver, to the Circuit Court of Appeals, notwithstanding 
 an appeal in such case might, upon final decree under the statutes reg- 
 ulating the same, be taken directly to the Supreme Court: Provided, 
 that the appeal must be taken within thirty days from the entry of such 
 order or decree, and it shall take precedence in the Appellate Court; 
 and the proceedings in other respects in the court below shall not be 
 stayed unless otherwise ordered by that court, or the Appellate Court. 
 or a judge thereof, during the pendency of such appeal: Provided, how- 
 ever, that the court below may, in its discretion, require as a condition 
 of the appeal an additional bond. 
 
 "Section 130. The Circuit Courts of Appeals shall have the appellate 
 and supervisory jurisdiction conferred upon them by the Act entitled 
 'An Act to establish a uniform system of bankruptcy throughout the 
 United States,' approved July first, eighteen hundred and ninety-eight, 
 and all laws amendatory thereof, and shall exercise the same In the 
 manner therein prescribed." 
 
 Chapter Seven deals with the Court of Claims which is not of general 
 Interest. 
 
 Chapter Eight provides for a Court of Customs Appeals to consist 
 of a presiding judge and four associate judges. Its jurisdiction is given 
 In section 195, as follows: , 
 
 "Sec. 195. The Court of Customs Appeals established by this chapter 
 shall exercise exclusive appellate jurisdiction to review by appeal, as 
 herein provided, final decisions by a Board of General Appraisers in all 
 cases as to the construction of the law and the facts respecting the 
 classification of merchandise, and the rate of duty imposed thereon un- 
 der such classification, and the fees and charges connected therewith, 
 and all appealable questions as to the jurisdiction of said board, and 
 all appealable questions as to the laws and regulations governing the 
 collection of the customs revenues; and the judgments and decrees of 
 said Court of Customs Appeals shall be final in all such cases." 
 
 Chapter Nine provides for "The Commerce Court" to consist of five 
 circuit judges, those of the first court to be appointed by the President, 
 thereafter the members to be designated by the Chief Justice of the 
 Supreme Court from among the regular circuit judges. 
 
 Its jurisdiction is as follows: 
 
 "Sec. 207. The Commerce Court shall have the jurisdiction possessed 
 by the Circuit Courts of the United States and the judges thereof im- 
 mediately prior to June eighteenth, nineteen hundred and ten, over all 
 cases of the following kinds:
 
 APPENDIX. 689 
 
 "First. All cases for the enforcement, otherwise than by adjudica- 
 tion and collection of a forfeiture or penalty or by infliction of criminal 
 punishment, of any order of the Interstate Commerce Commission other 
 than for the payment of money. 
 
 "Second. Cases brought to enjoin, set aside, annul, or suspend In 
 whole or in part any order of the Interstate Commerce Commission. 
 
 "Third. Such cases as by section three of the Act entitled 'An Act 
 to further regulate commerce with foreign nations and among the 
 States,' approved February nineteenth, nineteen hundred and three, 
 are authorized to be maintained in a Circuit Court of the United States. 
 
 "Fourth. All such mandamus proceedings as under the provisions 
 of section twenty or section twenty-three of the Act entitled 'An Act 
 to regulate commerce,' approved February fourth, eighteen hundred and 
 eighty-seven, as amended, are authorized to be maintained in a Cir- 
 cuit Court of the United States. 
 
 "Nothing contained in this chapter shall be construed as enlarging 
 the jurisdiction now possessed by the circuit courts of the United States 
 or the judges thereof, that is hereby transferred to and vested in the 
 Commerce Court. 
 
 •The jurisdiction of the Commerce Court over cases of the foregoing 
 classes shall be exclusive; but this chapter shall not affect the juris- 
 diction possessed by any circuit or district court of the United States 
 over cases or proceedings of a kind not within the above-enumerated 
 classes." 
 
 The judgments of the Circuit, Courts of Appeals are subject to revision 
 by the Supreme Court upon appeal as provided in the act. 
 
 Chapter Ten relates to the Supreme Court. This court, as now, con- 
 sists of a Chief Justice and eight Associate Justices appointed by the 
 President, who hold for life or during good behavior. The following 
 sections declare its jurisdiction: 
 
 "Sec. 233. The Supreme Court shall have exclusive jurisdiction of 
 all controversies of a civil nature where a State is a party, except be- 
 tween a State and its citizens, or between a State and citizens of other 
 States, or aliens, in which latter cases it shall have original, but not ex- 
 clusive, jurisdiction. And it shall have exclusively all such jurisdic- 
 tion of suits or proceedings against ambassadors or other public min- 
 isters, or their domestics or domestic servants, as a court of law can 
 have consistently with the law of nations; and original, but not ex- 
 clusive, jurisdiction, of all suits brought by ambassadors, or other pub- 
 lic ministers, or in which a consul or vice consul Is a party. 
 
 "Sec. 234. The Supreme Court shall have power to issue writs of 
 prohibition to the District Courts, when proceeding as courts of ad- 
 miralty and maritime jurisdiction; and writs of mandamus, in cases 
 warranted by the principles and usages of law, to any courts appointed 
 under the authority of the United States, or to persons holding office 
 under the authority of the United States, where a State, or an ambas- 
 sador, or other public minister, or a consul, or vice consul is a party. 
 44
 
 690 APPENDIX. 
 
 "Sec. 235. The trial of issues of fact in the Supreme Court, in all 
 actions at law against citizens of the United States, shall be by jury. 
 
 "Sec. 236. The Supreme Court shall have appellate jurisdicton in the 
 cases hereinafter specially provided for. 
 
 "Sec. 237. A final judgment or decree in any suit in the highest 
 court of a State in which a decision in the suit could be had, where is 
 drawn in question the validity of a treaty or statute of, or an author- 
 ity exercised under, the United States, and the decision is against their 
 validity; or where is drawn in question the validity of a statute of, or 
 an authority exercised under any State, on the ground of their being 
 repugnant to the Constitution, treaties, or laws of the United States, 
 and the decision is in favor of their validity; or where any right, title, 
 privilege,. or immunity is claimed under the Constitution, or any treaty 
 or statute of, or commission held or authority exercised under, the 
 United States, and the decision is against the title, right, privilege, or 
 immunity especially set up or claimed, by either party, under Constitu- 
 tion, treaty, statute, commission, or authority, may be re-examined and 
 reversed or affirmed in the Supreme Court upon writ of error. The 
 writ shall have the same effect as if the judgment or decree complained 
 of had been rendered or passed in a court of the United States. The 
 Supreme Court may reverse, modify, or affirm the judgment or decree 
 of such State court, and may, at their discretion, award execution or 
 remand the same to the court from which it was removed by the writ. 
 
 "Sec. 238. Appeals and writs of error may be taken from the Dis- 
 trict Courts, including the United States District Court for Hawaii, 
 direct to the Supreme Court in the following cases: In any case in 
 which the jurisdiction of the court is in issue, in which case the ques- 
 tion of jurisdiction alone shall be certified to the Supreme Court from 
 the court below for decision; from the final sentences and decrees in 
 prize causes; in any case that involves the construction or application 
 of the Constitution of the United States, in any case in which the con- 
 stitutionality of any law of the United States, or the validity or con- 
 struction of any treaty made under its authority is drawn in question; 
 and in any case in which the constitution or law of a State is claimed 
 to be in contravention of the Constitution of the United States. 
 
 "Sec. 239. In any case within its appellate jurisdiction, as defined 
 in section one hundred and twenty-eight, the Circuit Court of Appeals 
 at any time may certify to the Supreme Court of the United States any 
 questions or propositions of law concerning which it desires the in- 
 struction of that court for its proper decision; and thereupon the Su- 
 preme Court may either give its instruction on the questions and propo- 
 sitions certified to it, which shall be binding upon the Circuit Court of 
 Appeals in such case, or it may require that the whole record and cause 
 be sent up to it for its consideration, and thereupon shall decide the 
 whole matter in controversy in the same manner as if it had been 
 brought there for review by writ of error or appeal.
 
 APPENDIX. 691 
 
 "Sec. 240. In any case, civil or criminal, In which the Judgment or 
 decree of the Circuit Court of Appeals is made final by the provisions of 
 this Title, it shall be competent for the Supreme Court to require, by 
 certiorari or otherwise, upon the petition .of any party thereto, any 
 such case to be certified to the Supreme Court for its review and de- 
 termination, with the same power and authority in the case as if it had 
 been carried by appeal or writ of error to the Supreme Court. 
 
 "Sec. 241. If any case in which the judgment or decree of the Cir- 
 cuit Court of Appeals is not made final by the provisions of this Title, 
 there shall be of right an appeal or writ of error to the Supreme Court 
 of the United States where the matter in controversy shall exceed one 
 thousand dollars, besides costs. 
 
 "Sec. 242. An appeal to the Supreme Court shall be allowed on be- 
 half of the United States, from all judgments of the Court of Claims 
 adverse to the United States, and on behalf of the plaintiff In any case 
 where the amount in controversy exceeds three thousand dollars, or 
 where his claim is forfeited to the United States by the judgment of 
 said court as provided in section one hundred and seventy-two. 
 
 "Sec. 243. All appeals from the Court of Claims shall be taken within 
 ninety days after the judgment is rendered, and shall be allowed under 
 such regulations as the Supreme Court may direct. 
 
 "Sec. 244. Writs of error and appeals from the final judgments and 
 decrees of the Supreme Court of, and the United States District Court 
 for, Porto Rico, may be taken and prosecuted to the Supreme Court 
 of the United States, in any case wherein is involved the validity of 
 any copyright, or in which is drawn in question the validity of a treaty 
 or statute of, or authority exercised under, the United States, or wherein 
 the Constitution of the United States, or a treaty thereof, or an Act 
 of Congress is brought in question and the right claimed thereunder is 
 denied, without regard to the sum or value of the matter in dispute; 
 and in all other cases in which the sum or value of the matter in dis- 
 pute, exclusive of costs, to be ascertained by the oath of either party 
 or of other competent witnesses, exceeds the sum or value of five thou- 
 sand dollars. Such writs of error and appeals shall be taken within 
 the same time, in the same manner, and under the same regulations 
 as writs of error and appeals are taken to the Supreme Court of the 
 United States from the District Courts. 
 
 "Sec. 245. Writs of error and appeals from the final judgments and 
 decrees of the Supreme Courts of the Territories of Arizona and New 
 Mexico may be taken and prosecuted to the Supreme Court of the 
 United States in any case wherein is involved the validity of any copy- 
 right, or in which is drawn in question the validity of a treaty or stat- 
 ute of, or authority exercised under, the United States, without regard 
 to the sum or value of the matter in dispute; and in all other cases in 
 which the sum or value of the matter in dispute exclusive of costs, to 
 be ascertained by the oath of either party or of other competent wit- 
 nesses, exceeds the sum or value of five thousand dollars.
 
 G92 APPENDIX. 
 
 "Sec. 246. Writs of error and appeals from the final judgments and 
 decrees of the Supreme Court of the Territory of Hawaii may be taken 
 and prosecuted in the Supreme Court of the United States, within the 
 same time, in the same manner, under the same regulations, and in the 
 same classes of cases, in which writs of error and appeals from the 
 final judgments and decrees of the highest court of a State in which a 
 decision in the suit could he had, may be taken and prosecuted to the 
 Supreme Court of the United States under the provisions of section 
 two hundred and thirty-seven; and also in all cases wherein the amount 
 involved, exclusive of costs, to be ascertained by the oath of either party 
 or of other competent witnesses, exceeds the sum or value of five thou- 
 sand dollars. 
 
 "Sec. 247. Appeals and writs of error may be taken and prosecuted 
 from final judgments and decrees of the District Court for the district 
 of Alaska or for any division thereof, direct to the Supreme Court of 
 the United States, in the following cases: In prize cases; and in all 
 cases which involve the construction or application of the Constitution 
 of the United States, or in which the constitutionality of any law of the 
 United States, or the validity or construction of any treaty made under 
 Its authority is drawn in question, or in which the constitution or law 
 of a State is claimed to be in contravention of the Constitution of the 
 United States. Such writs of error and appeal shall be taken within 
 the same time, in the same manner, and under the same regulations as 
 writs of error and appeals are taken from the District Courts to the 
 Supreme Court. 
 
 "Sec. 248. The Supreme Court of the United States shall have juris- 
 diction to review, revise, reverse, modify, or affirm the final judgments 
 and decrees of the Supreme Court of the Philippine Islands in all ac- 
 tions, cases, causes, and proceedings now pending therein or hereafter 
 determined thereby, in which the Constitution, or any statute, treaty, 
 title, right, or privilege of the United States is involved, or in causes 
 in which the value in controversy exceeds twenty-five thousand dollars, 
 or in which the title or possession of real estate exceeding in value the 
 sum of twenty-five thousand dollars, to be ascertained by the oath of 
 either party or of other competent witnesses, is involved or brought in 
 question; and such final judgments or decrees may and can be reviewed, 
 revised, reversed, modified, or affirmed by said Supreme Court on ap- 
 peal or writ of error by the party aggrieved, within the same time, in 
 the same manner, under the same regulations, and by the same pro- 
 cedure, as far as applicable, as the final judgments and decrees of the 
 District Courts of the United States. 
 
 "Sec. 249. In all cases where the judgment or decree of any court of 
 a Territory might be reviewed by the Supreme Court on writ of error 
 or appeal, such writ of error or appeal may be taken, within the time 
 and in the manner provided by law, notwithstanding such Territory 
 has, after such judgment or decree, been admitted as a State; and the
 
 APPENDIX. 693 
 
 Supreme Court shall direct the mandate to such court as the nature of 
 the writ of error or appeal requires. 
 
 "Sec. 250. Any final judgment or decree of the Court of Appeals of 
 the District of Columbia may he re-examined and affirmed, reversed, or 
 modified by the Supreme Court of the United States, upon writ of er- 
 ror or appeal, in the following cases: 
 
 "First. In cases in which the jurisdiction of the trial court Is In 
 Issue; but when any such case Is not otherwise reviewable in said Su- 
 preme Court, then the question of jurisdiction alone shall be certified 
 to said Supreme Court for decision. 
 
 "Second. In prize cases. 
 
 'Third. In cases involving the construction or application of the 
 Constitution of the United States, or the constitutionality of any law 
 of the United States, or the validity of any treaty made under Its au- 
 thority. 
 
 "Fourth. In cases in which the constitution, or any law of a State is 
 claimed to be in contravention of the Constitution of the United States. 
 
 "Fifth. In cases in which the validity of any authority exercised 
 under the United States, or the existence or scope of any power or duty 
 of an officer of the United States is drawn in question. 
 
 "Sixth. In cases in which the construction of any law of the United 
 States is drawn in question by the defendant. 
 
 "Except as provided in the next succeeding section, the judgments 
 and decrees of said Court of Appeals shall be final in all cases arising 
 under the patent laws, the copyright laws, the revenue laws, the crim- 
 inal laws, and in admiralty cases; and, except as provided in the next 
 succeeding section, the judgments and decrees of said Court of Ap- 
 peals shall be final in all cases not reviewable as hereinbefore provided. 
 
 "Writs of error and appeals shall be taken within the same time, in 
 the same manner, and under the same regulations as writs of error and 
 appeals are taken from the Circuit Courts of Appeals to the Supreme 
 Court of the United States. 
 
 "Sec. 251. In any case in which the judgment or decree of said court 
 of appeals is made final by the section last preceding, It shall be com- 
 petent for the Supreme Court of the United States to require, by cer- 
 tiorari or otherwise, any such case to be certified to It for its review 
 and determination, with the same power and authority In the case as 
 If it had been carried by writ of error or appeal to said Supreme Court. 
 It shall also be competent for said Court of Appeals, in any case in 
 which its judgment or decree is made final under the section last pre- 
 ceding, at any time to certify to the Supreme Court of the United States 
 any questions or propositions of law concerning which it desires the 
 Instruction of that court for their proper decision; and thereupon the 
 Supreme Court may either give its instruction on the questions or 
 propositions certified to it, which shall be binding upon said Court of 
 Appeals in such case; or it may require that the whole record and cause
 
 694 APPENDIX. 
 
 be sent up to it for Its consideration, and thereupon shall decide the 
 whole matter in controversy in the same manner as if it had been 
 brought there for review by writ of error or appeal. 
 
 "Sec. 252. The Supreme Court of the United States is hereby Invested 
 with appellate jurisdiction of controversies arising in bankruptcy pro- 
 ceedings, from the courts of bankruptcy, from which it has appellate 
 Jurisdiction in other cases; and shall exercise a like jurisdiction from 
 courts of bankruptcy not within any organized circuit of the United 
 States and from the Supreme Court of the District of Columbia. 
 
 "An appeal may be taken to the Supreme Court of the United States 
 from any final decision of a Court of Appeals allowing or rejecting a 
 claim under the laws relating to bankruptcy, under such rules and 
 within such time as may be prescribed by said Supreme Court, in the 
 following cases and no other: 
 
 "First. Where the amount in controversy exceeds the sum of two 
 thousand dollars, and the question involved is one which might have 
 been taken on appeal or writ of error from the highest court of a State 
 to the Supreme Court of the United States; or 
 
 "Second. Where some justice of the Supreme Court shall certify 
 that in his opinion the determination of the question involved in the 
 allowance or rejection of such claim is essential to a uniform construc- 
 tion of the laws relating to bankruptcy throughout the United States. 
 
 "Controversies may be certified to the Supreme Court of the United 
 States from other courts of the United States, and the former court may 
 exercise jurisdiction thereof, and may issue writs of certiorari pur- 
 suant to the provisions of the United States laws now in force or such 
 as may be hereafter enacted. 
 
 "Sec. 253. Cases on writ of error to revise the judgment of a State 
 court in any criminal case shall have precedence on the docket of the 
 Supreme Court, of all cases to which the Government of the United 
 States is not a party, excepting only such cases as the court, in its dis- 
 cretion, may decide to be of public importance." 
 
 Chapter Eleven deals with "provisions common to more than one 
 court." The first section of the chapter declares when the jurisdiction 
 of the Federal Courts shall be exclusive of that of the several State 
 courts, and Is quite interesting. It is in this language: 
 
 "Sec. 256. The jurisdiction vested in the courts of the United States 
 In the cases and proceedings hereinafter mentioned, shall be exclusive 
 of the courts of the several states: 
 
 "First. Of all crimes and offenses cognizable under the authority 
 of the United States. 
 
 "Second. Of all suits for penalties and forfeitures incurred under 
 the laws of the United States. 
 
 "Third. Of all civil causes of admiralty and maritime jurisdiction; 
 saving to suitors, in all cases, the right of a common-law remedy, where 
 the common law Is competent to give it
 
 APPENDIX. 695 
 
 "Fourth. Of all seizures under the laws of the United States, on land 
 or on waters not within admiralty and maritime jurisdiction; of all 
 prizes brought into the United States; and of all proceedings for the 
 condemnation of property taken as prize. 
 
 "Fifth. Of all cases arising under the patent-right, or copy-right 
 laws of the United States. 
 
 "Sixth. Of all matters and proceedings in bankruptcy. 
 
 "Seventh. Of all controversies of a civil nature, where a State la 
 a party, except between a State and its citizens, or between a State and 
 citizens of other States, or aliens. 
 
 "Eighth. Of all suits and proceedings against ambassadors, or other 
 public ministers, or their domestics, or domestic servants, or against 
 consuls or vice-consuls." 
 
 Chapter Twelve regulates juries In the Federal Courts. 
 
 Chapter Thirteen contains general provisions, principally providing 
 against injustice or delay by reason of the changes made by the act 
 
 Chapter Fourteen contains the repealing provisions and still further 
 safeguards the rights of litigants whose cases should be pending when 
 the act goes into effect. 
 
 This concludes the Act.
 
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